STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

YER THAO, Employee

NORTHERN ENGRAVING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003725MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employee.

Wisconsin Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. 'Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing . . ."

Wisconsin Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on November 15, 2005, the last day on which a timely petition for review could have been filed was December 6, 2005. The petition for review was postmarked February 8, 2006. It was received February 10, 2006.

The employee did not appear for the properly noticed July 27, 2005, hearing on the merits of her claim. She explained to the department that she does not read or write English and did not, as a result, understand the hearing notice until she went to the LaCrosse Area Hmong Mutual Assistance Association on August 15, 2005, to have it translated for her. A department administrative law judge issued the appeal tribunal decision at issue here on November 15, 2005, finding that the employee did not sustain her burden to show good cause for her failure to attend the July 27 hearing, and dismissing her request for hearing as a result.

The employee offers the same explanation for her untimely petition, i.e., she does not read or write English and did not understand that there was a deadline for appealing the appeal tribunal decision until she went to the LaCrosse Area Hmong Mutual Assistance Association on or around February 7, 2005, two months after the appeal deadline.

However, it was within the employee's control to find someone, prior to the appeal deadline, to translate and explain the appeal tribunal decision to her. See, In re: Maria Larios, UI Hearing No. 03401809AP (LIRC June 30, 2003); Varnado v. MacMoore Ptrshp McDonalds, UI Hearing No. 04601995MW (LIRC March 26, 2004). The importance of doing this in a timely fashion should have been particularly apparent to the employee after she missed the hearing on the merits of her claim because she waited too long to find someone to translate and explain the department hearing notice for her. The employee should have been more diligent in requesting assistance from the department or from other resources in the community, and her failure to do so does not provide a reason beyond her control for her untimely petition for commission review.

The commission therefore finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

DECISION

The petition for review is dismissed.

Dated and mailed February 28, 2006
thaoyer . upr : 115 : 1   PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Allan Yang
Northern Engraving Corp. (West Salem, Wisconsin)
Peter Thao


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/03/07