ANGELA DABNEY, Employee

ROETTGERS COMPANY INC, Employer

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 August 1, 2002, the last day on which a timely petition for review could have been filed was August 22, 2002. The petition for review was received March 20, 2006, more than 3.5 years after this appeal deadline.

In her petition, the employee enclosed a March 13, 2006, notice she received from the Wisconsin Department of Revenue that $941.46 of her tax refund would be applied to her delinquent UI account. In her letter, the employee stated that she had never received notice of the overpayment which formed the basis for this delinquent account.

In an order dated April 21, 2006, the commission remanded this matter to the department for a hearing, on behalf of the commission, to provide the employee an opportunity to prove that, prior to March of 2006, through no fault of her own, she did not receive the appeal tribunal decision issued on August 1, 2002, or did not otherwise receive actual or constructive notice of the subject denial of benefits/assessment of overpayment.

At the May 16, 2005, remand hearing, the department witness testified that the following had been mailed to the employee by the department:

In addition, department records show that the department determination was mailed to the employee on June 6, 2002, and the appeal tribunal decision on August 1, 2002.

The employee testified that, of these 11 pieces of correspondence, she received only one, i.e., the July 8, 2003 collection letter. The employee does not dispute that these 11 pieces of correspondence were mailed to the proper addresses.

The only contact that the employee had with the department during the time period relevant here occurred on July 22, 2003, when she phoned and left a message for Tracy Brandl, the author of the collection letters. Brandl testified that she returned the call and left a message for the employee with a person who answered the phone. The employee testified that she did not receive this message. The employee also testified that, even though she was under the impression that Brandl had not returned her message, she did not phone Brandl again or attempt to communicate with the department in any way until March of 2006.

There is a rebuttable presumption that mail properly addressed and placed in the postal stream is received. See, State ex rel. Flores, 183 Wis.2d 587 (1994); Hong v. Pedro's Mexican Restaurant, UI Hearing No. 98001460MD (LIRC June 29, 1998); McLeod v. West Bend Fence, UI Hearing No. 03608301WB (LIRC March 31, 2004). The commission has held that the fact that a department decision is contained in the department's file with a date indicating it was mailed, and the fact that the department's file does not reflect that the decision was returned, adequately proves that the decision was placed in the postal stream. Cline v. Initial Security, UI Hearing No. 99400303GB (LIRC May 10, 1999); In re: Toddliz, Inc., UI Hearing Nos. S9800272MD, etc. (LIRC Feb. 23, 2001). The department's file in this matter reflects that the appeal tribunal decision was properly addressed to the employee's address of record, set forth a mailing date, and was not returned to the department.

The burden would then shift to the employee to rebut the presumption of receipt. The employee's version of events is simply not plausible, and she failed to sustain this burden. She testified that, although she was not experiencing any problems with her mail delivery in 2002 and 2003, she did not receive 10 pieces of correspondence from the department mailed to the proper address, including the ATD at issue here. The department witness testified that none of this correspondence was returned to the department by the postal service. See, McLeod, supra. (not plausible that employer would receive all its mail except two pieces of correspondence from the department).

Moreover, even if the employee had not received the ATD, she would have had constructive notice of its existence in 2002 and 2003 as the result of the other correspondence directed to her from the department, including the July 2003 collection letter she admits she received. Despite this notice, the employee made no effort to investigate or appeal this matter until March of 2006.

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).

The petition for review is dismissed.

Dated and mailed June 9, 2006
dabnean2 . upr : 115 : 4  PC 731 LIRC

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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