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

ROGER H FRANK, Employee

FIRSTSITE STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05200246NR


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 February 25, 2005, the last day on which a timely petition for review could have been filed was March 18, 2005. The petition for review was postmarked February 6, 2006, and received February 9, 2006, almost a year after the deadline.

In his petition, the employee offered as one of the explanations for his untimely petition the fact that he had been attending counseling sessions for personal problems and for depression. As a result, by order dated March 23, 2006, the commission remanded this matter to the department to provide the employee the opportunity to prove at hearing that he was medically incapacitated during and after the relevant appeal period.

The employee testified at the remand hearing that he received the appeal tribunal decision (ATD) "either right around the deadline or right after the deadline." He explained that he was spending several weeks at a time staying with his mother in Hudson because she was experiencing health problems, and may not have been home as a result when the ATD was first delivered. The employee did not appeal it when he received it because it was not a priority for him at the time and he "figured it was late already." He discovered a month or two later, after contacting the department, that he could file a late appeal, but did not do so then because it did not appear to matter how late an untimely appeal actually was. He finally decided to file an appeal of the ATD when a lien was filed against him to collect the overpayment.

The employee attended assessment/counseling sessions through the Polk County Human Services Department (remand exhibit #3). He attended an intake session on January 6, 2005; a medication management/psychological evaluation session on January 20, 2005; testing sessions on March 3, 10, and 17, 2005; a medication management/psychological evaluation session on March 24, 2005; testing sessions on March 31 and April 7, 2005; a therapy session on May 19, 2005; and medical management sessions on March 26 and June 2, 2005.

The employee attended and participated in the hearing on the merits of his claim on February 22, 2005. The notice for this hearing was mailed by the department to the employee's address of record on February 11, 2005.

In order to satisfy the standard set forth in Wis. Stat. § 108.09(6)(a), that there was a reason beyond his control, the employee would have to show that his medical condition during the appeal period was actually incapacitating, and prevented him from filing a timely petition. See, McCloud v. Badger Meter, Inc., UI Hearing No. 99606530MW (LIRC May 10, 2000); McMurtry v. Refrigerant Recovery, Inc., UI Hearing No. 03601987MD (LIRC July 24, 2003); Prinz v. Curative Care Network, Inc., UI Hearing No. 05604778MW (LIRC May 25, 2006); Mayr v. Modern Equipment Co., Inc., UI Hearing No. 04404217MW (LIRC March 3, 2005); Heinrich v. Mineral Point Public School, UI Hearing No. 04006155MD (LIRC April 22, 2005).

The employee contends that he experienced the symptoms of his depression from January through June of 2005, and the side effects of his medication during February and March of 2005. The fact that the employee attended and participated in a department hearing on February 22, 2005; frequently traveled to Hudson, Wisconsin, and assisted his ill mother several weeks at a time from February of 2005 through February of 2006 (remand exhibit #2); and independently attended and participated in scheduled assessment/counseling sessions from January through June of 2005, including three sessions during the appeal period, militate against a conclusion that he was medically incapacitated or otherwise prevented from independently meeting the demands of his personal life during the time period relevant here. See, Heinrich, supra.; Mayr, supra. Moreover, the fact that the only side effect of his medication to which the employee testified at hearing was some decreased memory/concentration, resulting in an occasional inability to remember telephone numbers, does not establish the type of limitation sufficient to prove a medical incapacity.

It should also be noted that the employee testified that his condition improved in June or July of 2005, and he was then able to attend to the demands of his personal life. However, despite this claimed improvement, the employee did not file his petition until February of 2006, seven months later.

The other explanation provided by the employee for his untimely petition was the fact that he was away from his address of record for several weeks at a time from February of 2005 through February of 2006 caring for his ill mother. However, it was his responsibility, and within his control, to establish a reliable mechanism for receiving and responding to time-sensitive mailings from the department during these absences. See, Mlodik v. Almond Bancroft School District, UI Hearing No. 05000194MD (LIRC June 23, 2005); Butts v. Cyclone Communications, UI Hearing No. 06601634WK (LIRC May 12, 2006); Ahmed v. FSQ, Inc., UI Hearing No. 03604285MW (LIRC Oct. 7, 2003)(employee's stay in California to help care for ill mother did not provide reason beyond control for filing late appeal).

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 July 13, 2006
frankro2 . upr : 115 : 2  PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc: First Site Staffing, Amery, WI


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