SHAWANA C LOFTON, Employee

BEL RESOURCE 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 employer. On June 2, 2006, the commission remanded this matter for a hearing on whether the employer filed a late petition for review for a reason beyond its control.

The administrative law judge's decision having been dated and mailed on April 20, 2006, the last day on which a timely petition for review could have been filed was May 11, 2006. The petition for review was filed on May 12, 2006.

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 . . ."

The employer maintained that it faxed its petition for commission review on May 10, 2006. However, the department stamped the document received on May 12, 2006. The hearing office's fax transmission logs confirmed that a document was received from the employer on May 12. The fax transmission logs did not indicate that a document was received from the employer on May 10, 2006. The record did not reflect that the department experienced other instances in May of 2006 involving other parties where the party asserted that a fax had been sent at a particular time but was not received until a later date. A fax machine can be set to reflect a document was sent at a time or on a date that it was not in fact transmitted. There is no reason in the record to conclude that the hearing office's fax machine is set to the incorrect date or time. Based on the testimony presented at the hearing, the commission concludes that the employer faxed the petition on May 12. The employer did not establish that its petition was late for a reason beyond its control.

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 September 15, 2006
loftosh . upr : 132 : 1   PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Bel Resources, Inc. (Milwaukee, Wisconsin)

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uploaded 2006/09/18