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

ESTHER Y GREER, Employee

OLYMPUS FLAG & BANNER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604940MW


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 filed within 21 days from the date of mailing of the findings and decision or order . . .

The administrative law judge's decision having been dated and mailed on August 31, 2006, the last day on which a timely petition for review could have been filed was September 21, 2006. The petition for review was filed on October 6, 2006.

The employee explains that her petition was filed after the appeal deadline because she injured her back at work and fell down the stairs, and was under a doctor's care from September 20-27, 2006. The employee encloses certain medical documents to corroborate her explanation.

However, in order to satisfy the reason beyond control standard, the employee's medical condition is required to have been sufficiently incapacitating to have actually prevented her from filing a timely petition for commission review. See, McMurtry v. Refrigerant Recovery, Inc., UI Hearing No. 03601987MD (LIRC July 24, 2003); McCloud v. Badger Meter, Inc., UI Hearing No. 99606530MW (LIRC May 10, 2000).

The medical documentation supplied by the employee shows that she received emergency outpatient treatment on April 24, 2006, for a facial contusion; emergency outpatient treatment on May 22, 2006, for nausea and vomiting; and emergency outpatient treatment on September 25, 2006, with a return to work date of September 27, 2006. None of this documentation relates to the appeal period at issue here, i.e., August 31-September 21, 2006. The simple fact, as the employee represents, that she was under a physician's care during a period of time which included the last two days of the appeal period, does not establish, given the medical documentation she has provided, and even by reasonable implication, that she was medically incapacitated during that period of time.

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 October 27, 2006
greeres . upr : 115 : 8   PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


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


uploaded 2006/10/30