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

AARON P DASSOW, Employee

GOLDEN COUNTY FOODS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07002337MD


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 . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

... (3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition....

The administrative law judge's decision having been dated and mailed on June 15, 2007, the last day on which a timely petition for review could have been filed was July 6, 2007. The employee filed his petition by means of facsimile transmission, and the date of transmission recorded and printed by the transmitting facsimile machine was July 7, 2007.

The employee explains that he "sent in my appeal letter within 21 days of receipt of the letter." However, the operative date for measuring the 21-day appeal period is not the date of the employee's receipt of the appeal tribunal decision (ATD), but instead the date the ATD was issued by the department.

Here, the ATD was issued on June 15 and the appeal period expired 21 days later, i.e., on July 6, 2007, as stated on the face of the ATD.

The employee dated and transmitted his petition on July 7, 2007, the day after the appeal period had expired.

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 30, 2007
dassoaa . upr : 115 : 1   PC 731

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


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uploaded 2007/07/30