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

DEBORAH L AGUADO, Employee

DEPARTMENT OF CORRECTIONS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003304MD


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:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015....

The administrative law judge's decision having been dated and mailed on August 27, 2007, the last day on which a timely petition for review could have been filed was September 17, 2007. The petition for review was filed on October 1, 2007.

The appeal tribunal decision (ATD) at issue directed that wages paid to the employee by the employer not be included in the employee's base period wages for purposes of computing the amount of benefits to which she was entitled. On September 18, 2007, after the appeal period for the ATD had expired, the department implemented this ATD by issued a recomputation of the employee's benefit amount. This recomputation stated that any objection to it was required to be filed on or before October 2, 2007.

The employee explains, at lest by implication, that she filed a timely petition for commission review of the ATD by filing a timely appeal of the recomputation. However, an appeal of the recomputation would not constitute an appeal of the ATD, which specifically stated an appeal deadline after which it would become final. Moreover, since the recomputation was issued after the appeal period for the ATD had already expired, any assumptions the employee drew from the recomputation could not have led to her failure to file an appeal of the ATD before the September 17 deadline.

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 25, 2007
aguadde . upr : 115 : 1   PC 731

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


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uploaded 2007/10/29