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

HANS R HARTLEBEN, Employee

COURTESY SPORTS INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09001016WR


An administrative law judge (ALJ), acting as an appeal tribunal for the Department of Workforce Development, issued a decision in this matter on April 6, 2009, finding that the employee had quit his job and was for that reason ineligible to receive unemployment insurance benefits. The employee subsequently filed a petition for commission review of the ALJ's decision.

The Wisconsin statutes provide, at Wis. Stat. § 108.09 (6)(a), 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 . . ."

The rules of the commission provide, at Wis. Admin. Code § LIRC 1.02, 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 . . .

Because the ALJ's decision was dated and mailed on April 6, 2009, the last day on which a timely petition for review could have been filed was April 27, 2009.

Neither the department nor the commission received anything from the employee until April 29, 2009. On that day, an executive staff assistant in the office of the Secretary of the department received an e-mail from a member of the Governor's staff, forwarding a message that the employee had e-mailed to the Governor's office on April 14. Then on the following day, April 30, the employee filed a petition for commission review electronically through the commission's website. Regarding the fact that the petition for review was untimely, the employee wrote:

I had sent what I thought was an appeal to the governor's office within the time constraint. I later was notified this was not the correct procedure.

The issues for decision are whether the employee's petition for review was timely, and, if it was not, whether the employee has shown probable good cause that the reason for having failed to file the petition timely was beyond his control.
 

Discussion -- The e-mail which the employee sent to the Governor's office on April 14 was insufficient as a petition for commission review of the April 6 ALJ's decision, for two reasons.

As noted above, the statutes clearly require, in Wis. Stat. § 108.09(6)(a), that a petition for commission review of an ALJ's decision in a UI case must be filed with either the commission or the department.

In addition, the administrative rules of the commission provide, at Wis. Admin. Code. § LIRC 2.01, as follows:

2.01 Petitions for review; where filed. (1) Except as provided in subs. (2) and (3) [relating to petitions by interstate claimants, and petitions by the department], a petition for commission review of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be filed with any of the following:

(a) The division of unemployment insurance of the department, at any of the following locations:

1. The Madison hearing office...

2. The Milwaukee hearing office...

3. The Eau Claire hearing office...

4. The Fox Valley hearing office...

5. The central administrative office of the division's bureau of legal affairs...

(b) The commission...

An objection to an ALJ's decision which is sent somewhere other than one of the required locations for filing a petition for commission review, is not sufficient as a petition. See, Mathis v. Sunrise Care Center (LIRC, Dec. 27, 2007).

In addition to the fact that the April 14 e-mail message from the employee was not sufficient as a petition for commission review because it was not filed with the commission or the department, it was also not sufficient as a petition for commission review because it was sent by e-mail. The administrative rules of the commission also clearly provide that, except for the methods of filing by facsimile transmission or filing electronically through the website of the commission, petitions for commission review cannot be filed by e-mail or any other method of electronic data transmission. Wis. Admin. Code § LIRC 1.025(2)

The employee was clearly informed of the required procedures for filing an appeal of an ALJ's decision. On the first page of the ALJ's decision, there is a prominent, capitalized heading, "APPEAL RIGHTS", under which there is a detailed notice about the required procedures for filing an appeal. It begins by stating,

This decision will become final unless a written appeal is filed within 21 days from the date of this decision. (See date below). The appeal may be filed at a UI hearing office or the Labor and Industry Review Commission office.

This notice thus specifically describes the locations at which an appeal of the decision may be filed. There is nothing on this page stating or even suggesting that an appeal may be filed at any other location, including the Governor's office.

In addition, the first page of the ALJ's decision contains a prominent, capitalized notice, "SEE REVERSE FOR ADDITIONAL INFORMATION", and on the back of that page, under the heading "APPEAL TRIBUNAL DECISION INFORMATION", and next to the very first entry, "APPEAL RIGHTS", there is the following:

The attached decision will become final unless a written appeal is received or postmarked within 21 days from the date of this decision (see "Appeal Must Be Received Or Postmarked By" date on the front of this decision). You may mail, fax or deliver your petition for review to this hearing office or to the commission, or file your petition over the Internet by following the directions at dwd.wisconsin.gov/lirc/petition.htm...

This notice thus specifically describes the locations at which an appeal of the decision may be filed, and the manner in which such an appeal may be filed. There is nothing on this page stating or even suggesting that an appeal may be filed at any other location, including the Governor's office, and there is nothing which states or suggests that the appeal may be filed by sending an e-mail.

It was clearly within the employee's power to have filed a timely petition for commission review in the manner authorized by law. He was well-informed of the deadline for filing an appeal and the methods by which that had to be done. The employee had no reasonable basis for thinking that he could file a petition for Labor and Industry Review Commission review of a Department of Workforce Development ALJ's decision, by sending an e-mail to the Governor's office.

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 May 8, 2009
hartlha . upr : 110 : 1  PC 731

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: Because the employee did not file a timely petition for review, the decision of the ALJ became final, and the commission has no power to exercise its review authority under § 108.09(6)(d). The commission does have the authority, under Wis. Stat. § 108.09(6)(c), on its own motion and for reasons it deems sufficient, to set aside any final decision of an ALJ and take action in the case. However, the commission does not do so here because it sees nothing in the record suggesting there was error in the ALJ's decision.

 


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uploaded 2009/05/11