LARRY J LAPAN, Employee

AFFORDABLE PROPERTY MAINTENANCE, 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.

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. If the commission's or department's records indicate receipt of the facsimile at a date later than that shown, then the later date shall control. ...

The administrative law judge's decision having been dated and mailed on March 19, 2009, the last day on which a timely petition for review could have been filed was April 9, 2009. The petition for review was filed on April 11, 2009.

The employer failed to sustain its burden to prove, as it has asserted, that it transmitted its petition prior to the April 9 appeal deadline. The employer failed to offer any other reason beyond its control for its untimely petition.

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 employer's request for continuance of the remand hearing is denied. The petition for review is dismissed.

Dated and mailed July 20, 2009
lapanla3 . upr : 115 : 5  PC 731

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer's petition for commission review was sent and received through facsimile transmission. On the petition is printed a transmission date/time of April 7, 2009 at 12:26; a receipt date/time of April 11, 2009, at 2:11 p.m.; and a date stamp of April 13, 2009. This document was sent to, and received by, a department fax machine.

The employer was asked by the commission to provide an explanation for its untimely petition. The employer's response to this request was also sent and received through facsimile transmission. On the employer's response is printed a transmission date/time of April 23, 2009 at 9:55; and a receipt date/time of April 27, 2009, at 10:49 a.m. This document was sent to, and received by, a commission fax machine.

The employer explained to the commission that its petition was not filed late, and offered in support the April 7, 2009, transmission date printed on the petition. The employer disputed the accuracy of the date of receipt printed on the petition by the department fax machine.

As a result, the commission remanded this matter to the department by order dated May 14, 2009, which stated as follows:

Pursuant to authority granted in Wis. Stat. § 108.09(6), the Labor and Industry Review Commission remands this matter to the hearing office for a hearing before an administrative law judge, acting on behalf of the commission, with respect to whether the employer's petition for commission review was late for a reason beyond its control, and specifically, to provide the employer the opportunity to prove, as it has asserted, that its petition was sent and received through facsimile transmission on April 7, 2009.

In the Memorandum Opinion section of its order, in footnote #1, the commission provided the following guidance to the employer as to possible means by which it could sustain its burden of proof:

It could accomplish this, for example, by offering a confirmation of receipt form generated by the transmitting machine to this effect (see, Williams v. Certco, Inc., UI Hearing No. 04002130MD (LIRC July 9, 2004)); or by showing that the department fax machine log shows receipt of the petition on April 7.

The remand hearing was conducted on June 25, 2009.

At the remand hearing, the employer's owner acknowledged that the fax machine he used to transmit the petition generated a confirmation of receipt form. He did not, however, offer such a form into evidence. The employer's owner also acknowledged that this fax machine generates a transmission log but did not offer such a log into evidence.

The employer's owner testified that he transmitted the petition on April 7, 2009. However, due primarily to inconsistencies in the evidence offered by the owner, the commission has not credited this testimony. For example, in testifying as to the accuracy of the dates and times printed on transmitted documents by his office fax machine, the employer's owner first indicated that his secretary checked the accuracy of the dates and times printed by this machine every day, and signed that she had done so. The owner later testified, however, that he no longer had a secretary, and apparently he had not had one at the time he transmitted the petition. Although the owner then testified that his secretary had shown him how to check the accuracy of the dates and times printed by the fax machine, he did not testify that he performed such a check at or around the time he faxed his petition.

The employer's owner requested a continuance of the remand hearing to provide him an opportunity to generate a confirmation of receipt form and a transmission/receipt log from the fax machine he used to transmit the employer's petition. However, the employer had ample opportunity to generate these documents prior to the remand hearing, and had even been guided by the commission to do so, and his request for a continuance is, as a result, denied.

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