LEDA B EHLENFELDT, Employee

CARE PARTNERS, 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 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. 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 October 9, 2009, the last day on which a timely petition for review could have been filed was October 30, 2009. The petition for review was filed on November 12, 2009.

The employee asserts that she actually transmitted her petition by facsimile machine on October 30, 2009, and provides as proof a copy of a receipt from Copps Food Center in Stevens Point. This receipt indicates that the item or service purchased was credited to "fax income," the total purchase was $8.44, and the purchase occurred on October 30, 2009. at 9:51 p.m. The printed receipt does not indicate who sent the fax; the number to which the fax was sent; the content of the fax; or, in fact, whether a fax was even sent or received.

This would be insufficient to prove that the employee actually transmitted her petition on or before the October 30, 2009, deadline. As the commission has held under circumstances parallel to those under consideration here, timely filing must be proved through a confirmation of receipt form or other comparably reliable documentation of the transmission's content, destination, and receipt. See, Smith v. Domino's Pizza, UI Hearing No. 06602790MW (LIRC July 7, 2006).

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 petition for review is dismissed.

Dated and mailed December 11, 2009
ehlenle . upr : 115 : 1 PC 731

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Care Partners Assisted Living (Stevens Point, Wisconsin)

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uploaded 2009/01/12