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

DANIEL J FORBERGER, Employee

SERVICE FIRST STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09601178MW


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 March 11, 2009, the last day on which a timely petition for review could have been filed was April 1, 2009. The petition for review was filed on November 27, 2009.

The employee explains that his petition was filed after the appeal deadline because, after his eviction, he placed his papers in storage and then lost track of them, and he did not have a permanent mailing address.

However, it was within the employee's control to make arrangements for access to the appeal tribunal decision during and after his moves in order to reference it as needed in filing his appeal (see, Allen v. Wisconsin Web Offset LLC, UI Hearing No. 03601614MW (LIRC July 10, 2003)). Moreover, it was the employee's responsibility, and within his control, to have a mechanism in place, even though he had no permanent address, for monitoring and responding to time-sensitive documents from the department. See, Strasser v. Frontier Motor Cars, Inc., UI Hearing No. 05606504MW (LIRC Oct. 28, 2005) (even if employee still "between houses" during appeal period, would not excuse untimely petition since his responsibility and within his control to establish a reliable mechanism for receiving and responding to time-sensitive mailings from the department).

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 January 13, 2010
forbeda . upr : 115 : 5 PC 731

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


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uploaded 2010/01/26