ASHLEY M HOUCHINS, Employee

ARBYS ROAST BEEF RESTAURANT, 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:

(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.

(2) Except as provided for in subs. (3) and (4), petitions for review may not be filed by e-mail or by any other method of electronic data transmission.

(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.

(4) Except in the case of petitions for review in fair employment and public accommodations cases under s. 106.52 or 111.39(5), Stats., petitions for review may be filed electronically through the internet website of the commission, at the page found at http://dwd.wisconsin.gov/lirc/petition.htm. Successful filing of a petition for review electronically through the internet website of the commission will result in a display on the petitioner's internet browser of a message confirming that the petition has been successfully filed. A petition for review transmitted electronically through the website of the commission is not deemed filed unless and until the confirmation message is displayed. The commission is not responsible for errors in transmission that result in failure of a petition to be successfully filed electronically through the website of the commission. A petition for review filed electronically through the internet website of the commission is deemed filed on the date of filing stated on the commission's electronic record of the filing.

(5) Petitions for review may not be filed by telephone.

The administrative law judge's decision having been dated and mailed on February 10, 2010, the last day on which a timely petition for review could have been filed was March 3, 2010. The petition for review was filed on March 5, 2010.

The employee states that sometimes her mail is delayed and she was unsuccessful in her attempts to contact a claims specialist. However, it is the employee's responsibility to ensure that she has a system in place that allows her to receive her mail in a timely fashion. Further, the decision states that questions should be directed to the hearing office. The hearing office number was on the decision. The employee was calling the number to speak to a claims specialist.

The employee also states that she did not know to file on line because it says to only file on line if it is a first time petition and her case had already been petitioned. The commission believes the employee is referring to the following language on its website:

Please Note: This form may NOT be used to appeal from an Initial Determination issued by a department deputy. This form is ONLY for filing an appeal of an administrative law judge's Appeal Tribunal Decision.

The above note does not state that only a first time petition can be filed on line. It states that the site can only be used to appeal a decision of an administrative law judge. Further, the employee did not previously file a petition, that is, a request for commission review of a decision by an administrative law judge. The employee previously filed an appeal to the determination issued by the adjudicator/department deputy.

The commission therefore finds that the petition for commission review was not timely and that the employee has not shown probable good cause that the reason for having failed to file the petition timely was beyond the employee's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

The petition for review is dismissed.

Dated and mailed April 9, 2010
houchas : 132 : PC 731

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Arby's Roast Beef Restaurant (Beloit, WI)
Continental Inc.

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uploaded 2010/05/12