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

KRISTIN M CHAN, Employee

EXTENDICARE HEALTH SERVICES INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10611921MW


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 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.

Wisconsin Admin. Code § LIRC 2.01, provides, in relevant part, as follows:

(1) Except as provided in subs. (2) and (3), 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, at 1801 Aberg Ave., Suite A, P.O. Box 7975, Madison, Wisconsin 53707-7975 (FAX: 608-242-4813).

2. The Milwaukee hearing office, at 819 N. 6th St., Rm. 382, Milwaukee, Wisconsin 53203-1606 (FAX: 414-227-4264).

3. The Eau Claire hearing office, at 715 S. Barstow St., Suite 1, Eau Claire, Wisconsin 54701-3880 (FAX: 715-836-1360).

4. The Fox Valley hearing office, at 926 Westhill Blvd., Appleton, Wisconsin 54914 (FAX: 920-832-5434).

5. The central administrative office of the division's bureau of legal affairs, at P.O. Box 8942, Madison, Wisconsin 53708 (FAX: 608-266-8221).

(b) The commission, at its office at 3319 West Beltline Highway, P.O. Box 8126, Madison, Wisconsin 53708 (FAX: 608-267-4409).

The ALJ's decision was dated and mailed on December 16, 2010. It states on the first page, a cover sheet, that it is an "APPEAL TRIBUNAL DECISION" (emphasis in original), and that an appeal must be received or postmarked by January 6, 2011. It also states, in part:

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 COMMISSSION (sic) OFFICE. . . .

The reverse side of the cover sheet provides "APPEAL TRIBUNAL DECISION INFORMATION" (emphasis in original), and the first section, entitled "APPEAL RIGHTS" reads as follows:

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 the commission, or file your petition over the Internet by following the directions at dwd.wisconsin.gov/lirc/petition.htm.  If the appeal is timely, the commission will review the evidence already presented at the hearing to make a decision. No further hearing will be held unless the commission so orders.

On January 4, 2011, the employee attempted to appeal the ALJ's decision. However, she did not use the website for the Labor and Industry Review Commission (commission) to file a petition for review by the commission, as instructed above. Instead, she used the website for the Department of Workforce Development, Unemployment Insurance Division (department), for filing appeals to department determinations and filled in the form for appealing a department determination, rather than the ALJ's appeal tribunal decision.

Instructions for the appeal form she used state, as relevant here and with emphasis in the original:

This form may ONLY be used to appeal an Unemployment Insurance DETERMINATION.

This form may NOT be used to appeal: . . .
Appeal Tribunal Decisions . . .

Subsequently, the employee became aware that she had not properly appealed the ALJ's decision, and on January 20, 2011, she filed her petition for commission review(1) of the ALJ's appeal tribunal decision using the commission's online website. She apologized for filing her petition for review improperly, and stated that her father had died on December 11, 2010, and her fianc was hospitalized on December 19th and he underwent surgery on December 27th.

Therefore, the issue before the commission is whether the employee's petition for commission review was late and, if so, whether it was late for a reason beyond her control.

The commission recently addressed a similar fact situation involving use of the department's website to petition for commission review of an ALJ's appeal tribunal decision, rather than the commission website, in Lewis v. SLG Consulting & Food Management LTD, UI Hearing No. 10607589MW (LIRC Feb. 3, 2011). In Lewis, the commission found that it was within the employee's control to carefully read the instructions for obtaining a review of the ALJ's appeal tribunal decision, and to file her online petition for review properly using the commission's online website. The same rationale applies here.

The first page of the ALJ's decision clearly designates the decision as an appeal tribunal decision, and the reverse side of that first page provides a detailed description of the employee's appeal rights, specifically stating that such an appeal is done by a petition for review and listing the correct website address to file a petition for commission review. In addition, the department's website also clearly states that the form that the employee used on January 4th was not to be used to appeal an appeal tribunal decision.

Therefore, the commission finds that the employee's January 4th attempt to appeal the ALJ's appeal tribunal decision was insufficient as a petition for commission review, and her proper appeal by petition, filed on January 20th on the commission website, was filed late. In addition, the commission finds that her failure to carefully read the appeal tribunal decision and to follow the instructions for filing an appeal to that decision online, by use of a petition for commission review, does not constitute a reason beyond her control for filing a late petition for review.

In this regard, the commission has considered the language contained on the front page of the cover sheet of the appeal tribunal decision that states that an appeal may be filed "at a UI hearing office." This language reflects Wisconsin Admin. Code LIRC 2.01, with street and mailing addresses for the four hearing offices, and their fax numbers, and corresponds with Wisconsin Admin. Code LIRC 1.025(1) for personal delivery, mail delivery or faxed transmission of an appeal to a hearing office. In contrast, the online method of filing an appeal is specifically set forth in Wisconsin Admin. Code LIRC 1.025(4), as well as at the website provided on the back of the appeal tribunal decision cover sheet. The instructions for properly filing an appeal to the appeal tribunal decision, by petition for commission review, were clear and were available to the employee, and she did not follow them.(2)

Additionally, the commission has decided other cases of improperly filed petitions and appeals in a similar fashion. See, e.g., Murray v. Veterans Affairs, UI Hearing No. 10002143MD (LIRC June 11, 2010) (employee's erroneous use of the commission's website for online petitions of workers compensation appeal tribunal decisions in order to file an online appeal of an unemployment insurance determination was not a reason beyond party's control); Hartleben v. Courtesy Sports Inc., UI Hearing No. 09001016WR (LIRC May 8, 2009) (e-mail to governor's office insufficient as a review petition to the commission); Mathis v. Sunrise Care Center, UI Hearing No. 07605282MW (LIRC Dec. 27, 2007) (Madison call center not a location at which a petition to the commission can be faxed); Alawiye v. Karmenta Health Resources, UI Hearing No. 07003383MD (LIRC Nov. 13, 2007) (using the wrong address on a petition is not a reason beyond one's control for a late petition).

In addition, although the commission sympathizes with the employee's difficult family matters, these circumstances do not provide a reason beyond her control for filing her petition late. See, e.g., Swenson v. Menard, UI Hearing No. 10005429MD (LIRC February 14, 2011) (although demands of personal life challenging, do not prevent one from attending to other responsibilities, not reason beyond control); Mama de Marinis Original Recipes, Inc. v De Marinis Pizza Place Inc., UI Hearing No. S9800152MW (LIRC July 15, 1999) (working and caring for ill mother not reason beyond control).

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 March 18, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner



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Footnotes:

(1)( Back ) Wisconsin Stat. 108.09(6) provides for commission review of an unemployment insurance appeal tribunal decision and, as noted at the beginning of this decision, uses the phrase "petition the commission for review of an appeal tribunal decision."

(2)( Back ) Although the language is clear, the department may wish to review its appeal tribunal decision form to ensure consistency of terms used and to emphasize the distinction between an appeal of a departmental determination and a petition for commission review of an appeal tribunal decision.