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

LAQUISHA S LEWIS, Employee

SLG CONSULTING & FOOD MANAGEMENT LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10607589MW


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.

(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. . .

The ALJ's decision was dated and mailed on October 18, 2010, and stated on its fact that it was an "APPEAL TRIBUNAL DECISION" (emphasis in original), and that any appeal must be received or postmarked by November 8, 2010.

The reverse side of this appeal tribunal decision stated the following:

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 November 8, 2010, the employee attempted to file an appeal of the ALJ's decision on the department's, not the commission's , website, using the "Online Appeal to Unemployment Insurance Determination-Entry Form." The instructions for this form state as follows, as relevant here (emphasis in original):

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

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

It was within the employee's control to carefully review the instructions in the appeal tribunal decision, and in the online form, in filing her appeal of the ALJ's decision. The ALJ's decision was prominently denominated an "APPEAL TRIBUNAL DECISION," and stated in its instructions that any online appeal was required to be filed through the commission's website at the stated website address. The instructions for the department's online form clearly state that it may not be used to appeal an appeal tribunal decision.

Although Wis. Adm. Code § LIRC 2.01 provides that petitions for commission review may be filed with any of the hearing offices of the division of unemployment insurance of the department of workforce development, or the division's bureau of legal affairs, it is apparent form the language of this provision, in which only the street, mailing, and fax numbers of these offices are provided, that it is not intended to apply to electronic filing, or to supersede the language of Wis. Adm. Code § 1.025(4).

Because the employee failed to direct her appeal of the ALJ's decision to the correct online address, she did not file an appeal before the November 8 deadline. The employee has not offered a reason beyond her control for this failure.

On November 9, 2010, the department informed the employee that she had improperly utilized its online form in her attempt to appeal the ALJ's decision, no action would be taken based upon the information she had submitted, and she should refer to the appeal instructions she had received with the ALJ's decision. On November 11, 2010, three days after the appeal deadline, the employee filed a letter of appeal with the department's Milwaukee hearing office. This has been processed as the employee's petition for commission review of the appeal tribunal decision in this matter.

The only explanation the employee has offered for filing her petition three days after the deadline is that she had been busy looking for work, and had marked the wrong appeal deadline date on her calendar.

However, although it may make attending to one's other responsibilities more challenging, the demands of work search efforts do not actually prevent one form attending to these other responsibilities and do not, as a result, provide a reason beyond control for filing an untimely appeal. See, In re: Smith, UI Hearing No. 04601400MW (LIRC March 16, 2004).

In addition, it was within the employee's control to read the determination when she received it and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

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 February 2, 2011

BY THE COMMISSION:

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

PC 731


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