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

SOPHIA M SALVIA, Employee

CLEAR-VU WINDOW CLEANING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10611097MW


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.

(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 . . .

The administrative law judge's decision having been dated and mailed on January 7, 2011, the last day on which a timely petition for review could have been filed was January 28, 2011. The petition for review was filed on February 1, 2011.

The employee explains that she filed her petition on time, but received a letter stating she could not file an on-line appeal. Consistent with the employee's explanation, department records indicate that on January 18, 2011, the employee attempted to file a petition for commission review of the appeal tribunal decision on the Department of Workforce Development website that is designed for appealing initial determinations. On January 19, the hearing office sent the employee a letter notifying her that she had attempted to file an on-line appeal using a form that stated it could only be used to appeal an initial determination, and that could not be used to file a petition of an appeal tribunal decision. The employee was notified that no action would be taken based upon the information she submitted and that she should refer to the instructions she received with her decision for methods of filing an appeal to that decision.

Although the above-referenced letter was sent to the employee on January 19, more than a week prior to the deadline for filing a timely appeal, the employee made no effort to correctly file her appeal until February 1, 2011. She has failed to provide any explanation for this delay.

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 28, 2011

BY THE COMMISSION:

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Daniel Shillinglaw
Sophia M. Salvia,


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uploaded 2011/04/29