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


TERRY W CLINE, Employe

INITIAL SECURITY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400303GB


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employer's request for hearing on the merits is dismissed. The determination shall remain in effect.

Dated and mailed May 10, 1999
clinete.usd : 132 : 6  PC 711  PC 714.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer's representative has petitioned for commission review of the adverse appeal tribunal decision which found that the employer failed to file a timely request for hearing and did not establish that his failure to file a timely request for hearing was for a reason that was beyond his control. The employer's representative states in its petition that due to the reliability of the United States Postal Service, the appeal tribunal can only speculate that the employer's representative mishandled or lost the determination. The employer's representative maintained that no evidence of probative value was presented to establish that the United States Postal Service never looses or misdirects documents that have been entrusted to their care. The employer's representative maintains that without such firsthand testimony from the U.S. Post Office to verify that this document was, in fact, delivered to the employer's representative, assumption should be made that the initial determination was lost or misdirected by the post office and not by the employer's representative. The commission cannot agree.

There is a rebuttable presumption that mail properly addressed is received. State ex rel. Flores, 183 Wis.2d 587, 612 (1994); Mullen v. Braatz, 179 Wis. 2d 749 (Ct. App. 1993). Proof of mailing need not be direct but may be shown by evidence of office custom and compliance therewith. Christnacht v. ILHR Department, 68 Wis. 2d 445 (1934). Proof of such mailing here is that the initial determination is contained in the file with a date indicating it was mailed and indicating that it was mailed to the employer c/o Frick Co. Further evidence of receipt is that the file does not reflect that the initial determination was returned to the department.

The employer argues in its petition that no evidence of probative value was presented to establish that the US Postal Service never looses or misdirects documents. While this true, as indicated above, the law recognizes a presumption that mail properly addressed is delivered. Therefore, the burden actually falls on the employer to prove that it did not receive the mail. The commission agrees with the ALJ that the hearing consultant's testimony was not sufficient to rebut the presumption of receipt.

cc: JAMES S KOERNER
C/O INITIAL SECURITY


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