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

UDORA HUBANKS, Employe

BSG MAINTENANCE CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601362MW

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 employe.

Wis. 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 . . ."

Wis. Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. "Received" means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on March 15, 1999, the last day on which a timely petition for review could have been filed was April 5, 1999. The petition for review was received April 22, 1999. It was postmarked April 21, 1999.

The employe indicates on her Reasons for Late Petition for Commission Review form that she does not read well, and that that is why her petition for review was late. The employe may not use this excuse to justify the late appeal, however. The department and commission have long required parties in circumstances similar to the employe's to make some kind arrangement so as to be able to timely respond to documents from the department. This can include asking department personnel about the effect of the determination or seeking help from a neighbor, friend, or family member, for example. Since it was within the employe's control to have sought assistance in understanding the appeal tribunal decision, she may not use lack of understanding of the decision to justify the late appeal.

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 May 26, 1999
hubanud.upr : 105 : 3 PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

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