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

DEAN G RHODES, Employe

RURAL MUTUAL INSURANCE CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402128GB

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 employer.

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 November 4, 1999, the last day on which a timely petition for review could have been filed was November 26, 1999. The petition for review was received November 30, 1999. It was postmarked November 29, 1999.

In response to the Reasons for Late Petition for Commission Review form, the employer's representative indicates that the employer's appeal was late because of confusion surrounding the Thanksgiving weekend. The employer's representative asserts that this is probable good cause for the employer's late petition for review. The "probable good cause" standard does not refer to the legal standard to be met for a late petition, however; rather, it concerns the quantum of evidence that must be presented. The legal standard for a late appeal is "reason beyond control"; that is, unless an appeal was late for a reason beyond the appellant's control, dismissal is required by the statutes. In this case, however, the appellant's representative has not established that the petition was late for a reason beyond its control. Confusion over the Thanksgiving holiday is insufficient as a matter of law to establish that an appeal was late for a reason beyond the appellant's 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 December 17, 1999
rhodede.upr : 105 : 1 PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

cc:
ATTORNEY NORMAN D FARNAM
ATTORNEY JEFFREY S DUNN

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