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


DAVID MARTINEZ, Employe

ACME DIE CASTING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606903RC


The employe has filed a petition for review by the commission of an appeal tribunal decision in this matter. Wis. Stat. § 108.09(6)(a) provides:

"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 . . ."

The appeal tribunal decision having been dated and mailed on November 3, 1998, the last day on which a timely petition for review could have been filed was November 24, 1998. The petition for review was received November 27, 1998. It was postmarked November 25, 1998.

The employe was sent a Reasons for Late Petition for Commission Review form allowing the employe the opportunity to explain why his petition was late. The employe returned that form and indicated that he mailed his appeal on November 24, 1998 at the Kenosha Post Office. The employe could not explain why the petition was received late. The employe's petition was postmarked November 25, 1998, in Milwaukee.

The commission has previously held that where a petitioner contends that a petition was placed in the postal stream on the day prior to the date of the postmark, and when the postmark indicates a different town than that from which it was mailed, the petition may be deemed timely filed. The commission's rationale is that a post office's decision to postmark mail at a different location from where it was deposited is not a procedure of which a reasonable person can be expected to be aware. See e.g., Rader v. Gary Bula Farms Inc., UI Dec. Hearing No. 96005164BO (LIRC Mar. 5, 1997); Blochowiak v. CAAP Inc., UI Dec. Hearing No. 91609706 (LIRC Dec. 4, 1992).

The commission therefore finds that the employe filed a timely petition for commission review within the meaning of Wis. Stat. § 108.09(6)(a).

DECISION & ORDER

The employe's petition for review is accepted. This matter is remanded to the hearing office for a hearing and decision on the employe's failure to appear at the scheduled hearing and, provisionally, on the merits of the employe's appeal.

Dated and mailed: January 7, 1999
martida.upr : 132 : 1 PC 731

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


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