ROSA E AESCHLIMAN, Applicant
GOLDEN AGE MANOR, Employer
BENCHMARK INSURANCE CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the applicant.
Wisconsin Stat. § 102.18(3) provides, in relevant part, as follows:
A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's decision to the party's last-known address. The commission shall dismiss any petition which is not timely filed unless the petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control . .
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 in relevant part as provides 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.
...
(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition.
The administrative law judge's decision having been dated and mailed on August 10, 2006, the last day on which a timely petition for review could have been filed was August 31, 2006. The petition for review was filed on September 6, 2006, when it was actually received by the commission.
Upon receiving the applicant's petition, the commission sent a "Reasons for Late Petition" form, to which the applicant's attorney responded as follows:
The Administrative Law Judge issued his order on 8/10/06 and, therefore, the last day to file a timely appeal was 8/31/06. I dictated the Petition and cover letter prior to 8/29/06. Both items were originally typed on 8/29/06. I found it necessary to make some corrections and changes to the Petition and that document was retyped on 8/30/06. I was out of the office at the time it was completed. As 8/31/06 was the 21st day after the issuance of Judge Shore's Interlocutory Order and as I had an 8:30 a.m. hearing that morning [case identified by name], I came in before office hours and signed the Petition and attached a post-it note to the cover letter indicating that the Petition should be faxed both to the Commission and Attorney Strande. As a result of clerical error, the Petition was placed in the mail without first being faxed to either the Commission, or Attorney Strande, as I had directed.
In the past, the commission has found a petition to be late for reasons beyond the petitioner's control when, though received late, the petition was placed in the postal stream several days in advance of the appeal deadline.(1) On the other hand, where a petition was mailed on the second-to-last day and arrived a day late, the commission dismissed the petition despite the attorney's representation that he consistently mailed worker's compensation petitions to the commission on the second-to-last day and had never been late before.(2) Here, the petition was not mailed until the last day and the error that caused the petition to be late was not an unexpected delay or mistake by the United States Postal Service.
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. § 102.18(3).
The petition for review is dismissed.
Dated and mailed October 30, 2006
aeschlir . wpr : 101 : 9 ND § 9.2
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Steve M. Jackson
Attorney Jeffrey J. Strande
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