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

ELIAS ZARATE, Applicant

DELPHI CORPORATION, Employer

DELPHI CORPORATION, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-012812

The applicant submitted a late petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on July 6, 2007. The threshold issue is whether there was good cause for the lateness of the applicant's petition. The petition alleged error in the administrative law judge's findings regarding the amount of temporary total disability, the offset of sick leave benefits against temporary total disability, and failure to address the issue of permanent partial disability.

The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The administrative law judge's decision was issued on July 6, 2007, and pursuant to Wis. Stat. § 102.18(3), the applicant had until Friday, July 27, 2007, to timely file a petition for commission review. The applicant's attorney has indicated that he miscalculated the length of the 21-day appeal period, and believed that the last day fell on Sunday, July 29, 2007. He therefore believed that the petition would be timely if it was filed on Monday, July 30, 2007, because Wis. Stat. § 990.001(4)(3) provides that if the final day of an appeal period falls on a Sunday, the appeal period is extended to the following Monday.

A simple miscalculation of the appeal period does not amount to good cause for filing a late petition. Accordingly, the applicant's petition will be dismissed.

However, on its own motion, the commission notes that in the administrative law judge's decision he made no specific finding regarding the issue of permanent partial disability. It may be that the administrative law judge intended to reject the applicant's claim for permanency, but no finding was made in this regard. Pursuant to Wis. Stat. § 102.18(4)(c), on the grounds of mistake, the commission will exercise its authority to set aside the administrative law judge's decision and remand the matter to the department for a new decision, based on the record made at the hearing held on April 18, 2007. The new decision shall address all issues, including the issue of permanent partial disability. Issuance of the new department decision will result in a new appeal period pursuant to Wis. Stat. § 102.18(3).

NOW, THEREFORE, this

ORDER


Pursuant to the commission's authority under Wis. Stat. § 102.18(4)(c), the administrative law judge's decision issued in this matter on July 6, 2007, is set aside. The matter is remanded to the department for issuance of a new order addressing all the issues raised, including the issue of permanent partial disability.

Dated and mailed September 26, 2007
zaratel . wpr : 185 : 9 ND § 9.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc:
Attorney David C. Bangart
Attorney Paul R. Riegel

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