TAMMY SEIDLER, Applicant

US OIL COMPANY INC, Employer

ZURICH AMERICAN INSURANCE COMPANY
c/o MARYLAND INSURANCE CO

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 insurer.

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 provides, in relevant part, 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.

(4) Except in the case of petitions for review in fair employment and public accommodations cases under s. 106.52 or 111.39(5), Stats., petitions for review may be filed electronically through the internet website of the commission, at the page found at http://dwd.wisconsin.gov/lirc/petition.htm. Successful filing of a petition for review electronically through the internet website of the commission will result in a display on the petitioner's internet browser of a message confirming that the petition has been successfully filed. A petition for review transmitted electronically through the website of the commission is not deemed filed unless and until the confirmation message is displayed. The commission is not responsible for errors in transmission that result in failure of a petition to be successfully filed electronically through the website of the commission. A petition for review filed electronically through the internet website of the commission is deemed filed on the date of filing stated on the commission's electronic record of the filing."

The administrative law judge's decision having been dated and mailed on October 10, 2007, the last day on which a timely petition for review could have been filed was October 31, 2007. The petition for review was filed by facsimile on November 1, 2007.

The insurer's attorney wrote the following in the petition:

"I dictated the Petition on October 16. I was under the impression that it had been mailed to the commission shortly after its dictation. I directed my assistant to order the transcript which she did. I reviewed my file and discovered after 5:00 p.m. yesterday [October 31, 2007] that the petition had not gone out. I would have reviewed the file earlier yesterday but was unable to do so because of a family emergency involving my 19-year-old daughter, Emily. But for this emergency, of which I will be willing to provide additional details by affidavit on request, I would have reviewed the file earlier in the day, would have discovered that the Petition had not gone out and would have faxed it to the Commission yesterday."

The commission is not persuaded that the attorney's family emergency prevented him from timely petitioning the commission. First, the attorney could have checked his dictation sooner than the last day for appeal, especially given that it was dictated on October 16, 2007. Further, upon discovering that the petition had not been mailed by 5:00 p.m. on the last day, the attorney could have transmitted the petition by facsimile or e-mail after 5:00 p.m. on the last day. See Wis. Admin. Code § LIRC 1.025(3) and 1.025(4).

The commission therefore finds that the petition for commission review was not timely and that the insurer has not shown probable good cause that the reason for having failed to file the petition timely was beyond the insurer's control, within the meaning of Wis. Stat. § 102.18 (3).

The petition for review is dismissed.

Dated and mailed December 6, 2007
seidlta . wpr : 135 : 1   ND § 9.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc:
Attorney Robert Angermeier
Attorney Stanley J. Lowe

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2008/01/02