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

LYNDA M YANEL, Applicant

UNITED HOSPITAL SYSTEM INC, Employer

ARROWOOD INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2007-030586


ORDER


The employer and insurer filed a petition for commission review of the department's order dated July 15, 2008, which was received by the department on August 6, 2008. The last day to file a timely petition for commission review was August 5, 2008. The employer's attorney indicated in a letter dated August 18, 2008, that she did not receive a copy of the department's order until July 23, 2008, at which point the client was not available until August 4, 2008 to discuss the decision. The employer's attorney states that the petition for commission review was filed by the U. S. Postal Service on August 4, 2008, and under normal circumstances the mail reaches Madison within one day from its offices.

However, the employer and insurer have failed to show probable good cause that the reason for failure to timely file a petition for commission review was beyond the petitioners' control. The fact that the employer's attorney was on vacation until July 23, 2008, and the attorney's contact with the employer was not available because she was on vacation until August 4, 2008 does not establish that the reason for failure to file a timely petition was beyond its control. The employer could have filed a petition for commission review on a timely basis, and if need be withdraw the petition at a later date after discussion with the employer's agent. The fact that the employer's representative was not available because she was on vacation until August 4, 2008 does not establish that the employer could not have had someone else make the decision to file the petition in this case on a timely basis. The reasons presented for filing a late petition for commission review do not establish that the failure was for a reason beyond the employer and insurer's control. Therefore, pursuant to Wis. Stat. § 102.18(3) the employer and insurer's petition for commission review is hereby dismissed as untimely.

Dated and mailed September 29, 2008
yanelly . wpr : 175 : 8 ND 9.2

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc: Attorney James Pitts
Attorney Lisa Kinney


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