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

KEVIN KENT, Applicant

R & M ENTERPRISES BIG SKY BUILDERS, Employer

ROLAND BROWN, Employer

MARIE BROWN, Employer

WORKER'S COMPENSATION DECISION
Claim No. 94050986

Two petitions for review have been filed in this case. The first, filed by Marie Brown in her own behalf and not on behalf of the other respondents, was received by the Workers Compensation Division on January 9, 1998. The second, filed on behalf of R&M Enterprises, Big Sky Builders and Roland Brown, was received by the Workers Compensation Division on January 13, 1998.

Wisconsin Statute § 102.18(3) provides, in 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 . . ."

Wis. Admin. Code § LIRC 1.02 provides in relevant part as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. "Received" means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code § LIRC 3.01 provides in relevant part as follows:

"A petition for commission review of the findings or order of a department of workforce development administrative law judge under s. 102.18, Stats., shall be received within 21 days from the date of mailing of the findings and order to the parties . . ."

The administrative law judge's order having been dated and mailed on December 22, 1997, the last day on which a timely petition for review could have been filed was January 12, 1998. As noted above, while Marie Brown's petition was received timely on January 9, 1998, the petition filed on behalf of Roland Brown, et al., was filed one day late on January 13, 1998.

Copies of the ALJ's decision on review in this matter were sent to the parties and their lawyers. The commission cannot conclude that Roland Brown's petition for commission review was late for a reason beyond his control, within the meaning of Wis. Stat. § 102.18 (3). Thus, regardless of whether the commission were to affirm or reverse the underlying ALJ decision in this matter, the petition filed on behalf of Roland Brown, et al., is untimely and must be dismissed.

The commission next considers the actual substance of ALJ Schneiders's December 22, 1997 decision from which the respondents petition for commission review. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

DECISION

The petition for review filed on behalf of R&M Enterprises, Big Sky Builders and Roland Brown is dismissed. The findings and order of ALJ are affirmed.

Dated and mailed: May 28, 1998
kent.wpr : 101 : 8 ND § 8.18

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

At the outset, the commission notes that, while it dismissed the petition of Roland Brown, et al., as untimely, it has fully considered the petition and the arguments offered in support of that petition. The commission concludes that, even if the commission had not dismissed Roland Brown's petition, it would have still affirmed the ALJ's decision for the reasons set out below.

The ALJ's decision on appeal here is the third in this case. The respondents contend they were unaware of the ALJ's first decision issued in October 1995, or the hearing preceding it. The respondents acknowledge receiving the second decision issued in January 1997, though they deny they received notice of the hearing preceding that decision. On petition for review from the second decision, the commission remanded this case for a third hearing to determine whether the employer had good cause for failing to appear at the hearings preceding the October 1995 and January 1997 decisions of the ALJ in this matter. The ALJ issued her third decision, the decision now on review, after the remand hearing.

The applicant was injured while working on a construction job in Wisconsin in June 1994. The general contractor was evidently R&M Enterprises. In October 1994, the application for hearing naming "Roland & Marie Brown d/b/a R&M Enterprises and Big Sky Builders, Inc.," as "employer" was served by mail to 49 Monterey Drive in Vernon Hills, Illinois. A notice for the first hearing on the application was sent to that address in May 1995. Correspondence related to subsequent proceedings has also been sent to the business entities at that address, and to Roland Brown and Marie Brown at other addresses.

Roland Brown and Marie Brown admit that Monterey Drive was their home address until August 1994, and that they periodically returned to that address before the property was sold in June 1995. Roland Brown also admits that Monterey Drive was the business address of R&M Enterprises. (1)

The commission, like the ALJ, concludes that the department and the applicant substantially complied with Wis. Stat. § 102.17(1)(a) with respect to the notices of the hearings in this matter. That section requires that the hearing notice be mailed to the interested party's last-known address at least ten days before the hearing. The section also requires that if a party is located outside the state and has no post-office address within the state, copies of various documents including the notice should be sent by certified mail to the last known address with a copy to the secretary of state. (2)

The department's file indicates that, beginning with the ALJ's January 1997 decision, documents sent to the Monterey Drive address in Vernon Hill, Illinois have been returned by the post office as undeliverable. None of the earlier documents sent to the Monterey Drive address in 1994 though 1996 were returned, nor were the documents sent to the Browns individually. This leads to the inference that the earlier documents which were not returned were in fact delivered, and renders incredible the testimony of Roland Brown and Marie Brown that they never received notice of the first two hearings. Moreover, the record indicates that if the hearing application and hearing notices were not forwarded to the Browns after they moved, that was due at least in part to their lack of diligence in ensuring that all mail, including business mail was forwarded.

The commission acknowledges that copies were not sent by certified mail. However, the fact remains that Roland Brown, and evidently R&M Enterprises and Big Sky Builders, Inc., had substantial presence in Wisconsin. In addition, the commission, like the ALJ, finds incredible the Browns' assertion that they did not receive the hearing notices. Thus, any technical noncompliance with the certified mail requirement under Wis. Stat. § 102.17(1)(a) is moot.

In conclusion, the efforts of the department and the applicant were sufficient to give the department jurisdiction in this case. The relevant documents were sent not only to the admitted last-known business address of R&M Enterprises, but later the addresses of the Browns individually as well. Indeed, because the interested party is the business entity as employer, and not necessarily the Browns as separate individuals, the efforts of the department and applicant in some respect exceed the requirements of statute.

cc: ATTORNEY PAUL J CLYMER
GAGLIARDI NELSON & OBRIEN

ATTORNEY MICHAEL T MEURER
MEURER LAW OFFICES

ATTORNEY STEVEN C HARVEY
WASSEL LAW OFFICES

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Footnotes:

(1)( Back ) Big Sky Builders, Inc., is a Wisconsin Corporation. R&M Enterprises is described both as a sole proprietorship under which Roland did business in Illinois (Meurer brief dated October 27, 1997), or a "subsidiary" of Big Sky Builders, Inc., which did business in Illinois and Wisconsin. June 30, 1997 synopsis, page 4.

(2)( Back ) Now the Wisconsin department of financial institutions.