P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WAYNE KUTAY, Applicant


Claim No. 97018527

The respondent has filed a petition for review by the commission of an administrative law judge's order in this matter. Wis. Stat. 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 petition 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 . . ."

According to the department's file in this case, the applicant alleges a work injury on August 26, 1990, while working on a construction site for the employer. He filed an application for hearing on February 28, 1997. The department served the application by mail under Wis. Stat. 102.17(1)(a). It used the following address for the respondent-employer (1):

James Kramer
2297 Boot Lake Road
PO Box 191
Eagle River, WI 54521

The respondent did not file an answer. A notice of hearing was sent to the post office box only, but the employer did not appear at the subsequent hearing before ALJ Ryan. Accordingly, ALJ Ryan issued a default order in favor of the applicant, which was dated and mailed on November 10, 1997. The respondent's copy of ALJ Ryan's decision was sent to the post office box only, the street address was not included.

After ALJ Ryan's decision was issued, there was considerable correspondence between the applicant and the department about a social security offset. Meanwhile, on March 13, 1998, the U.S. Postal Service returned the respondent's copy of ALJ Ryan's November 10, 1997 decision to the department with the notation: "RETURN TO SENDER, BOX CLOSED, UNABLE TO FORWARD, RETURN TO SENDER."

On March 17, 1998, the department sent another copy of ALJ Ryan's November 1997 decision to the respondent at his street address, 2297 Boot Lake Road. The record does not indicate why another copy of ALJ Ryan's order was sent to the respondent. The most reasonable inference from the record is that the re-mailing was triggered by the recent return of the first copy mailed to the respondent's post office box on November 10, 1997.

The respondent subsequently filed a petition for commission review signed on March 25, 1998, and received on March 30, 1998. This far exceeds the deadline for filing a petition for commission review, which is 21 days after the date the ALJ decision is mailed to a party's last known address. As noted above, a copy of ALJ Ryan's decision was mailed to the respondent's post office box on November 10, 1997. The respondent's petition is thus late, the question here is whether it was late for a reason beyond his control.

The respondent asserted in his late petition that he never received notice of the claim until the ALJ's decision was mailed (actually re-mailed) to him in March 1998. This prompted an Answer from the applicant's attorney, Andre Smith, dated March 30, 1998. Mr. Smith asserted that the respondent (James Kramer) first rented post office box 191 in January 1990; that James Kramer and JK Enterprises were listed as boxholders; that on February 19, 1997 (nine days before the hearing application was mailed) the respondent renewed his lease on the box for one year; and that the postal service closed the box after February 18, 1998 when the respondent failed to make his annual lease payment.

Thereafter, on April 20, 1998, the commission sent out a briefing schedule. The commission specifically instructed the parties to brief only the issues of the timeliness of the petition and respondent's failure to appear at the hearing before ALJ Ryan.

In his brief, the respondent again states only that he first learned of the case when he got ALJ Ryan's November 1997 decision in March 1998. The respondent notes that while ALJ Ryan's decision lists his post office box as an address, the respondent in fact received it in March 1998 at his home address. He argues that, since the right to a fair hearing includes the right to seasonably know the claims made and since he did not learn of the claim until after the hearing, he should be given another hearing.

In response, the applicant's attorney points out that the respondent admitted in his brief that he in fact leased post office box 191. However, the respondent did not explain why he did not get the hearing notice or other documents sent to him at the post office box, or refute the representations made by the applicant's attorney in his April 9 response to the petition. The applicant also provided an affidavit averring that the applicant's attorney sent several other documents concerning the case to the respondent's post office box.

In his reply brief, the respondent again asserts that he did not receive the decision until it was mailed to him on March 17, 1998. The respondent's brief also states that ALJ Ryan's November 1997 decision was "filed by the department" on March 13, 1998. However, the commission concludes that date was stamped on the returned copy of ALJ Ryan's decision when it was sent back to department by the U.S. Postal Service in March 1998 after the respondent's box expired.

Normally, when a late petitioner contends he did not timely receive the ALJ's decision that "triggers" the appeal, the commission remands for hearing on that allegation. However, the commission does not remand, and instead simply dismisses the petition, when material in the file renders the assertion of non- receipt inherently incredible. (2) This exception ties in with established presumption that mailing a letter will result in delivery and receipt. State ex rel. Flores v. State, 183 Wis. 2d 587, 612 (1994).

In this case, the respondent's assertion seems to be that several documents which the post office sent to him at his post office box were not received by him. If this is an allegation of repeated failure of the mail, it strains credibility. (3) The applicant [*** Note should be "respondent"] admits in his brief that he held the post office box where these documents were sent. Thus, the most reasonable inference from the record is that the applicant [*** Note should be "respondent"] received at least some of the initial documents addressed to his post office box and not returned by the U. S. Postal Service, but then let his box lapse without checking it causing the U.S. Postal Service to return the respondent's copy of the ALJ's decision. In drawing this inference, the commission notes that the respondent did not give provide much explanation about his untimely petition, despite Attorney Smith's March 30, 1998 answer and the commission's specific request that the parties address the timeliness issue in their briefs.

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 petitioner's control, within the meaning of Wis. Stat. 102.18(3).


The petition for review is dismissed.

Dated and mailed: June 30, 1998
kutaywa.wpr : 101 : 8  ND 8.18  9.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner



Appealed to Circuit Court. Affirmed February 24, 1999. Appealed to Court of Appeals. Affirmed  November 9, 1999 ( per curiam).

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(1)( Back ) The workers compensation insurer is listed as unknown.

(2)( Back ) See Podgorski v. ABB Paint Finishing, WC Claim no. 95035783(LIRC, August 29, 1996) aff'd sub nom. ABB Paint Finishing v. LIRC, case no. 97-1922 (Wis. Ct. App., January 6, 1998).

(3)( Back ) ABB Paint Finishing, supra.