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

JOHN E KAISER, Applicant

ADM MILLING COMPANY, Employer

OLD REPUBLIC INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996010271

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 applicant.

Wis. 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 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 . . ."

The administrative law judge's decision having been dated and mailed on April 13, 1999, the last day on which a timely petition for review could have been filed was May 4, 1999. The petition for review was received May 6, 1999.

On the Reasons for Late Petition for commission review form, the applicant stated, essentially, that given the language of the statute and the code it was very unclear when the 21 day period started running. The decision says, specifically, "Dated at Madison, Wisconsin this 13th day of April, 1999".

The applicant argues that the statute, code and appeal instructions indicate three different descriptions of the date the time period begins to run (the date of the order, the date of issue, and the date of mailing). He asserts that it is very unclear as to when the 21 day filing period began in this case.

The applicant was mailed a copy of the decision, as was the applicant's attorney. The only date on the decision is April 13. Therefore, it should have been assumed that the decision was mailed when it was dated. In addition, the appeal instructions indicate that the appeal must be received 21 days from the date of the order. The only possible date of the order, given the language in the order itself, is April 13. At the very least, this should have alerted the applicant or his attorney to the possibility that the appeal period would run from the date of the order. If this was unclear, he should have contacted the department for an explanation. Even if he found the language to be confusing, he should have been alerted to the fact that the appeal period began on April 13 because that is the only date that appears on the decision. The fact that there is no "mailed" date is a good indication that the order was mailed when it was "Dated." While the applicant and his attorney may have been confused about the appeal deadline, their failure to clarify the last date to appeal does not amount to a reason beyond applicant's control for his failure to file a timely petition for commission review.

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

DECISION

The petition for review is dismissed.

Dated and mailed June 22, 1999
kaisejo.wpr : 145 : 3 ND § 9.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY RONALD G TAYS
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC

ATTORNEY ROBERT H ZILSKE
ZILSKI LAW FIRM SC

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