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

JUDITH ANN DORN, Applicant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Employer

CITY OF MILWAUKEE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997037263

An administrative law judge 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 presumption is that the term "days," when used in a statute or administrative code provision that states a time period within which an action must be taken, means calendar days and includes, for example, Saturdays and Sundays. Wis. Stat. § 990.001(4).

While not required by the statutes or administrative code, the department encloses information about appeal rights, (form WKC-8753-P) when the administrative law judge's decision is mailed to a party and to that party's agent or representative. The enclosure clearly states that the appeal period is computed in calendar days.

Here, the administrative law judge's decision having been dated and mailed on April 23, 1999, the last day on which a petition for review could have been timely received was May 14, 1999. The applicant's petition for review was received on May 24, 1999.

The applicant asserts that her petition was late for a reason beyond her control, within the meaning of Wis. Stat. § 102.18 (3), set forth above.

Specifically, the applicant asserts that although she received the administrative law judge's decision dated and mailed on April 23, 1999, she "was not informed" that May 14, 1999 was the last day on which a petition for commission review of that decision could be timely received.

The applicant was represented in this matter by an agent to whom a copy of the administrative law judge's decision was also mailed on April 23, 1999. The applicant's representation by an agent is reflected in the record of the hearing held in this matter on April 12, 1999.

At the hearing, a representative from the applicant's union was identified as the applicant's agent. The commission takes administrative notice that the same individual was also identified as the applicant's agent or representative in all documents beginning with the applicant's claim dated June 18, 1998, and continuing throughout the pendency of this case, until the applicant personally filed her late petition.

The applicant has not contended that her agent did not receive the appeal rights enclosure with the agent's copy of the administrative law judge's decision.

The applicant asserts that her agent left a message on the applicant's answering machine late in the afternoon of May 21, 1999, informing the applicant (erroneously) that May 24, 1999, was the last day a petition could be timely received. The applicant then prepared and submitted her petition. As indicated above, applicant's petition was received by the department on May 24, 1999. The petition was therefore received ten days after the end of the statutory appeal period.

The commission has consistently held parties responsible for the actions or omissions of their agents. Only rarely has the commission deemed the circumstances of an agent's late filing of a petition as justifying an exception. An example would be a case in which an agent timely prepared and mailed an appeal document but the appeal was received late because the agent addressed it incorrectly, in circumstances under which the commission considered that a reasonably prudent person could have made the same mistake. Such precedent is not applicable to the facts of this case.

The appeal rights enclosed with decisions states, in part,

The petition for review (appeal) must be received by the Department of Workforce Development within 21 calendar days from the date which appears on the order.

The commission considers that a reasonably prudent person, acting as the applicant's agent, would read the appeal rights enclosure with sufficient care to understand that the statutory period includes all calendar days and would therefore act to ensure that a petition, if desired by the applicant, would be timely received.

The date which appears on the order in this case was April 23, 1999. Twenty-one calendar days would expire on May 14, 1999. Accepting the applicant's assertion that the agent told her the appeal period would expire on May 24, 1999, it seems likely that the agent counted only "weekdays" (Monday through Friday).

The commission therefore finds that the applicant's petition for commission review was not timely and that the petition does not show probable good cause that the reason for failure to timely file was beyond the petitioner's control, within the meaning of Wis. Stat. § 102.18 (3).

DECISION

The applicant's petition for review is dismissed.

Dated and mailed July 12, 1999
dornjud.wpr : 200 : 5  ND § 9.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: CLAUDYNE WHITAKER
MILW TEACHERS EDUCATION ASSOC

HEIDI WICK SPOERL
ASST CITY ATTORNEY

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