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

LINDA  E  KLATT, Applicant

WISCONSIN ELECTRIC POWER CO, Employer

WISCONSIN ELECTRIC POWER CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994044198

On February 15, 2000, Administrative Law Judge Cathy A. Lake issued Findings and an Order which dismissed the applicant's claim for additional compensation allegedly attributable to the conceded work injury of June 22, 1994. Pursuant to Wis. Stat. § 102.18(3), the last day for timely receipt of a petition for commission review was March 7, 2000, but the applicant's petition was not received until March 10, 2000.

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 . . ." (Emphasis added)

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 by the worker's compensation division, or the commission at: . . ."

Applicant's attorney explained that the petition was originally mailed as certified mail on March 1, 2000, but due to a "clerical mistake" insufficient postage was placed on the envelope. The post office did not return the undelivered petition to applicant's attorney until March 8, 2000, when it was received with the message "returned for postage" stamped on it.

While the error made by the applicant's attorney's employe amounted to ordinary negligence, it did not constitute a matter beyond the petitioner's control. Applicant's attorney assumed responsibility for timely filing the petition by virtue of his representation of the applicant, and it was within his control to make timely filing. Utilizing reasonable care the petition could have been timely filed. Furthermore, the commission concludes that the applicant's attorney's error must be imputed to the applicant, in order to facilitate proper and efficient operation of the worker's compensation system. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284-85, 470 N.W.2d 859 (1991).

The commission therefore finds that the petition for commission review was not timely and that the applicant has not shown probable good cause that the reason for having failed to file the petition timely was beyond her control, within the meaning of Wis. Stat. § 102.18(3).

NOW, THEREFORE, this

ORDER

The petition for review is dismissed as untimely. The administrative law judge's Findings and Order remain in effect.

Dated and mailed March 23, 2000
klattli . wpr : 185 : 5   ND § 9.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY THOMAS BUSH

ATTORNEY LYNNE ENGLISH
WISCONSIN ELECTRIC POWER CO

Appealed to Circuit Court. Affirmed March 16, 2001.

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