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

DAWN THEDE, Applicant

JOERNS HEALTH CARE INC, Employer

AMERICAN INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-037037

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 a 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 decision having been dated and mailed on June 15, 2000, the last day on which a timely petition for review could have been filed was July 6, 2000. The petition for review was received July 12, 2000.

The applicant's attorney explains that the ALJ's decision was received June 28, 2000 while she was on vacation. The applicant's attorney filed the applicant's petition immediately upon her return from vacation. The petition was due on or before July 6, 2000 and was received six days later on July 12, 2000. The applicant's attorney's explanation fails to establish that it was beyond the applicant's control to have filed a timely petition. The applicant and her attorney were aware that a decision would be rendered sometime in the near future. The applicant's attorney failed to timely monitor time sensitive mail and as such this failure is not a reason beyond the applicant's control. While the result may be harsh, a party is responsible for her agent's failures since she chose the attorney to act on her behalf. Consequently, the attorney's failure to properly monitor time sensitive mail resulting in a late petition filing does not constitute a reason beyond a party's control and as such the applicant's petition must be dismissed.

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

DECISION

The petition for review is dismissed.

Dated and mailed September 27, 2000
thededa.wpr : 135 : 1  ND § 8.17  § 8.18

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY VERONICA ISHERWOOD
LACHAPELLE RUSHEVICS & LLOYD

ATTORNEY KATHLEEN E GRANT
GRANT LAW FIRM SC

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