KEVIN KUBACKI, Applicant

COUNTY OF MILWAUKEE, Employer
SHERIFFS DEPARTMENT
c/o COUNTY CLERK

COUNTY OF MILWAUKEE, Insurer
DEPARTMENT OF RISK MANAGEMENT

Administrative law judge (ALJ) Neil L. Krueger of the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. The applicant filed a petition for review.

Wisconsin 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 petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control . . ."

Wisconsin 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. . ."

Wisconsin 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 . . ."

ALJ Krueger's decision states that it was dated and mailed on May 13, 2002. Based on that date, the last day on which a timely petition for review could have been filed was June 3, 2002. The commission received the applicant's petition for review by facsimile transmission on June 5, 2002.

With the applicant's petition for review, the applicant's attorney, Lynn Layber, included a letter stating that while ALJ Krueger's decision recites that it was dated and mailed on May 13, 2002, she received the decision in an envelope postmarked on May 15, 2002. This, Ms. Layber asserted, establishes a mailing date of May 15, 2002, so that the applicant's June 5, 2002, petition for review was timely.

On the strength of the representation from Ms. Layber, the commission's general counsel, James L. Pflasterer, sent a letter to the parties on June 17, 2002. Mr. Pflasterer's letter informed the parties that the commission would accept the applicant's petition for review as timely, and would proceed with review.

Immediately thereafter, however, Mark Grady, the attorney for the employer (Milwaukee County), wrote to the commission. Mr. Grady stated that he did not get a copy of the applicant's petition for commission review, even though Ms. Layber's June 5, 2002 letter indicated he was to receive a courtesy copy.  Mr. Grady also attached Milwaukee County's copy of ALJ Krueger's decision with Milwaukee County date-stamps indicating a May 14, 2002 receipt -- suggesting, of course, a May 13 date of mailing. Mr. Grady further stated that because ALJ Krueger's decision says it was mailed on May 13, that date should be taken as the date of mailing. On that point, Mr. Grady cited a prior commission decision, Kaiser v. ADM Milling, WC case no. 1996010271 (LIRC, June 22, 1999). Milwaukee County asked the commission to dismiss the applicant's petition as untimely.

On July 31, 2002, the commission issued an order withdrawing its tentative acceptance of the applicant's petition for review, and directing the taking of additional evidence on the facts involving Ms. Layber's receipt of ALJ Krueger's decision. The commission's order stated that the commission particularly desired the admission into evidence of the envelope in which Ms. Layber received her copy of ALJ Krueger's decision. Accordingly, a hearing was held before ALJ Sherman C. Mitchell on October 15, 2002.

Ms. Layber appeared at the hearing before ALJ Mitchell, and testified she could not find the original envelope. October 15, 2002, transcript, page 20-21. She also testified, however, that the envelope in which she received ALJ Krueger's decision was postmarked May 15 and that the postmark had not been tampered with. Transcript, page 43.

The commission ordinarily assumes that the findings and orders of the department are mailed when they say they are mailed. In the Kaiser decision cited by Milwaukee County, the commission stated:

"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."

In Kaiser, the applicant apparently did not assert he received the decision at issue in an envelope bearing a later postmark date than the decision date. Kaiser, thus, indicates that in the absence of other evidence, a decision should be assumed to have been mailed on the day that it is dated.

In other words, Kaiser states a rebuttable presumption. An irrebuttable or conclusive presumption that a decision is mailed on the day it recites it was dated and mailed, in the face of evidence establishing a later actual date of mailing, could potentially run afoul of Wis. Stat. § 102.18(3). That section clearly starts the clock running when a decision is actually mailed, not when the decision is dated or recites that it was mailed.

Has the presumption that ALJ Krueger's decision was actually mailed as recited on May 13, 2002, been rebutted by virtue of the copy of the envelope introduced as exhibit 2 at the hearing before ALJ Mitchell?  Under Wis. Stat. § 910.03 a duplicate -- that is a photocopy -- of a writing is admissible to the same extent as an original to prove its contents, unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate.

In this case, there is a genuine question as to the authenticity of the original from which the photocopy of the envelope was made. First, of course, ALJ Krueger's decision is dated May 13, not the May 15 date on the photocopy of the missing envelope. Second, Milwaukee County received its copy on May 14. Third, Ms. Layber was unable to locate the original envelope from which the photocopy was produced, even though its paramount importance on this issue should have immediately been apparent, even at the time the original was photocopied for attachment to the petition for review. Under these facts, the photocopy of the envelope provided by Ms. Layber is insufficient to rebut the presumption that ALJ Krueger's decision was mailed when dated on May 13, 2002.

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).

The petition for review is dismissed.

Dated and mailed December 17, 2002
kubacke2 . wpr : 101 : 3   ND 9.2

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: 
Attorney Mark A. Grady
Attorney Lynne Layber

Appealed to Circuit Court.  Affirmed June 30, 2003.

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