ALAN R BRANDT, Applicant

PAN O GOLD BAKING CO, Employer

AMERICAN PROTECTION INS CO, Insurer

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.

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 . . ."

The administrative law judge's decision having been dated and mailed on November 4, 2003, the last day on which a timely petition for review could have been filed was November 25, 2003. The petition for review was received December 2, 2003.

The applicant explains that his petition was untimely based on the date his attorney had provided him in a letter. In this letter the applicant's former attorney incorrectly informed him that he had 30 days from the date of the ALJ's decision to petition the commission. Based on that misinformation, the applicant filed his petition on December 2, 2003.

While the applicant's reliance on this misinformation was unfortunate, it nonetheless was not beyond the applicant's control to have timely filed a petition. The applicant does not deny receiving a copy of the ALJ's order and decision as well as a copy of the appeal rights that correctly indicate that the petition period is only 21 days. Despite this, the applicant failed to timely preserve his appeal rights. In general, the commission holds parties responsible for the errors of their agents, including attorneys. Therefore, the commission cannot conclude that it was beyond the applicant's control to have timely petitioned.

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).

The petition for review is dismissed.

Dated and mailed January 30, 2004
brandal . wpr : 135 : 1     ND § 9.2

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Robert P. Ochowicz

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