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

GREGORY S GARDNER, Applicant

LEE BEVERAGE CO INC, Employer

WAUSAU BUSINESS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-037032

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 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 August 23, 2005, the last day on which a timely petition for review could have been filed was September 13, 2005. The petition for review was received September 14, 2005.

The applicant asserts that he mailed his petition for review on September 9, 2005. The applicant further states that previous mailings have reached their destination in two days. The commission finds that the petition should have been received by September 13, 2005, and its failure to reach the commission by that date was beyond the applicant's control.

The commission therefore finds that the petition for commission review was not timely and that the applicant has 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).

In the petition for review the applicant requests that the commission increase the PPD award to 15%. The applicant notes a number of limitations on his physical activities caused by the work injury. However, pursuant to Wis. Admin. Code § DWD 80.32(7) the award should have been close to the 3% rating offered by the IME. The ALJ exercised his discretion and increased the award by 5% based on the applicant's additional complaints. The commission finds that the 8% award is reasonable and declines to increase that award.

DECISION

The petition for review is accepted. The findings and order of the administrative law judge are affirmed.

Dated and mailed October 31, 2005
gardngr . wpr : 132 : 1  ND § 9.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

cc: Attorney James O. Moermond III

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