LAVERN SPRINGER, Applicant

WAUSAU FURNITURE COMPANY INC, Employer

ECONOMY FIRE AND CASUALTY COMPANY, Insurer

On July 23, 1991, the Labor and Industry Review Commission dismissed the applicant's petition as being untimely and not for a reason beyond the applicant's control. Pursuant to the Decision and Order of the Circuit Court for Marathon County dated August 19, 1992, the commission's July 23, 1991, dismissal order was reversed and the matter remanded for further hearing. By Order dated December 3, 1992, LIRC ordered that additional hearing be held in this matter and such hearing was held on June 1, 1994. At that hearing, the applicant's attorney offered evidence as to the timeliness of applicant's appeal in the form of affidavits. At issue is whether applicant has established that his petition was timely, and if not, whether applicant has established that the untimely petition was for a reason beyond the applicant's control. Section 102.18 (3) of the statutes provides, in 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 findings and order 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. . ."

Section LIRC 1.02 of the Wisconsin Administrative Code provides in relevant part as follows:

"All petitions for commission review shall be received 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. All petitions or appeals shall be in writing."

Section LIRC 3.01, Wisconsin Administrative Code provides in relevant part as follows:

"A petition for commission review of the findings or order of a department of industry, labor and human relations' administrative law judge shall be received within 21 days from the date of mailing of the findings and order to the parties and during regular office hours by an employe of either the worker's compensation division or unemployment compensation division of the department."

The administrative law judge's Order having been dated and mailed on May 10, 1991, the last day on which a timely petition for review could have been filed was May 31, 1991. The petition for commission review was received on June 3, 1991.

The commission determines that applicant has not sustained his burden of establishing that its petition was filed timely nor that the untimely filing was beyond the applicant's control. As noted by the Circuit Court Order, the burden was on the applicant to establish that the petition arrived at LIRC's post office box on May 31, 1991. At the remand hearing, applicant did not offer evidence to establish when the petition arrived at the post office. The applicant has submitted basically the same evidence that he submitted prior to the Circuit Court Order i.e. the assertion by the applicant's attorney that he always mails the petitions the day before the deadline and he has always been timely in the past, along with documentation indicating that he has received a number of documents from the State the day after documents were sent to him. However, the issue is not whether applicant's attorney has been successful in the past in filing petitions, but whether the petition filed in this matter was received timely.

The applicant's attorney was given the opportunity to demonstrate that the commission received the petition timely and he failed to do so. Further, the fact that the applicant has been successful in the past in filing the petition the day before the petition deadline does not demonstrate the untimely petition filing was beyond the applicant's control.

The applicant has also submitted a copy of a prior commission order Wayne Thalacker v. River City Refuse and National Union Fire Insurance Company (LIRC November 4, 1992) to support his position. However, the petition in Thalacker was found timely filed based on an affidavit which demonstrated that it had been hand delivered to the Milwaukee Office on the last day of the petition period. Thus, Thalacker is distinguishable from the present case.

The applicant's attorney made a voluntary decision to wait until the day before the petition deadline. It is certainly within the attorney's control to mail the petition prior to the deadline to ensure timely arrival. Applicant's attorney failed to do so.

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 applicant's control, within the meaning of section 102.18 (3) of the Statutes, as amended by 1985 Wisconsin Act 83.

Accordingly, the petition for review is dismissed.

Dated and mailed July 11, 1994
ND § 9.2

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

cc:
Attorney James Kurth
Attorney Jeffrey J Strande

132 : CD8898

Appealed to Circuit Court.  Affirmed December 23, 1994.

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