794 Procedures for review by LIRC; scope of review

The commission dismissed a petition that was filed directly with the commission rather than with the department, as required by the commission’s rules. The commission has no authority to accept as timely a petition that has been filed at the wrong address. Burks v. Perlick Corp. (LIRC, 07/29/22).

The statute requiring that petitions must be filed within 21 days from the date the decision is issued refers to calendar days, not business days. Owens v. Apex Properties, LLC (LIRC, 12/29/21).

Although the Complainant’s petition was filed more than 21 days after the administrative law judge’s order was issued, the commission does not consider it untimely because the administrative law judge’s order was not accompanied by a notice of appeal rights. Osman v. JBS Green Bay, Inc. (LIRC, 03/30/20).

The petitioner did not establish that he faxed a timely petition for review to the Milwaukee Equal Rights Division office. His attempt to show a timely fax transmission failed because a transmission sheet, dated on the last day for filing, did not indicate a destination number for the fax, and did not show that it contained any statement of dissatisfaction with the administrative law judge’s findings or order, or asked for a review. Puddy v. General Machinery Corp. (LIRC, 03/30/20), appeal dismissed sub nom. Puddy v. LIRC (Sheboygan Co. Cir. Ct., 10/19/20), appeal dismissed (Ct. App., Dist. II, 01/05/2021).

The petition was dismissed where the Complainant asserted that she did not receive the administrative law judge’s decision on time but did not explain when she received it or provide any information that would allow the commission to conclude that, if received too late to file a timely appeal, this was due to exceptional delay. The commission indicated that it may reopen the matter under Wis. Stat. § 111.39(5)(c) if the Complainant provided such information within 28 days. Butler v. Kennedy Heights Cmty. Ctr. (LIRC, 04/30/19).

The statutory provision allowing the appeal deadline to be extended when an appeal is late due to an exceptional delay in the receipt of the decision does not apply to situations in which the Complainant herself is responsible for the delay. Cordero v. Milwaukee Bd. of Sch. Dir. (LIRC, 09/27/18).

Where the Notice of Appeal rights stated that the petition must be received within “21 days” the Complainant had no reason to presume that he had 21 “business days” to file his appeal. Banda v. Wis. Jobs Now (LIRC, 03/13/18).

There is no requirement that the petition for commission review contain any specific words or argument. “I appeal” is sufficient to trigger a review. Kennell v. County of Milwaukee (LIRC, 03/13/18).

The Equal Rights Division lacks jurisdiction to issue a decision addressing the timeliness of a petition for commission review. Although Wis. Admin. Code § DWD 218.21(2) requires that a petition for commission review be filed with the Equal Rights Division, it is the commission that decides whether the petition was timely filed and, if not, whether there is any basis to accept it. Piontek v. Curative Network (LIRC, 11/20/17).

The circuit court directed LIRC to determine whether the Equal Rights Division had accorded due process to the Respondent-employer by providing it with adequate notice of hearing. The Commission, having decided that additional evidence was required in order for it to make the due process determination, has authority to send the matter back to the Equal Rights Division for the taking of additional evidence, reserving jurisdiction to make the due process determination once the additional evidence has been taken by the Division and delivered to the Commission. Weil v. Supercuts (LIRC, 01/29/16).

Although the Commission has the authority to consider issues that were not the subject of a petition for review, it generally declines to exercise that authority. Where only the Complainant filed a petition (on the issue of remedy), and the Respondent did not file a petition on the merits, the Commission declined to take up the Respondent’s argument that it did not discriminate. Brown, et al. v. Chippewa Valley Tech. College (LIRC, 11/28/14).

Because the ERD tells parties they can use the ERD’s post office box address to mail petitions, a petition for review mailed to the post office box address of ERD is ‘received’ by the ERD when it is delivered to the ERD’s post office box, even if DWD mail room employees do not pick it up and deliver it to the offices of the ERD until the next day. The burden of proving when the item was delivered to ERD’s post office box is on the sending party. In this case, USPS Priority Express Mail tracking information established delivery to ERD’s post office in time to make the petition timely. Musse v. Luther Midelfort Northland (LIRC, 09/30/14), dismissed on procedural grounds sub nom. Musse v. LIRC (Barron Cty. Cir. Ct. 04/16/2015.)

The Complainant petitioned for LIRC review on the grounds that the ALJ erred by applying a mixed-motive analysis and limiting the Complainant’s remedy to a cease and desist order, based on the conclusion that the Respondent would have terminated the Complainant even in the absence of its discriminatory motive. The Respondent did not file a petition for review, but argued in its brief to LIRC that the ALJ incorrectly decided that the Respondent was even partially motivated by discriminatory animus. LIRC addressed the Respondent’s argument on liability even though the Respondent had not filed a petition for review, because the issue raised by the Complainant, which concerned the degree to which the Respondent was motivated by discriminatory animus, opened the door to the possibility of concluding that there was insufficient evidence to find even a partial discriminatory motivation. Mattocks v. Village of Balsam Lake (LIRC, 09/04/14).

A "newly discovered evidence"-based request for rehearing under Wis. Stat. § 227.49, and a motion to set aside, modify or change a decision under Wis. Stat. § 111.39(5)(c), both apply only to requests made after the final decision of the agency (LIRC) has been issued. They do not apply to asking LIRC to order further hearing in the course of its review. Once a petition for LIRC review is filed, an administrative law judge loses power to act in a case and cannot act on a motion for rehearing. However, LIRC's general review authority includes authority to order further hearing on grounds of newly discovered evidence - but in this case, evidence about an employment action occurring three years after the employment action was complained of, did not involve sufficient parallels to allow the conclusion that it would change the result in the case. Hafeman v. County of Sauk (LIRC, 04/04/14).

In general, Commission review is based only on the evidence previously submitted at hearing. Wis. Admin. Code § 1.04. The Commission, however, has the authority to set aside a decision and remand a case to the Department for further evidentiary proceedings (see Wis. Stat. § 111.39(5)(b)), and has considered doing so in two kinds of situations: (1) when the petitioner claims to have newly discovered evidence to present; and (2) when the petitioner claims that in the initial hearing he or she was denied procedural due process. Delgado v. Saint Gobain Performance Plastics Corp. (LIRC, 11/29/13).

Petitions for Commission review may not be filed by e-mail. Goulet v. Senior Citizens Employment & Training, Inc. (LIRC, 02/21/12).

The “Notice of Appeal Rights” that accompanied the decision of the Administrative Law Judge in this case made it clear that a petition for review had to be sent to the Equal Rights Division. The Complainant’s letter to an employee of the Division of Hearings & Appeals did not suffice as a petition for review by LIRC because such petitions must be filed with the Equal Rights Division. Goulet v. Senior Citizens Employment & Training, Inc. (LIRC, 02/21/12).

If the reason that a Complainant did not receive a copy of the decision of the Administrative Law Judge is that he had not kept the Equal Rights Division informed of his current address, this was not an “exceptional delay” which would warrant overlooking the lateness of the Complainant’s petition for LIRC review. Avant v. Milwaukee Area Tech. College (LIRC, 08/11/11).

As a general matter LIRC conducts a de novo review and acts as an original fact-finder and reviewer of an ALJ’s decision. However, where LIRC is asked to review an ALJ’s exercise of discretion in ruling on discovery matters the standard is not whether LIRC believes that a particular position has been substantially justified and whether attorneys’ fees and costs should have been awarded, but whether it finds the ALJ’s decision on the issue to have been an abuse of discretion. A discretionary decision will be sustained if the ALJ has examined the relevant facts, applied the proper standard of law using a rational process, and reached a reasonable conclusion. Kutschenreuter v. Roberts Trucking (LIRC, 04/21/11).

The petition for LIRC review in this case was not timely. A copy of the Administrative Law Judge’s decision was sent to the Complainant’s address, where it was inadvertently placed with mail for someone else in the Complainant’s household so that the Complainant did not discover it until after some time had passed. The Complainant was not prejudiced because of exceptional delay in the receipt of a copy of the decision within the meaning of sec. 111.39(5)(b), Stats. The decision had been “received” by the Complainant when it was delivered to her address by the U.S. Postal Service. The delay in her actually seeing the decision was caused by mishandling of received mail within her household. This did not constitute exceptional delay within the meaning of the statute. Vanderkin v. Ultra Mart Foods (LIRC, 02/10/11).

The test for determining whether a writing filed with the Equal Rights Division after the issuance of an Administrative Law Judge’s decision should be treated as a petition for Commission review has to do with its intent and purpose, specifically whether it expresses dissatisfaction with the ALJ’s findings and order and asks for review of or changes in the finding and order. In this case, it was implicit in the Respondent’s “motion to re-open proceedings” that the Respondent did not want the ALJ’s earlier decision to stand, and that it sought to have that decision set aside. A party’s characterization of the document filed with the Equal Rights Division after the issuance of an Administrative Law Judge’s decision does not control the question of whether it should be treated as a petition for Commission review. In this case, given its substance, it was appropriate to treat the Respondent’s “motion to re-open proceedings” as a petition for Commission review. Treige v. Servicemaster Clean (LIRC, 06/25/10).

The Respondent filed a “motion to re-open proceedings” several months after the Administrative Law Judge issued an order dismissing the complaint based upon the Respondent’s failure to appear at hearing. The Respondent asserted that its failure to appear at hearing was caused by the neglect of the attorney who was representing it at the time. The Wisconsin Fair Employment Act contains no provision which would allow the Labor and Industry Review Commission to accept late petitions, even when it appears that there is good cause for the lateness of the petition or the lateness of the petition resulted from factors beyond the petitioner’s control. Even if a party’s failure to file a timely petition is the fault of their attorney, this does not excuse the lateness of the appeal or provide the Commission with any authority to act on the petition. Treige v. Servicemaster Clean (LIRC, 06/25/10).

The only statutory exception under which a late petition for review may be considered applies when a party has been prejudiced because of exceptional delay in the receipt of a copy of the Administrative Law Judge’s decision. Under these circumstances, the Commission may extend the time in which to file a petition by another twenty-one days. Treige v. Servicemaster Clean (LIRC, 06/25/10).

The Labor and Industry Review Commission would not consider documents submitted by the Complainant for the first time on appeal from the decision of the Administrative Law Judge. The Commission is required to conduct its review based on the evidence which was submitted and received at the hearing. Powell v. Walgreen Drug Stores (LIRC, 04/09/10).

Writings filed with the Equal Rights Division in this case after the issuance of an Administrative Law Judge’s decision, although they concerned the case, should not have been considered to have been petitions for Commission review. The test for determining whether a writing filed with the Equal Rights Division after the issuance of an ALJ’s decision is a petition for review has to do with the its intent and purpose (specifically, whether it expresses dissatisfaction with the ALJ’s findings and order and asks for review of, or changes in, the finding and order). In this case, a motion filed by the Respondent “for determination of frivolity and for an award of fees and costs” was not a petition for review within the meaning of sec. 111.39(5), Stats. The motion did not indicate that the Respondent was dissatisfied with the findings and order of the ALJ. On the contrary, the Respondent was instead asking for the issuance of a new and separate order on another matter, which was a matter which had never been placed before the ALJ and which the ALJ had not addressed. Henderson v. DOC (LIRC, 03/19/09).

When a party fails to comply with a briefing schedule issued by the Commission, the Commission will generally overlook the failure where the lateness of the brief is minor, and where there is no reason to believe that there will be any prejudice to the other party from accepting the late brief. Johnson v. Roma Pizza II (LIRC, 02/25/09).

Where the notice of appeal rights issued by the Equal Rights Division misstated the appeal deadline, the time period for filing a petition for review never began to run. The petition filed by the Complainant, which was filed over one month after the ALJ’s amended decision was issued, was, therefore, deemed to have been timely filed. Abraham v. Roundy’s (LIRC, 06/20/08).

The Complainant faxed a petition for review to the Equal Rights Division after the close of business on the last day that a petition for review could be received. The petition for review was, thus, filed after the regular business hours of the Division and was considered filed on the following Monday, which was the next business day of the Division, in accordance with the Division’s administrative rules. The petition for review would have been timely under the Labor and Industry Review Commission’s administrative rule regarding the filing of petitions for review by facsimile. However, the Equal Rights Division’s own rules governing the procedure for filing such petitions were controlling. Thomas v. ITT Technical Inst. (LIRC, 05/29/08).

Although the filing of a petition for review by either party vests the Labor and Industry Review Commission with jurisdiction to review the entire decision, the Commission will generally not exercise jurisdiction over issues that are neither expressly nor implicitly raised in a petition for review. Nunn v. Dollar General (LIRC, 03/14/08).

The Labor and Industry Review Commission is limited to reviewing the evidence of record in reaching its decision. This consists of the evidence offered and received at the hearing before the Administrative Law Judge. Metzger v. UGD Automotive (LIRC, 02/28/08).

The Labor and Industry Review Commission may consider a late petition for review only if it is satisfied that the party has been prejudiced because of exceptional delay in the receipt of a copy of the Administrative Law Judge’s decision. Under these circumstances, the Commission may extend the time in which to file a petition by another 21 days. Sec. 111.39(5)(b), Stats. “Exceptional delay” refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. In this case, the Complainant did not receive his copy of the Administrative Law Judge’s decision because he had not kept the Division informed of his address. This does not constitute “exceptional delay” within the meaning of the statute. Accordingly, the petition for review was dismissed. Cotton v. Band Box (LIRC, 12/07/07).

On review, the Labor and Industry Review Commission will not consider documents which were not part of the evidentiary record made at hearing. LIRC is required to conduct its review based on the evidence submitted and received at the hearing. On appeal, the Complainant submitted various documents to the Commission which had not been introduced at the hearing. The Complainant asserted that they were not “new evidence” because these materials had been submitted to the EEOC and to the Equal Rights Division during their initial investigations. However, a party is required to present any evidence the party believes will support the party’s case at the hearing. Whitmore v. Levy Premium Food Serv. (LIRC, 10/19/07).

The review authority of the Labor and Industry Review Commission is limited to petitions which are received by the Equal Rights Division within twenty-one days after a copy of the Administrative Law Judge’s decision is mailed to the last-known address of the parties. The only statutory exception under which a late petition may be considered is when LIRC is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of the Administrative Law Judge’s decision. Under these circumstances, LIRC may extend the time in which to file a petition by another twenty-one days. Sec. 111.39(5)(b), Stats. However, the “exceptional delay” referenced in this statute refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. Exceptional delay and receipt of a copy of a decision caused by factors external to the Equal Rights Division is not a basis for extending the time to file a petition. Strommen v. Cross Plains Citgo Station (LIRC, 03/29/07).

The Labor and Industry Review Commission denied the Complainant’s request to forward to the Commission certain medical records which his doctor had failed to supply at the time of the hearing. By law, LIRC is required to conduct its review based only on the evidence submitted and received at the hearing. Schlesner v. Cooper Power Sys. (LIRC, 04/16/07).

The Labor and Industry Review Commission conducts a de novo review of the record upon appeal of an Administrative Law Judge’s decision. Accordingly, all matters at issue, not simply those which form the basis for the petition, are properly within the scope of its review. Gaulke v. Sch. Dist. of Stratford (LIRC, 12/08/06).

Neither the Wisconsin Fair Employment Act, the rules of the Equal Rights Division nor the rules of the Labor and Industry Review Commission require that a petition for review contain any special language. The Complainant’s correspondence to the Equal Rights Division in this case requesting reconsideration of an Administrative Law Judge’s decision should have been treated as a petition for review since the Equal Rights Division ALJs have no authority to reconsider their decisions once issued. If the Equal Rights Division was allowed to decide what constitutes a petition for Commission review, this would be problematic as the Division should not be dictating whether or not a party is entitled to Commission review of a decision by an Administrative Law Judge. Nabors v. Kelly IT Resources (LIRC, 10/06/06).

The Complainant’s petition for review was not timely filed where she slid it under the door of the Equal Rights Division’s office after it had closed for business at 4:30 p.m. on the last day of the appeal period. The jurisdiction of the Labor and Industry Review Commission is dependent upon there being a written petition filed with the Department within twenty-one days from the date that a copy of the Administrative Law Judge’s findings and order is mailed to the parties. A petition for review cannot be filed with the Equal Rights Division or physically received by the Division if its office is closed. Wilson v. Milwaukee Bd. of Sch. Dir. (LIRC, 07/14/06).

There is no provision in the Wisconsin Fair Employment Act which would allow the Labor and Industry Review Commission to accept late petitions for review, even if it appears that there is good cause for the untimeliness. Smith v. Schwans Food Co. (LIRC, 01/31/06).

The Labor and Industry Review Commission conducts a de novo review, acting as an original fact-finder and reviewer of the Administrative Law Judge’s decision. As a result, in the absence of some indication that an Administrative Law Judge’s conduct of the hearing improperly influenced the creation of the record in some way, remand for hearing before a different Administrative Law Judge would not be necessary or appropriate, even if some bias or appearance of bias was present in the case below. Carbage v. Genesis Behavior Serv. (LIRC, 04/15/05).

The role of the Labor and Industry Review Commission is to act as an original and ultimate fact finder. The Commission, therefore, conducts a de novo review. Spearman v. Burleigh Dental (LIRC, 09/30/04); aff’d sub nom. Spearman v. LIRC, Milwaukee Co. Cir. Ct., 04/05/05.

Petitions for review by the Labor and Industry Review Commission may not be filed by e-mail. Farvour v. County of Winnebago (LIRC, 11/13/03).

Although the complaint was filed more than 300 days after some of the acts of alleged discrimination, the timeliness issue was not raised by the Respondent, and the Labor and Industry Review Commission will not raise this issue sua sponte. Merta v. Johnson Controls (LIRC, 10/30/03); aff’d sub nom. Merta v. LIRC, Ct. App., Dist. III, unpublished decision, 02/08/05.

The Labor and Industry Review Commission is not limited to deciding whether an Administrative Law Judge abused his discretion. The Commission conducts a de novo review, acting as an original fact finder and reviewer of the Administrative Law Judge’s decision. Clemons v. Opportunities Industrialization Ctr. of Greater Milwaukee (LIRC, 02/14/03).

The Labor and Industry Review Commission reviews decisions by administrative law judges on awards of costs and attorneys’ fees in discovery motions by treating them as exercises of discretion subject to a test of reasonableness. Wells v. Roadway Express (LIRC, 05/13/02).

The Respondent’s motion to supplement the record was denied. The evidence cited as “newly discovered evidence” did not constitute newly discovered evidence. In order to constitute newly discovered evidence, a party must show that the evidence is sufficiently strong to reverse or modify the Administrative Law Judge’s decision and that the evidence could not have been previously discovered by due diligence. McKnight v. Silver Spring Health & Rehab. (LIRC, 02/05/02).

LIRC will decline a partjIRC. Barker v. Metz Baking Co. (LIRC, 12/15/00).

By law, LIRC is required to base its review solely upon the sworn testimony and documentary evidence submitted at the hearing. LIRC will neither consider nor address documents presented for the first time on appeal. Butler v. City of Madison (LIRC, 11/27/00).

On review, LIRC will not consider documents which were not part of the evidentiary record made at hearing. By law, LIRC is required to conduct its review based on the evidence submitted and received at the hearing. Sec. 111.39(5), Wis. Stats. Reinke v. Pick 'n Save Mega Food Ctrs. (LIRC, 01/28/00).

The Wisconsin Fair Employment Act, as well as the Commission’s rules, provide that the Commission’s review shall be based on the evidence submitted at the hearing. None of the documents submitted by the Complainant in support of his appeal were presented at the hearing and, therefore, LIRC will not consider them on appeal. Bounds v. United Parcel Serv. (LIRC, 07/08/99).

The Labor and Industry Review Commission has no authority to accept late petitions for review, even if it appears that there is good cause for the untimeliness or that the lateness of the petition resulted from factors beyond the petitioner’s control. Lindell v. St. Croix Valley Mem'l Hosp. (LIRC, 12/10/97).

The Labor and Industry Review Commission will not consider factual assertions which a party has presented for the first time in its petition for review. Kilgore v. Social Dev. Comm'n (LIRC, 02/14/97).

Review by the Labor and Industry Review Commission is limited to the testimony or other evidence that was presented at the hearing. The Commission cannot consider any documents which were not submitted at the hearing. Wisneski v. Kimberly-Clark Corp. (LIRC, 01/29/97).

Issues raised in a notice of appeal but not briefed or argued to LIRC on appeal will be deemed abandoned. Hentges v. Dep’t of Regulation & Licensing (LIRC, 01/12/96).

A petition for review was untimely where it was not received by the Equal Rights Division within 21 days of the date of the decision. It was not reasonable for the Complainant to believe that a letter mailed on the day before Thanksgiving would go from Los Angeles to Milwaukee by the day after Thanksgiving, which was the 21st day of the appeal period. Jackson v. Gateway Tech. College (LIRC, 01/12/95).

The Labor and Industry Review Commission will not consider issues which are raised for the first time in a reply brief. Ollenburg v. Milwaukee County Sheriff’s Dep’t (LIRC, 09/28/94).

In a case where the complaint alleged that the Complainants had been retaliated against by having their hours reduced after they filed a wage claim, the Labor and Industry Review Commission declined to address the issue whether the mere making of a threat to retaliate constitutes an independent violation of the Wisconsin Fair Employment Act. The complaint had not claimed that such a threat had been made, much less that it was an independent violation of the Act. The Initial Determination made no finding that any such threat had constituted an independent violation of the Act. The claim that the threat itself was an independent violation of the Act was first expressly raised only in the Complainants’ post-hearing brief. The Commission will not attempt to dispose of a case on a theory other than the one alleged, initially investigated, and noticed for hearing. Blaser v. Oconto County Sheriff’s Dep’t (LIRC, 09/20/94).

The Wisconsin Fair Employment Act contains no provision allowing LIRC to accept late petitions for review, even if it appears that there is good cause for the untimeliness. Brown v. City of Madison (LIRC, 02/24/94).

The time period specified by statute for filing an administrative review by LIRC never began to run where the Administrative Law Judge's decision was not accompanied by the correct notice of the rights of the parties to petition for administrative review. Heinritz v. Lawrence Univ. (LIRC, 09/30/93).

The Labor and Industry Review Commission has the power to extend the time for filing a petition for review only where it has been satisfied that a party has been prejudiced by an exceptional delay in receipt of a copy of a decision. Receiving the decision four days after the day it was mailed is not an exceptional delay. The Complainant's inability to contact his lawyer during the appeal period is not a factor to be considered in deciding to extend the appeal period. Lami v. Tomah Prod. (LIRC, 07/14/93).

Although the filing of a timely petition for review by any party gives the Labor and Industry Review Commission the authority to review any and all aspects of a decision below, the Commission has determined as a matter of policy that it will generally not exercise that authority to address issues when they are neither expressly nor implicitly raised by a petition for review. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).

The requirement of timely filing of a petition for LIRC review is jurisdictional. There is no exception which would allow LIRC to assume jurisdiction over an untimely petition for review on some theory that the lateness of the petition had been caused by a factor beyond the control of the petitioner or that the petitioner showed good cause for the failure to file the petition on a timely basis. Spaeth v. Prudential Preferred Properties (LIRC, 05/21/93).

While the filing of a petition for review by any party vests the Labor and Industry Review Commission with jurisdiction to review the entire decision, the Commission will generally not exercise that jurisdiction to address issues that are neither expressly nor implicitly raised by a petition for review. Neuman v. Hawk of Wis. (LIRC, 03/12/93).

Where the Complainant failed to file a timely appeal of an order of dismissal, the Labor and Industry Review Commission lacked jurisdiction to hear the Complainant's untimely appeal of the dismissal. Hill v. Units (LIRC, 09/30/92).

The Equal Rights Division incorrectly attached a Notice of Appeal Rights – Review by Court to an Administrative Law Judge's order dismissing a case for lack of jurisdiction. That notice apprised the parties that a petition for review must be filed within 30 days. The correct notice of appeal rights should have referenced a petition to LIRC, and noted that the time frame was 21 days and not 30 days. Thus, where the Complainant's petition to LIRC was received 26 days after the Administrative Law Judge's decision and order were mailed, LIRC accepted the petition as timely. Valeri v. Delco Electronics-Gen. Motors (LIRC, 07/17/92).

Review by the Labor and Industry Review Commission is not an appeal as such, but is a de novo determination. A petition for review by any party gives the Commission authority to review and decide all issues in the case. Forman v. Cardinal Stritch College (LIRC, 06/08/92).

The Complainant was not prejudiced because of exceptional delay in receipt of a copy of the Administrative Law Judge's decision where the cause of the delay in the receipt of the decision appeared to be the Complainant's failure to apprise the Department of his new address and there was no evidence that the Complainant's attorney had not received prompt notice of the ALJ's decision. Hadelli v. Essco, Inc. (LIRC, 04/09/92).

Sec. 111.39(5), Stats., which requires the filing of a petition for review within 21 days, contains no provision allowing the Commission to accept late petitions even when it appears that there is good cause for the lateness of the petition or the lateness of the petition resulted from factors beyond the petitioner's control. The only circumstances in which a late petition for review can be entertained are when the Commission is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of the findings and order. However, such exceptional delay must have been caused by circumstances beyond the party's control. Green v. Kimberly-Clark/Badger Globe MillM. (LIRC, 04/09/92).

Where a Complainant mailed a petition for LIRC review via "Priority Mail" on a Thursday, which was one day prior to the expiration of the deadline, and was told by a postal clerk that delivery would take place the next day, the petition was determined to have been untimely filed where the petition was not actually received until the following Monday, which was three days after the deadline. Filing is not complete upon mailing but requires actual physical receipt at an office of the Equal Rights Division. McGuinness v. Milwaukee County (LIRC, 04/09/92).

The Commission may exercise its plenary review authority to review an issue which has not been appealed by either party where the issues appealed by one party are closely related to an issue which has not been appealed. Valentin v. Clear Lake Ambulance Serv. (LIRC, 02/26/92).

LIRC lacks authority to entertain late petitions for review even when the lateness of the petition was attributable to circumstances beyond the petitioner’s control such that there was good cause for the untimeliness of the petition. In the relatively few cases in which a late petition has been accepted, it has been accepted on the basis of the conclusion that the petition was mailed within such time as to warrant a reasonable belief that it would be received by LIRC on time and that the petition could, therefore, be deemed timely. The language in sec. 111.39(6), Stats., referring to “exceptional delay” refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. Exceptional delay in the receipt of a copy of a decision caused by factors external to the Equal Rights Division (such as the hospitalization of the Complainant) are not within the intendment of the statute. Lacy v. Briggs & Stratton (LIRC, 07/09/91).

The late filing of a petition for review could not be overlooked where the Respondent’s corporate office in Texas, which made the determination to appeal the Administrative Law Judge’s decision, received that decision within a week to ten days after it was mailed to the Respondent's local office in Wisconsin. The Respondent still had 11 to 14 days within which to file a petition for LIRC review. Orwen-Richter v. Royal Int’l Optical(LIRC, 05/03/91).

The filing of a petition for review by any party vests LIRC with jurisdiction to review the entire decision. However, LIRC will generally not exercise that jurisdiction to address issues that are neither expressly nor implicitly raised by a petition for review. Dude v. Thompson (LIRC, 11/16/90).

LIRC’s review jurisdiction is not limited to specific issues mentioned in the petition for review. LIRC’s jurisdiction extends to all issues presented in the case. Krenz v. Lauer’s Food Mkt. (LIRC, 09/27/90).

The failure of a party’s attorney to file a timely petition for review does not constitute an exception to the statutory requirement that a petition for review be timely filed. Laskowski v. Beloit (LIRC, 03/30/89).

The Administrative Law Judge’s decision was issued on October 30, 1987, and on November 27, 1987 the Department received a petition for review from the Respondent in a soiled and crumpled envelope which had a postage meter date stamp of November 18, 1987, and a post office date stamp on the back of the envelope of November 25, 1987. The Respondent submitted an affidavit of a corporate officer who stated that he had personally deposited the Respondent’s petition for review in a mail box on November 18, 1987. The Respondent’s petition is deemed to have been timely filed since under normal circumstances the petition would have been received by November 20th, the last day in which to file a timely petition. Hasenohrl v. SFGP, Inc. (LIRC, 06/27/88).

Where the Respondent, appealing from a finding of discrimination, submitted affidavits of witnesses containing statements contrary to certain claims of fact made by the Complainant at hearing, the Commission held that sec. 227.49, Stats., did not allow for the submission of such evidentiary matter in a petition for review to the Commission since that section concerns only petitions for rehearing. The Commission held further that, in any event, the affidavits would not constitute new evidence since it could have been previously discovered by due diligence, and since submission of the statements with the petition for review could be nothing more than a guise to get around the Respondent’s failure to disclose the names of its witnesses at least ten days prior to hearing as required by rule. Hasenohrl v. SFGP, Inc. (LIRC, 06/27/88).

The “substantial evidence in the entire record” standard applies to court review of findings of fact of an administrative agency, but is not applicable to the agency's review of findings of a hearing examiner. An agency's review of an examiner's finding is not an appeal, but a certain deference to the findings of the original finder of fact is required, particularly where the principal issues involve credibility. Where more than one finding may be supported by substantial evidence, it is the role of the agency and not the court to decide which finding should be accepted. Schenck v. LIRC (Rock Co. Cir. Ct., 02/09/88).

Even assuming that the failure of the Complainant to timely file a petition for review was the fault of her attorney, this would not excuse the lateness of the appeal. Lackey v. Miller Brewing Co. (LIRC, 07/06/87).

Where the Complainant’s petition for review of the Administrative Law Judge’s decision was mailed on the last day for filing a timely petition but was not received by the department until two days later, the petition was untimely and was dismissed. Skoog v. Impact Seven (LIRC, 02/12/87).

LIRC had jurisdiction to review an examiner’s decision where the petition was received one day after the statutory period had elapsed at a time when the DILHR offices were temporarily relocated. Foth v. AMC (LIRC, 01/08/85).

A party who knew of the filing requirements to petition for review failed to file properly by delivering the petition to a DILHR Job Service Officer after the 20 day statutory limit, and where it was not received at the DILHR Legal Services Office until after 21 days had elapsed. Leece v. LIRC (DOT) (Dane Co. Cir. Ct., 02/10/84).

Failure to apprise an employer that LIRC interprets the 20 day period for filing an appeal as calling for actual receipt of the review petition does not violate the employer's due process rights; the date stamped on the employer's petition by LIRC is conclusive evidence of the date of receipt where the employer offered no documentary or other substantial evidence to refute its accuracy. UW Bd. of Regents v. LIRC (DeJong) (Dane Co. Cir. Ct., 1982).