Opinion
December 2, 1949 —
December 30, 1949.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Affirmed.
For the appellant Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondents there was a brief by Lane Harrington, attorneys, and Bendinger, Hayes Kluwin of counsel, all of Milwaukee, and oral argument by Mr. John A. Kluwin and Mr. Gerald J. Harrington.
This is an action to review an award of the Industrial Commission entered in turn by the commission upon review of an order by one of its examiners. From a judgment setting aside the award of the commission, the applicant Leo J. Rickwa and the Industrial Commission appeal.
Leo J. Rickwa filed an application for an award for injuries sustained while in the employ of plaintiff, Margolis Produce Company, Inc. On December 29, 1947, the examiner who heard the matter for the commission entered an order dismissing the application.
Notice of the entry of the examiner's findings of fact and dismissal were mailed to Mr. Rickwa at his last-known address. Above his signature upon the admission of service of this notice Mr. Rickwa wrote "We wish to file an appeal at once."
On January 29th, Mr. Nelson, director of workmen's compensation, wrote Mr. Rickwa that his request had reached the commission on January 27th, which was more than twenty days after the examiner's order of December 29th; that if there is an exceptional delay in receipt of the findings or order, the time for filing a petition for review may be extended another twenty days; that forms were being inclosed and that if he could establish satisfactorily that there had been an exceptional delay in the receipt of the findings "the commission will consider whether there should be extension of time granted."
On February 9th the commission received a communication from Rickwa on the back of its letter of January 29th, explaining that he had been absent from his home in Sioux City on a temporary job in Wisconsin and that during much of that time his mail had been kept at home by his son. On February 20th the commission entered an order vacating and setting aside the findings and order of the examiner and set the case for review by the commission.
Upon review the commission entered an award in favor of the applicant. This action challenges the commission's jurisdiction. The circuit court held that the commission was without jurisdiction.
Sub. (2) of sec. 102.18, Stats., provides:
"The industrial commission may authorize a commissioner or examiner to make findings and orders, and to review, set aside, modify or confirm compromises of claims for compensation under rules to be adopted by the commissioner. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the industrial commission as a commission to review the findings or order."
Sub. (3) of sec. 102.18, Stats., provides in part:
"If no petition is filed within twenty days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last-known address of the parties in interest, such findings or order shall be considered the findings or order of the industrial commission as a body, unless set aside, reversed or modified by such commissioner or examiner within such time. . . . Within ten days after the filing of such petition with the commission the commission shall either affirm, reverse, set aside or modify such findings or order in whole or in part, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order it may extend the time another twenty days for filing petition with the commission."
The question presented is whether the petition for review was filed in time to give the commission jurisdiction.
The commission concedes that the explanation of applicant, upon which the extension was based, was received on the forty-second day following the entry of the order of the examiner. It argues, however, that since the twentieth day following the entry fell on Sunday, January 18th, the applicant had until Monday, January 19th, to move for review without extension, and that since the commission had the right to extend the period an additional twenty days this period should be computed from January 19th, which additional period again expired on Sunday (February 8th), giving the applicant until Monday, February 9th, to perform.
It is admitted that if the application for review was not filed within the statutory time, the findings and order of the examiner become a nonreviewable decision. Wichman v. Industrial Comm. (1941), 237 Wis. 13, 296 N.W. 78; Wacker v. Industrial Comm. (1946), 248 Wis. 315, 21 N.W.2d 715.
The trial court held that the statute authorizing the commission to allow an additional twenty days requires the time to be computed from the date of the entry of the examiner's order, and that the forty days expired on Saturday, February 7th. The court therefore held that the commission was without authority to act upon the petition received February 9th.
In Wacker v. Industrial Comm. (1946), 248 Wis. 315, 320, 21 N.W.2d 715, the court said:
"The twenty-day limitation is of great importance, both to the employer and employee. A prompt hearing and an award, the finality of which shall not long be in question, have always been recognized as essential to a just and efficient scheme of compensation, and the act has always contained provisions calculated to secure this objective. It should require very clear language to warrant the conclusion that the legislature meant to extend the period during which an award lacks finality in the absence of appeal."
The first portion of sub. (3) of sec. 102.18, Stats., indicates that the original twenty days is to be computed from the day upon which the findings or order of the examiner were mailed to applicant. It is obvious that the extension authorized must be computed from the same date. The trial court was correct in so holding.
By the Court. — Judgment affirmed.