2022 WI 4

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP520

COMPLETE TITLE: Friendly Village Nursing and Rehab, LLC and 

Friendly Village Healthcare Center,

 Plaintiffs-Appellants-Petitioners,

 v.

State of Wisconsin Department of Workforce 

Development and State of Wisconsin Labor and 

Industry Review Commission,

 Defendants-Respondents,

 v.

Rhinelander Healthcare Operator 150, LLC,

 Defendant.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 395 Wis. 2d 701,954 N.W.2d 392

PDC No:2021 WI App 9 - Published

OPINION FILED: January 26, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 25, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Oneida 

JUDGE: Michael H. Bloom 

JUSTICES:

DALLET, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. 

ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, 

C.J., and REBECCA GRASSL BRADLEY, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were briefs 

filed by Alon Stein and Stein Law Offices, Des Plaines, Illinois. 

There was an oral argument Alon Stein.

For the defendants-respondents, there was a brief filed by 

Ryan X. Farrell and The Department of Workforce Development; with 
2

whom on the brief was Kim T. Castelaz and The Labor and Industry 

Review Commission. There was oral argument by Ryan X. Farrell.
2022 WI 4

NOTICE

This opinion is subject 

to further editing and 

modification. The final 

version will appear in 

the bound volume of the 

official reports. 

No. 2020AP520

(L.C. 

No.

2019CV121)

STATE OF WISCONSIN : IN SUPREME COURT

Friendly Village Nursing and Rehab, LLC and 

Friendly Village Healthcare Center,

 Plaintiffs-Appellants-Petitioners,

 v.

State of Wisconsin Department of Workforce 

Development and State of Wisconsin Labor and 

Industry Review Commission,

 Defendants-Respondents,

 v.

Rhinelander Healthcare Operator 150, LLC,

 Defendant.

FILED

JAN 26, 2022

Sheila T. Reiff

Clerk of Supreme 

Court

DALLET, J., delivered the majority opinion of the Court, in which 

ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. 

ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., 

and REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the court of appeals. Affirmed.
No. 2020AP520

2

¶1 REBECCA FRANK DALLET, J. After purchasing Friendly 

Village Nursing and Rehab, Eden Senior Care1 untimely filed its 

application with the Department of Workforce Development to 

succeed the unemployment insurance account of Friendly Village's 

previous owner. This was a potentially costly mistake, because 

successors generally pay lower rates for unemployment insurance 

than non-successors. See generally Wis. Stat. § 108.18 (2019–

20).2 Eden's mistake was not necessarily fatal if it was "a result 

of excusable neglect." See § 108.16(8)(b)4. The Labor and 

Industry Review Commission, however, concluded that the record was 

insufficient to establish that Eden's application was late because 

of excusable neglect. Eden challenges that conclusion and claims 

that the Commission also erred by failing to apply the "interests 

of justice" factors in its analysis. We disagree. The "interests 

of justice" factors are not a necessary component of the excusableneglect analysis under § 108.16(8)(b)4., and Eden has failed to 

demonstrate excusable neglect for filing its application late.

I

¶2 Eden Senior Care is an Illinois company that purchases 

and rehabilitates nursing homes. On September 1, 2017, Eden 

 

1 Eden Senior Care is the parent company of Friendly Village 

Nursing and Rehab, LLC. In addition to Friendly Village Nursing 

and Rehab being the name of one of Eden's subsidiaries, it is also 

the name of the nursing home at issue here. Therefore, to avoid 

confusion between Friendly Village the company and Friendly 

Village the place, we use "Eden" to refer to the company.

2 All subsequent statutory references are to the 2019–20 

version unless otherwise indicated.
No. 2020AP520

3

purchased its first two nursing homes in Wisconsin, including 

Friendly Village Nursing and Rehab.3 The acquisition triggered 

several statutory requirements, among them registration and 

reporting of a business transfer. Eden could comply with those 

two requirements by submitting two Department forms: the Employer 

Registration Report and the Report of Business Transfer.

¶3 The Employer Registration Report serves several 

purposes. One purpose is that it provides a means for a business 

new to Wisconsin to meet the requirement that it register with the 

Department of Workforce Development. See Wis. Admin. Code 

§ DWD 110.04 (May 2020).4 Another purpose is that it helps the 

Department determine whether the business is an "employer" as 

defined by Wis. Stat. § 108.02(13). If the business is an 

employer, it is required to contribute to the state's unemploymentinsurance fund. See Wis. Stat. §§ 108.16, 108.18. 

¶4 Additionally, the Employer Registration Report alerts 

the Department that the new business is taking over an already 

existing business, in which case the transferee (the new business) 

may be eligible to acquire (or succeed) the previous employer's 

unemployment-account "experience." See § 108.16(8). If the 

previous employer has a high amount of account experience, then 

the transferee will likely benefit from succeeding that experience 

as, generally, the more account experience a business has, the 

 

3 Eden also purchased Northpoint Nursing and Rehab; that 

purchase is not at issue here.

4 All subsequent references to the Wis. Admin. Code § DWD 

are to the May 2020 version.
No. 2020AP520

4

lower its contribution to the unemployment-insurance fund. See

§ 108.18. The Employer Registration Report, however, does not 

state those implications directly. The closest it gets is a 

question that asks whether the new business acquired its "activity 

from a previous employer," borrowing from the language of 

§ 108.16(8)(a). See § 108.16(8)(a) ("[A] business is deemed 

transferred if any asset or any activity of an employer . . . is 

transferred in whole or in part . . . ."). In any event, the 

Employer Registration Report is not part of the statutory 

requirements for succeeding a previous owner's unemploymentaccount experience; those requirements are laid out in 

§ 108.16(8)(b)4.5

¶5 The second form relevant to Eden's statutory obligations 

is the Report of Business Transfer. Any time one business is 

transferred to another, the Department must be notified within 30 

days of the transfer, even if both the transferee and transferor 

have previously operated in the state. See Wis. Stat. 

§ 108.16(8)(k); Wis. Admin. Code § DWD 115.03. Completing and 

returning the Report of Business Transfer to the Department 

satisfies this notice requirement. A transferee who wants to 

acquire the previous employer's unemployment-account experience 

must file a "written application . . . requesting that it be 

deemed a successor." See Wis. Stat. § 108.16(8)(b)4. The Report 

 

5 All businesses, new to Wisconsin or previously established, 

are subject to the same requirements for succeeding a prior owner's 

unemployment-account experience. The Employer Registration 

Report, however, applies only to businesses new to Wisconsin.
No. 2020AP520

5

of Business Transfer also satisfies this requirement if the 

transferee checks a box on the form indicating that "[t]his is 

[its] application to acquire the account experience of the former 

owner."6 The Report of Business Transfer is available online as 

part of the Department's "Handbook for Employers,"7 which includes 

detailed instructions for how to fill out the form, as well as how 

to contact the Department with any questions.

¶6 Although the Employer Registration Report and the Report 

of Business Transfer serve different purposes, there is one 

relevant connection between them. In the Employer Registration 

Report, when a new business answers "yes" to the question "Did you 

acquire this activity from a previous employer?," the Department 

typically contacts the business and alerts it to the Report of 

Business Transfer. There is no statutory requirement, however, 

that the Department do so. See generally Wis. Stat. § 108.16(8); 

Wis. Admin. Code § DWD ch. 115. Rather, the statutes place 

compliance with all registration and application requirements 

squarely on businesses. See Wis. Stat. § 108.16(8)(b)4., (k); 

Wis. Admin. Code § DWD 115.03.

 

6 Although reporting a transfer is required——both generally 

and to acquire the previous employer's unemployment-account 

experience——using the Report of Business Transfer is not. Under 

Wis. Stat. § 108.16(8)(k) and Wis. Admin. Code § DWD 115.03, 

parties are required only to "notify the [D]epartment in writing." 

As for applying to acquire a previous employer's unemploymentaccount experience, Wis. Stat. § 108.16(8)(b)4. similarly requires 

transferees to submit only a "written application."

7 https://dwd.wisconsin.gov/ui201/t6201.htm.
No. 2020AP520

6

¶7 Here, Eden directed its Senior Business Analyst——

a 22-year-old with bachelor's degrees in communications and 

biology——to complete the Employer Registration Report in early 

August 2017. In response to the question "Did you acquire this 

activity from a previous employer?" the analyst answered "no." 

That response meant that the Department did not contact Eden 

regarding the Report of Business Transfer since, as far as the 

Department knew, Eden was not involved in a business transfer.8 

¶8 Eden filed its Report of Business Transfer on 

March 13, 2018,9 and indicated that it was using that form as its 

application to succeed the previous employer's unemploymentaccount experience. The application was roughly six weeks late, 

as Eden's September 1, 2017 acquisition date set its application 

due date as January 31, 2018. Eden traces its untimely application 

to the Department's failure to contact it regarding the Report of 

Business Transfer. That failure, Eden says, was caused by its 

analyst's "misunderstanding" of the question on the Employer 

Registration Report regarding whether it had acquired an 

"activity" from a previous employer.

 

8 The dissent asserts that Eden notified the Department of 

the business transfer in August 2017 via the Employer Registration 

Report. But by answering "no" to whether it acquired a previous 

employer's activity, Eden notified the Department that there was 

no transfer.

9 Both Eden and Friendly Village's previous owner signed the

Report of Business Transfer, thereby notifying the Department of 

the transfer. Both were late in doing so, however, because the 

notice was due no later than October 1, 2017. See Wis. Stat. 

§ 108.16(8)(k) (requiring notice to the Department within 30 days 

of the transfer).
No. 2020AP520

7

¶9 According to Eden, it was not until February 2018 that 

it learned it even had the option to acquire the prior owner's 

unemployment-account experience. After filing its successorship 

application in mid-March, Eden emailed the Department, explaining 

that its application was late due to an "error in completing our 

initial DWD account application," adding that it was "new to the 

Wisconsin operations space and [was] not familiar with how the 

[unemployment-insurance] process worked." The Department found 

that Eden's explanation did not amount to excusable neglect and 

therefore it rejected the application.10

¶10 Eden appealed to an administrative law judge. After a 

hearing at which only the Department employee who handled Eden's 

application and Eden's corporate manager testified, the ALJ 

reversed the Department's determination. The ALJ concluded that 

Eden had moved quickly to remedy its mistake and that Eden had not 

acted in bad faith. The ALJ also noted that accepting Eden's 

untimely application "served the interests of justice."

¶11 The Department appealed that decision to the Commission, 

which reversed. The Commission concluded that the record contained 

insufficient evidence to warrant a finding of excusable neglect. 

Specifically, it noted that the analyst who filled out the Employer 

Registration Report did not testify, so there was "no competent 

 

10 The Department accepted Eden's untimely successorship 

application related to Northpoint Nursing and Rehab after 

determining that certain registration forms were mistakenly mailed 

to Eden's power of attorney's address rather than its corporate 

address. The record contains no evidence of a similar problem 

regarding Friendly Village Nursing and Rehab.
No. 2020AP520

8

evidence establishing the nature of his error." It explained that, 

because Eden's central business is acquiring and rehabilitating 

nursing homes, Eden's failing to be aware of the law regarding 

registering such business transfers was "less excusable than it 

otherwise might be," even accounting for the analyst's 

inexperience. The Commission also concluded that Eden's prompt 

remedy did "not eliminate the requirement that a dilatory party 

demonstrate excusable neglect for its initial failure to meet the 

statutory deadline."

¶12 Eden appealed to the circuit court,11 arguing that the 

Commission erred because it failed to consider whether the 

"interests-of-justice factors"12 supported a finding of excusable 

neglect. Eden asserted that in Casper v. American International 

Southern Insurance Co., 2011 WI 81, 336 Wis. 2d 267, 800 

N.W.2d 880, we held that analyzing those factors is a necessary 

part of every excusable-neglect analysis. The circuit court 

rejected that argument and affirmed the Commission's 

determination, as did the court of appeals. 

II

¶13 Our review is limited to the Commission's decision, not 

the circuit court's or the court of appeals'. Operton v. LIRC, 

2017 WI 46, ¶18, 375 Wis. 2d 1, 894 N.W.2d 426. We defer to the 

 

11 The Honorable Michael H. Bloom of the Oneida County Circuit 

Court presided.

12 See Connor v. Connor, 2001 WI 49, ¶41, 243 Wis. 2d 279, 627 

N.W.2d 182.
No. 2020AP520

9

Commission's findings of fact so long as there is "substantial and 

credible evidence" to support them, id., but we review its legal 

conclusions de novo, Wis. Bell, Inc. v. LIRC, 2018 WI 76, ¶29, 382 

Wis. 2d 624, 914 N.W.2d 1.

III

¶14 To qualify as a successor to an acquired business's 

"unemployment account experience," the transferee must meet two 

statutory requirements. First, it must establish that a business 

was, in fact, transferred. Under Wis. Stat. § 108.16(8)(a), a 

transfer occurs when a business's "asset or activity" is conveyed 

to another business "by any means, other than in the ordinary 

course of business." Second, the transferee must satisfy the 

Department that it meets all four successorship conditions in 

§ 108.16(8)(b): the transferee must continue the transferor's 

business with generally the same employees, the transfer must have 

included at least 25 percent of the transferor's total business, 

the transferee must be subject to certain statutory financing 

provisions, and it must file a timely successorship application. 

There is no dispute that Eden is a transferee or that it meets the 

first three successorship conditions. Our focus is therefore on 

only the timeliness of Eden's successorship application.

¶15 A timely successorship application is one that the 

Department receives no later than "the contribution payment due 

date for the first full quarter following the date of the 

transfer." § 108.16(8)(b)4. Up to 90 days after that deadline, 

however, the Department may accept a late application, but only if 
No. 2020AP520

10

"the transferee satisfies the [D]epartment that the application 

was late as a result of excusable neglect." Id.13 Here, Eden 

submitted its application late but within the 90-day post-deadline 

window. The question is whether its application was late due to 

excusable neglect.

¶16 The Commission concluded that it was not, and Eden 

challenges that conclusion on two grounds. It first argues that 

the Commission applied the wrong law by failing to include the 

"interests of justice factors" in its excusable-neglect analysis. 

Eden then argues that the Commission erred in concluding that, as 

a matter of law, the record evidence was insufficient to show 

excusable neglect. We address each argument in turn.

A

¶17 Eden argues that the Commission applied the incorrect 

standard for excusable neglect because the Commission did not 

consider the "interests-of-justice factors." Eden asserts that 

our holding in Casper makes those factors part of every excusableneglect analysis. But this reads too much into Casper and ignores 

key differences between the text of the statute at issue there 

(§ 801.15(2)(a)) and the one at issue here (§ 108.16(8)(b)4.).

¶18 In Casper, we considered what a party must show for a 

circuit court to grant a motion to extend certain filing deadlines 

 

13 The legislature added the excusable-neglect provision 

in 2013. See 2013 Wis. Act 36, § 99. Prior to that amendment, 

the Department was required to deny all late successorship 

applications, no matter why they were late. See Wis. Stat. 

§ 108.16(8)(b)4. (2011–12).
No. 2020AP520

11

under § 801.15(2)(a). 336 Wis. 2d 267, ¶¶34–49. That statute 

provides that a court may grant such an extension "only on motion 

for cause shown and upon just terms." § 801.15(2)(a) (emphasis 

added). When a party moves for an extension after the original 

deadline has already passed, the court may grant the extension 

only if it makes the additional finding that the party's "failure

to act [before the deadline] was the result of excusable neglect." 

Id. Therefore, § 801.15(2)(a), by its plain terms, permits a court 

to grant a motion for an extension that is made after the original 

filing deadline passes only if it makes two separate findings: (1) 

granting the extension is "just"; and (2) the party's neglect in 

failing to file earlier is excusable. See id.; Casper, 336 

Wis. 2d 267, ¶¶37–38. Nowhere in Casper did we hold that the 

interests of justice are part of the excusable-neglect analysis. 

Rather, we reiterated that they guide part one of the two-part 

analysis required by the explicit language of § 801.15(2)(a). 

Casper, 336 Wis. 2d 267, ¶¶35–38; Miller v. Hanover Ins. Co., 2010 

WI 75, ¶43, 326 Wis. 2d 640, 785 N.W.2d 493 (explaining that a 

court may grant a motion to enlarge time under § 801.15(2)(a) "if 

the circuit court makes a finding of excusable neglect 'and if the 

interests of justice would be served by the enlargement of time'") 

(quoting Estate of Otto v. Physicians Ins. Co. of Wis., Inc., 2008 

WI 78, ¶114, 311 Wis. 2d 84, 751 N.W.2d 805 (emphasis added)).

¶19 Our analysis of the interests of justice in Casper was 

rooted in the text of § 801.15(2)(a), which explicitly allows a 

court to grant relief on "just terms." Other statutes similarly 

pair "excusable neglect" with notions of justice or equity. For 
No. 2020AP520

12

example, § 806.07(1) allows a court to grant a party relief from 

judgment "upon such terms as are just" and for reasons including 

excusable neglect or a finding that applying the judgment is "no 

longer equitable," as well as "[a]ny other reason[] justifying 

relief." But § 108.16(8)(b)4. contains no similar language 

directing the Department to consider just terms, equity, or "other 

reasons" for relief. Rather, "excusable neglect" is the only 

justification for the Department's accepting a late successorship 

application. See § 108.16(8)(b)4. (limiting even this exception 

to applications submitted fewer than 90 days late).

¶20 Given these differences in the statutory text, we cannot 

read "excusable neglect" as encompassing other interests-ofjustice considerations. See Miller, 326 Wis. 2d 640, ¶¶43–44 

(declining to extend to another statute the excusable-neglect 

requirement in § 801.15(2)(a) because the other statute "does not 

by its plain language require" such a finding); Village of Elm 

Grove v. Brefka, 2013 WI 54, ¶¶35–40, 348 Wis. 2d 282, 832 

N.W.2d 121. The Commission therefore applied the correct legal 

standard for excusable neglect.14

B

¶21 Eden's other claim is that the Commission erred in 

concluding that the record does not demonstrate excusable neglect. 

We have defined "excusable neglect" as an error that "a reasonably 

 

14 Because the interests-of-justice factors are not part of 

the excusable-neglect analysis under Wis. Stat. § 108.16(8)(b)4., 

we deny as moot the Commission's motion to strike.
No. 2020AP520

13

prudent person" would have committed "under the same 

circumstances." E.g., Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 

468, 326 N.W.2d 727 (1982).15 The inquiry is context dependent and 

requires a showing of something more than ordinary neglect or 

carelessness. E.g., id.; Casper, 336 Wis. 2d 267, ¶37. A party 

seeking relief under an excusable-neglect provision must offer a 

"persuasive explanation" for its mistake by pointing to "specific 

incidents" that occurred at the time of the mistake. See Hedtcke, 

109 Wis. 2d at 473. In assessing a party's explanation, courts 

may consider the negligent actor's familiarity with the subject 

matter, as well as the actor's "age, education and experience." 

Hansher v. Kaishian, 79 Wis. 2d 374, 391–92, 255 N.W.2d 564 

(1977). Ultimately, "the analysis in each case is fact specific," 

with the inquiry turning on a party's reasons or justifications 

for its negligent conduct as reflected in the record. See Casper, 

336 Wis. 2d 267, ¶39.

¶22 In cases where we have held that a party's mistake was 

due to excusable neglect, the record contained some concrete, nonspeculative evidence for why the mistake occurred. For example, 

excusable neglect includes a foreign corporation untimely filing 

its answer to a complaint due to reasonable "confusion created by 

 

15 Black's Law Dictionary contains a definition of "excusable 

neglect" that largely mirrors ours. See Neglect-excusable 

neglect, Black's Law Dictionary (11th ed. 2019) ("A failure——which 

the law will excuse——to take some proper step at the proper 

time . . . not because of the party's own carelessness, 

inattention, or willful disregard . . . but because of some 

unexpected or unavoidable hindrance or accident . . . .").
No. 2020AP520

14

the interplay between the summons and the notice of service," each 

of which seemingly set a different date for when the answer was 

due. See Shirk v. Bowling, Inc., 2001 WI 36, ¶21, 242 Wis. 2d 153, 

624 N.W.2d 375. We have also excused a corporation's untimely 

answer when the record demonstrated that the company had developed 

certain procedures for handling lawsuits, had followed those 

procedures, and, "despite its best efforts," its claims specialist 

had never received the complaint. See Casper, 336 Wis. 2d 267, 

¶¶44–45.

¶23 But when the record is silent, or contains only 

speculation about the reasons for a party's mistake or its failure 

to take reasonably prudent precautions, there is no basis for the 

Commission or the court to excuse the party's neglect. For 

instance, we declined to excuse a defendant's untimely filing of 

its answer when it claimed it had misunderstood the terms of a 

"courtesy extension agreement," but the record contained "no 

notes, confirmation letters, or other documentation" reflecting 

the alleged misunderstanding. See Connor v. Connor, 2001 WI 49, 

¶22, 243 Wis. 2d 279, 627 N.W.2d 182. We have also held that when 

a party attempts to justify its neglect by pointing to other 

typical work circumstances, such as the "press of other legal 

business" or "summer vacations," those reasons are insufficient, 

absent some additional "extraordinary explanation." See, e.g., 

Giese v. Giese, 43 Wis. 2d 456, 461–62, 168 N.W.2d 832 (1969); 

Cruis Along Boats, Inc. v. Standard Steel Prods. Mfg. Co., 22 

Wis. 2d 403, 409, 126 N.W.2d 85 (1964). And when a defendant 

missed a 20-day deadline to file its answer but offered no 
No. 2020AP520

15

explanation for why it took 19 days to send the complaint from its 

office in Waukesha to its claims manager in California, the court 

of appeals declined to excuse the late filing because, "in the era 

of overnight express mail" and fax machines, a reasonably prudent 

person in the party's shoes would have ensured the complaint made 

it to California sooner. See Gerth v. Am. Star Ins. Co., 166 

Wis. 2d 1000, 1008, 480 N.W.2d 836 (Ct. App. 1992); see also

Dugenske v. Dugenske, 80 Wis. 2d 64, 70, 257 N.W.2d 865 (1977) 

(declining to reverse the circuit court's finding of no excusable 

neglect because the record "shed[] little light" on whether a 

reasonably prudent person would have acted as the negligent party 

did).

¶24 Here, Eden traces its untimely application to an 

employee mistakenly answering "no" to the question on the Employer 

Registration Report asking if Eden had "acquired an activity from 

a previous employer." According to Eden, its employee 

misunderstood the question——due to his young age, inexperience, 

and lack of legal training——and therefore answered it incorrectly. 

Because of that mistake, the Department did not contact Eden 

regarding the Report of Business Transfer. And because the 

Department did not alert it to that form, Eden did not return the 

form as its successorship application prior to the application 

deadline. There are two problems with Eden's argument.

¶25 First, the record contains only speculation about why 

Eden incorrectly answered the question of whether it acquired an 

activity from a previous employer. Eden's owner——who was not the 

person who filled out the Employer Registration Report——testified 
No. 2020AP520

16

that there "might have been [a] misunderstanding or mistake on one 

of the questions" (emphasis added). The record, however, contains 

no evidence that the employee who completed the form in fact 

misunderstood the question. That employee did not testify, and 

the record contains no other evidence explaining why he answered 

the question "no." See Connor, 243 Wis. 2d 279, ¶22. 

¶26 In the absence of the employee's direct testimony, Eden 

points to the employee's relatively young age, inexperience, and 

lack of legal training as sufficiently justifying his mistake. To 

the extent that the employee's youth and inexperience contributed 

to his supposed confusion, a reasonably prudent person in the same 

situation——having no unemployment-insurance experience and not 

fully understanding the consequences of certain responses on the 

Employer Registration Report——would ask for help before submitting 

the document, or at least do additional research. See Hansher, 79 

Wis. 2d at 391–92; Maier Constr., Inc. v. Ryan, 81 

Wis. 2d 463, 474, 260 N.W.2d 700 (1978), overruled on other 

grounds by J.L. Phillips & Assocs., Inc. v. E & H Plastic Corp., 

217 Wis. 2d 348, 577 N.W.2d 13 (1998). There is no evidence that 

Eden's employee did so. Moreover, Eden has offered no explanation 

for why it directed someone so inexperienced and unfamiliar with 

Wisconsin's business-registration procedures to complete the 

Employer Registration Report. See Carmain v. Affiliated Cap. 

Corp., 2002 WI App 271, ¶27, 258 Wis. 2d 378, 654 N.W.2d 265.

¶27 Second, no matter how Eden completed the Employer 

Registration Report, it was still obligated to fulfill the 

successorship requirements under Wis. Stat. § 108.16(8)(b) and 
No. 2020AP520

17

Wis. Admin. Code § DWD 115.03. It is true that had Eden answered 

"yes" to the question of whether it acquired a previous employer's 

activity, the Department likely would have contacted Eden and 

notified Eden of its obligation to file the Report of Business 

Transfer. But the Department has no statutory duty to contact the 

employer. Eden, on the other hand, has a statutory obligation to 

"notify the [D]epartment in writing" of both its business 

acquisition, Wis. Stat. § 108.16(8)(b)(k); Wis. Admin. Code 

§ DWD 115.03, and that it was applying to succeed the previous 

employer's unemployment-account experience, Wis. Stat. 

§ 108.16(8)(b)4. Those obligations apply regardless of how an 

employer answers the questions in the Employer Registration Report 

or whether the Department alerts the employer to the Report of 

Business Transfer.16 Not to mention, anyone can find the Report 

of Business Transfer on the Department's public website.

 

16 For this same reason, the dissent's focus on the mechanism 

by which the Department contacts businesses who may be involved in 

a transfer is misplaced. The Department could eliminate that 

voluntary process and Eden's statutory obligations would remain. 

Moreover, the dissent's argument that Eden was disadvantaged 

because it didn't know how the Department's process worked is selfdefeating. If Eden had no idea that certain answers on the 

Employer Registration Report would have generated an alert from 

the Department, then it had no reason to wait for the Department 

to contact it before fulfilling its statutory requirements.

The dissent also confusingly suggests that because Eden and 

Friendly Village's previous owner failed to comply with their joint 

requirement to notify the Department of the business transfer under 

§ 108.16(8)(k), the court should excuse Eden's failure to comply 

with the separate successorship-application requirements under 

§ 108.16(8)(b)4. We fail to see why the previous owner's failure 

under para. (8)(k) is relevant or how Eden's two wrongs make a 

right.
No. 2020AP520

18

¶28 Eden makes no specific argument for why, independent of 

its mistake on the Employer Registration Report, it failed to 

timely file its successorship application. Rather, Eden urges 

generally that we should excuse its neglect because it was "not 

familiar with how the [unemployment-insurance] process worked" in 

Wisconsin. But mere ignorance of the law, particularly in the 

area of one's business expertise, is not excusable neglect. See

Putnam v. Time Warner Cable, 2002 WI 108, ¶13 n.4, 255 Wis. 2d 447, 

649 N.W.2d 626 ("[E]very person is presumed to know the law and 

cannot claim ignorance of the law as a defense."). Eden's owner 

testified that he was aware Wisconsin's laws may differ from 

Minnesota's (where Eden had exclusively conducted its previous 

business), but he "d[id]n't recall" speaking to anyone regarding 

what those differences might be. A reasonably prudent business in 

these circumstances would have at least attempted to familiarize 

itself with Wisconsin's requirements before submitting official 

documentation to the Department. See Edwards v. Kotlarek, 

No. 2009AP123, unpublished op., ¶¶8–10 (Wis. Ct. App. 

Aug. 31, 2010) (holding that a party's unfamiliarity with the law, 

without more, is not excusable neglect). Eden could have contacted 

the Department directly for guidance or taken advantage of the 

Department's publicly available resources regarding new employers' 

unemployment-insurance responsibilities. Indeed, Eden reached out 

to the Department after its deadline passed, but offers no reason 

for why it did not do so earlier.

¶29 In sum, focusing on the Employer Registration Report 

distracts from the real issue——that Eden failed to timely file a 
No. 2020AP520

19

successorship application under § 108.16(8)(b)4. As the 

Commission correctly concluded, nowhere does the record contain 

evidence of a reason for that failure that rises to the level of 

excusable neglect.

IV

¶30 We conclude that the Commission applied the correct 

legal standard. The interests-of-justice factors are not part of 

the excusable-neglect analysis under Wis. Stat. § 108.16(8)(b)4. 

We further conclude that there is no basis in the record on which 

to excuse Eden's neglect in filing its successorship application 

after the statutory deadline. The Department thus correctly 

rejected Eden's successorship application.

By the Court.—The court of appeals' decision is affirmed.
No. 2020AP520.pdr

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¶31 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The Labor 

Industry Review Commission (LIRC) denied Friendly Village Nursing 

and Rehab, LLC (Friendly Village) successor status for the 

Department of Workforce Development (DWD) unemployment account 

experience of the business Friendly Village purchased because LIRC 

concluded that Friendly Village's untimely request to become a 

successor was not excusable. Wis. Stat. § 108.16(8)(b)4. Late 

filings that occur within 90 days of the DWD deadline are accepted 

if the totality of circumstances relative to the late filing meet 

the legal standard of excusable neglect. Wis. Stat. 

§ 108.16(8)(b)4; Wis. Admin. Code § DWD 115.07(2)(a). 

¶32 In the case before us, the manner in which DWD programmed 

its response to answers to its online questions denied Friendly 

Village effective communication that would have facilitated

Friendly Village's timely filing as a successor business.1 Stated 

otherwise, DWD's programming was a reasonable factual cause that 

contributed to Friendly Village's late filing. In addition, 

Friendly Village's seller did not notify DWD of its sale as Wis. 

Stat. § 108.16(8)(k) required. And finally, Friendly Village 

promptly filed corrected information with DWD. Therefore, under 

the totality of circumstances, I conclude that Friendly Village 

proved excusable neglect. Because the majority opinion follows 

LIRC's erroneous lead and does not review the totality of 

circumstances as is required, I respectfully dissent.

 

1 Program: "to work out a sequence of operations to be 

performed by (a mechanism, such as a computer)." Merriam Webster. 

Merriam-Webster.com/dictionary/program (last visited Jan. 19, 

2022).
No. 2020AP520.pdr

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I. BACKGROUND

¶33 On September 1, 2017, Friendly Village purchased a 

business from Rhinelander Healthcare Operator 150, and Northpoint 

Nursing and Rehab, LLC (Northpoint) purchased a business from Simon 

Oshkosh Properties, LLC. Friendly Village and Northpoint are both 

operated by Eden Senior Care (Eden), whose nursing home 

rehabilitation business is new to Wisconsin. As employers new to 

Wisconsin, both were required to register with DWD. Wis. Stat. 

§ 108.16(8)(k). This can be accomplished with DWD's "Internet 

Employer Registration Report," also referred to herein as DWD's 

online report.2 

¶34 On August 9, 2017, in anticipation of closing on 

purchases of Friendly Village and Northpoint, an Eden employee 

completed the DWD online report for each facility. The report had 

numerous questions. The first question asked, "Did you acquire 

this activity from a previous employer?" That question was 

answered "No" for both Friendly Village and Northpoint. The second 

question on the report was, "Have you paid employees for work 

performed in Wisconsin?" That question was answered "No," as well, 

for both facilities. The third question asked, "Do you expect to 

pay wages for work performed in Wisconsin in the future?" Both 

facilities answered "Yes" to this online report question. 

"Activity" was not defined in the online report, nor was there a 

statutory reference to Wis. Stat. § 108.16(8) that might link 

"activity" to a business purchase. 

 

2 Transcript of Administrative Hearing Department of 

Workforce Development, Exhibit 5 (Oct. 3, 2018). 
No. 2020AP520.pdr

3

¶35 The Report of Business Transfer (ROBT) form differs from 

the online report and provides significant communication about 

options that a business new to Wisconsin should know.3 To explain 

further, the ROBT requires that each "Former Owner/Operator" and 

each "New Owner/Operator" sign a joint ROBT for each business 

transfer. Wisconsin Stat. § 108.16(8)(k) also provides that "both 

the transferor and the transferee shall notify the department in 

writing of the transfer, within 30 days after the date of 

transfer." In the matter before us, Friendly Village complied 

when it completed the online report, but the transferor to Friendly 

Village did not notify DWD of the transfer within 30 days.4 

¶36 ROBT provision 5, contains "Options for New 

Owner/Operator," which instructs, "You may have an option to 

acquire the Unemployment Insurance experience of the former owner. 

An application to acquire this experience must be filed by the 

appropriate date. See chart at right." The ROBT permits a new 

owner to choose, "This is my application to acquire the account 

experience of the former owner." The ROBT communicates that if 

the change of business ownership or operation occurs during the 

period of "July 1 to Sept. 30," the new owner should apply to 

transfer the account experience by January 31. 

 

3 The ROBT form references Wis. Stat. § 108.16(8), which

provides additional business-transfer information. 

4 It is possible, although the record is not clear, that the 

transferor to Northpoint did notify DWD of the transfer because 

DWD knew Northpoint was a new employer and tried to send Northpoint 

forms relative to becoming a successor to account experience. 

Transcript of Administrative Hearing Department of Workforce 

Development, Exhibit 6 (Oct. 3, 2018). 
No. 2020AP520.pdr

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¶37 And finally, ROBT provision 8 is labeled "Continuation 

of Business" and it asks, "Has the new owner/operator continued to 

operate the same business activity without interruption?" To 

which, the Eden employee answered, "Yes" for Friendly Village. 

Provision 8 also asks, "Has the new owner/operator continued to 

operate the same business activity in the same location?" Again, 

the query was answered, "Yes." The questions and answers provide 

the necessary factual foundation for Friendly Village and 

Northpoint to succeed to the prior owners/operators unemployment 

account experiences. 

¶38 DWD rejected Friendly Village's ROBT, but it accepted 

Northpoint's ROBT, which also was filed late but reviewed by a 

different DWD employee.5 Friendly Village asked for an 

administrative review, which DWD provided. 

¶39 Chelsea Church, the DWD employee who reviewed Friendly 

Village's request to conclude that its late filing was due to 

excusable neglect, testified at the administrative hearing. She 

explained how the DWD online report operated as part of DWD's 

 

5 Initially, DWD rejected Northpoint's request to become a 

successor for its seller's unemployment account experience. On 

February 27, 2018, Northpoint appealed stating, "I am writing to 

appeal the initial determination made that Northpoint Nursing and 

Rehab LLC . . . is not the successor to the Wisconsin Unemployment 

Reserve account of Simon Oshkosh Properties LLC." The Eden 

employee said that his requests for information had been sent to 

the former management company on 11/06/2017 and 12/06/2017, rather 

than Eden Senior Care. Daniel McHugh of DWD responded to 

Northpoint, saying that "I should be able to process this without 

processing the appeal. It was late, but this seems to be 

'excusable neglect' and I should be able to approve it." 

Transcript of Administrative Hearing Department of Workforce 

Development, Exhibit 6 (Oct. 3, 2018). 
No. 2020AP520.pdr

5

"system." She explained that if the first question of the report 

had been answered yes, "then after they submitted this registration 

online, they'll receive a notification from our system that they 

need to complete their Report of Business Transfer form."6 She 

also explained that with a "yes" answer to the first online report 

question, "our department receives notification that we need start 

a transfer investigation, and they would start contacting them for 

that."7 On cross-examination, she also explained that there was 

nothing in the online report that directed the person completing 

it to the ROBT.8 She explained, "It only does that if the employer 

answers yes to that question, the --– did you acquire this activity 

from a previously employer question, otherwise, it does not."9

¶40 Rostislav Pukshansky, an owner of Friendly Village, also 

testified. He said that Jesse Pukshansky completed the online 

report for Friendly Village. He explained that Jesse is 22 years 

old and had no legal education or experience with DWD. As part of 

his testimony, Mr. Pukshansky also presented a communication that 

concluded that Northpoint's late filing was accepted based on a 

determination that the lateness was due to excusable neglect. 

¶41 Mr. Pukshansky never received any communication from DWD 

or from the seller, Rhinelander Healthcare Operator, regarding 

successor status or an ROBT application. He was provided with a 

 

6 Transcript of Administrative Hearing, Department of 

Workforce Development, at 21 (Oct. 3, 2018). 

7 Id. 

8 Id. at 24.

9 Id.
No. 2020AP520.pdr

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ROBT form in early March of 2018 after he reached out to DWD with 

questions about what he had heard about Northpoint's experience. 

He was told he could still apply to become a successor to the 

seller's account experience and to write a letter, as Northpoint 

had, explaining why the ROBT filing was late. He testified that 

he called the contact for the seller that same day and asked him 

to complete the seller's part of the ROBT.10 The seller did so.11 

It was that joint ROBT that Friendly Village filed with DWD on 

March 13, 2018. 

¶42 Mr Pukshansky also testified about his call with 

Ms. Church. "I remember she confirmed that there hadn't been any 

forms sent by the unemployment office for the Rhinelander/Friendly 

Village sale. We both figured out maybe because of the way the 

registration was filled out by Jesse initially, there might have 

been misunderstanding or mistake on one of the questions."12 After 

their discussion, he submitted a letter explaining why the ROBT 

 

10 Id. at 36.

11 Id. at 38.

12 Id. at 40. Later, on redirect, Ms. Church confirmed that 

Northpoint's answer to the first report question had been, "no," 

just as Friendly Village had answered its first report question. 

She also explained that a second report had been submitted for 

Northpoint on March 8, 2018, and in that report, Northpoint 

answered the first question, "yes." Ms. Church explained that 

March 8th "was about the same time as [her] activity with, uh, 

Mr. [Pukshansky] was going on regarding Friendly Village." She 

further explained that March 8, 2018 was after DWD's March 6, 2018 

grant of successorship to Northpoint. Transcript of 

Administrative Hearing Department of Workforce Development, at 53-

54 (Oct. 3, 2018).
No. 2020AP520.pdr

7

was late, and he asked her "to grant the excusable neglect 

exception in a similar basis as the North Point facility."13

¶43 After a full evidentiary hearing, the Administrative Law 

Judge determined that Friendly Village's late filing was due to 

excusable neglect; and therefore, its ROBT should be accepted. 

LIRC reversed the Administrative Law Judge's decision, without 

taking any additional testimony and without conferring with the 

Administrative Law Judge.14 

¶44 LIRC concluded that because the Eden employee who 

completed the online report did not appear to testify, "[t]here

thus is no competent evidence establishing the nature of his error, 

such that a finder of fact could conclude that the error was 

excusable."15 The issue, however, is whether the totality of 

circumstances relative to the late filing fulfilled the legal 

standard for excusable neglect pursuant to Wis. Stat. 

§ 108.16(8)(b)4. This includes the factual background for the 

late filing and subsequent actions taken by Friendly Village in 

regard to becoming the successor of its seller's unemployment 

account experience. As I explain below, it is the undisputed facts 

applied to the statutory standard that drives the question of law 

that controls this case. LIRC did not apply the correct standard 

of review because it thought excusable neglect was a finding of 

 

13 Id. at 41. 

14 Rhinelander Healthcare Operator 150, LLC 

Employer/Transferor Friendly Village Nursing and Rehab, LLC, 

Employer/Transferee, No. S1800077MD, slip op. at 2 (April 24, 

2019). 

15 Id. at 3.
No. 2020AP520.pdr

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fact and that it could be shown only by testimony from Jesse 

Pukshansky that relayed what he was thinking when he completed 

DWD's online report. 

¶45 Friendly Village appealed LIRC's determination. The 

circuit court affirmed LIRC, as did the court of appeals. 

II. DISCUSSION

A. Standard of Review

¶46 The Administrative Law Judge concluded that excusable 

neglect had been shown for Friendly Village's late ROBT filing. 

LIRC concluded the opposite.16 Whether excusable neglect has been 

shown requires us to determine whether the uncontested facts 

fulfill the statutory standard set out in Wis. Stat. 

§ 108.16(8)(b)4. This determination presents a question of law, 

Brown v. LIRC, 2003 WI 142, ¶11, 267 Wis. 2d 31, 671 N.W.2d 279; 

Johns v. County of Oneida, 201 Wis. 2d 600, 605, 549 N.W.2d 269 

(Ct. App. 1996), which we review independently. Tetra Tech EC, 

Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21. 

B. Excusable Neglect

¶47 Excusable neglect is not an easy legal principle to 

apply. It appears in a number of different statutes to be used in 

a number of different contexts. For example, Wis. Stat. 

§ 801.15(2)(a), which employs excusable neglect, often is 

discussed in opinions involving default judgments when a filing 

deadline has been missed. See e.g., Hedtcke v. Sentry Ins. Co., 

109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982). 

 

16 We review LIRC's decision not that of the circuit court or 

the court of appeals. Operton v. LIRC, 2017 WI 46, ¶18, 375 

Wis. 2d 1, 894 N.W.2d 426. 
No. 2020AP520.pdr

9

¶48 In regard to LIRC's decision on a transferee's successor 

status when the transferee's application is received late, 

excusable neglect is driven by Wis. Stat. § 108.16(8), which 

provides in relevant part:

(b) If the business of any employer is 

transferred, the transferee is deemed a successor for 

purposes of this chapter if the department determines 

that all of the following conditions have been 

satisfied:

. . . .

4. The department has received a written 

application from the transferee requesting that it be 

deemed a successor. Unless the transferee satisfies the 

department that the application was late as a result of 

excusable neglect, the application must be received by 

the department on or before the contribution payment due 

date for the first full quarter following the date of 

the transfer. The department shall not accept a late 

application under this subdivision more than 90 days 

after its due date.[17]

§ 108.16(8)(b). All agree that Friendly Village met all the 

criteria to become a successor to Rhinelander Healthcare Operator 

150's unemployment account experience, except for its tardy filing 

of the ROBT. 

¶49 Whether the undisputed facts fulfill "excusable neglect" 

for the late filing of Friendly Village's ROBT pursuant to Wis. 

Stat. § 108.16(8)(b)4. is central to this controversy. The 

majority opinion does not cite a decision interpreting 

§ 108.16(8)(b)4., and I could find none. The majority opinion 

 

17 Wisconsin Admin. Code § DWD 115.07(2)(a) contains a similar 

directive: "The department shall accept a late application 

received no more than 90 days after its due date if the transferee 

satisfies the department that the application was late as a result 

of excusable neglect."
No. 2020AP520.pdr

10

simply concludes Friendly Village had an obligation to timely file 

a ROBT and it did not meet it.18 

¶50 I conclude that a plain reading of Wis. Stat. 

§ 108.16(8)(b)4. requires that a reasonable factual cause must 

contribute to filing the ROBT late in order to constitute excusable 

neglect. This conclusion is consistent with employing a reasonable 

factual cause as a contributing factor for excusable neglect in 

other contexts. 

¶51 For example, applying Wis. Stat. § 801.15(2)(a), we 

concluded in Hedtcke that "the first step is to determine if there 

are reasonable grounds for the noncompliance with the statutory 

time period (excusable neglect)." Id. We also reasoned that a 

court must "be aware of the effects of an order denying or granting 

relief." Id. at 469. That is, what effect would the court's 

decision have on both parties. 

¶52 Wisconsin courts have defined excusable neglect as 

"conduct that 'might have been the act of a reasonably prudent 

person under the same circumstances.'" Binsfeld v. Conrad, 2004 

WI App 77, ¶23, 272 Wis. 2d 341, 679 N.W.2d 851. In Binsfeld where 

a motion for default judgment was lodged against Conrad, Conrad 

responded that he should not be subject to a default judgment 

because confusion was caused, in part, by Binsfeld's counsel. 

Conrad relayed that when the insurance company's representative 

asked counsel for Binsfeld for the answer's due date, he said that 

he would get back to him but never did. Id., ¶27. In considering 

the totality of circumstances that bear on excusable neglect, the 

 

18 Majority op., ¶¶27, 28.
No. 2020AP520.pdr

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court concluded that "ineffective communication" had occurred 

thereby supporting the legal conclusion of excusable neglect. Id., 

¶30. 

¶53 In the matter before us, I consider the totality of 

circumstances that contributed to Friendly Village's late filing. 

First, when Friendly Village attempted to register as an employer 

with DWD by completing DWD's online report, the first question did 

not ask about the purchase of a business. Instead it asked, "Did 

you acquire this activity from a previous employer?" Because 

Friendly Village answered that question, "No," DWD's report was 

programmed not to communicate with Friendly Village about 

successor status, as it would have if the answer to that question 

had been "Yes."19 

¶54 If DWD had contacted Friendly Village as a new employer, 

effective communication would have facilitated Friendly Village's 

timely filing. Also, Friendly Village's seller did not report the 

sale of its business to DWD within 30 days of the September 1, 

2017 sale as Wis. Stat. § 108.16(8)(k) required. If it had done 

so, DWD would have known about Friendly Village as a new employer, 

as apparently DWD did with Northpoint. Therefore, ineffective 

communications from DWD due to DWD's programming of the online 

report and the seller, who did not comply with § 108.16(8)(k) were 

contributing causes of Friendly Village's late filing because both 

resulted in limiting DWD's communication of necessary information 

to Friendly Village. Id.

 

19 Transcript of Administrating Hearing, Department of 

Workforce Development, at 21 (Oct. 3, 2018).
No. 2020AP520.pdr

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¶55 Second, Friendly Village corrected its late filing as 

soon as it learned what it should do. Mr. Pukshansky explained 

that he learned about successor status in late February 2018 when 

he heard about Northport's experience.20 He testified that he 

called DWD and learned of the ROBT and that both Friendly Village 

and its seller had to sign it. He called his contact with the 

seller that same day, asked him to sign the ROBT, and sent him the 

form.21 When the seller returned the signed ROBT, Mr. Pukshansky 

promptly filed it with DWD.22 Prompt corrective action is 

supportive of concluding that excusable neglect has been shown. 

Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis. 2d 498, 512, 

285 N.W.2d 720 (1979) (directing that in "determining whether the 

'reasonably prudent person' standard has been met, the trial court 

should consider whether the person has acted promptly to remedy 

his situation"). 

¶56 The majority opinion quotes excerpts from Black's Law 

Dictionary that defines excusable neglect as, "A failure——which 

the law will excuse——to take some proper step at the proper 

time . . . not because of the party's own carelessness, 

inattention, or willful disregard . . . but because of some 

unexpected or unavoidable hindrance or accident."23 Although I do 

 

20 Transcript of Administrative Hearing, Department of 

Workforce Development, at 50 (Oct. 3, 2018).

21 Id. at 36.

22 Id. at 38. 

23 Majority op., ¶21 n.15; Black's Law Dictionary, 1133 (9th 

ed). 
No. 2020AP520.pdr

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not agree with the majority opinion's ultimate conclusion, I have 

no problem with Black's definition. 

¶57 In the matter before us, the majority opinion does not 

seem to have a clue about why Friendly Village was a victim of 

DWD's computer program that underlies its online report. This is 

surprising because as explained by Ms. Church in her testimony at 

the administrative hearing, the report controls whether 

communication about filing a ROBT will be sent from DWD's "system" 

to a new Wisconsin employer. It also controls whether DWD will 

receive notice so that it will begin contacting the new employer. 

¶58 Friendly Village had no knowledge of DWD's programming 

and how it impacted effective communication between DWD and 

Friendly Village, nor is it reasonable to expect that as a new 

employer it should have had such knowledge. Accordingly, the 

reason for Jesse Pukshansky's answering the first question "No" 

does not matter. Whatever his reason, communication from DWD to 

Friendly Village would be the same: no communication because of 

the program's response to a "No" answer.24 

¶59 The Administrative Law Judge who heard Ms. Church's 

testimony concluded that given an employee inexperienced with DWD 

completed the online report, excusable neglect for the late filing 

had been shown. LIRC reversed.25

 

24 I hope that DWD reads this dissent and revises its program 

for the online report so that sending ROBT filing information and 

departmental-successor contacts occur for all new employers who 

complete DWD's online report. 

25 LIRC decision at 3. 
No. 2020AP520.pdr

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¶60 Although LIRC's opinion shows it likely knew how the 

online report program functioned, its decision ignores how 

critical that knowledge was to effectively completing the online 

report. Its decision also seems to presume that the employee who 

completed Friendly Village's online report should have known what 

results would be generated by DWD's system if question one were 

answered "Yes." The record contains nothing to support such a 

presumption. 

¶61 DWD set up the online report through its Bureau of Tax 

and Accounting – Tax Unit. How the report is programmed and 

functions is beyond the control and knowledge of those who complete

the report for the first time. Ms. Church may not have understood 

the underlying programming, but she knew how the online program 

worked, as her testimony showed. 

¶62 There is no way that the Eden employee who was new to 

Wisconsin and completed DWD's online report would know, or should 

know, that a "No" answer to the first online report question would 

deny Friendly Village communications from DWD that would 

facilitate its registration as an employer with successor status. 

Rather, the failures of DWD to send necessary information and to 

begin its business transfer investigation resulted from the way in 

which DWD's online report is programmed. The resulting 

"ineffective communication" from DWD was a contributing cause of 

Friendly Village's late filing, just as "ineffective 

communication" contributed to the court of appeals' conclusion of 

excusable neglect in Binsfeld.
No. 2020AP520.pdr

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¶63 Accordingly, because the programming of DWD's online 

report set up the chain of events that resulted in Friendly 

Village's tardy filing of its ROBT, together with the seller's 

failing to register the business sale and Friendly Village's prompt 

efforts at correcting its tardy filing, I conclude that the 

statutory standard for excusable neglect has been met. Friendly 

Village was not careless. Rather, the online report created an 

unexpected hindrance to an employer who did not know that the 

report provided differing assistance to the employer as the result 

of differing answers to the first report question. 

III. CONCLUSION

¶64 In the case before us, the manner in which DWD programmed 

its response to answers to its online questions denied Friendly 

Village effective communication that would have facilitated 

Friendly Village's timely filing as a successor business. Stated 

otherwise, DWD's programming was a reasonable factual cause that 

contributed to Friendly Village's late filing. In addition, 

Friendly Village's seller did not notify DWD as Wis. Stat. 

§ 108.16(8)(k) required. And finally, Friendly Village promptly 

filed corrected information with DWD. Therefore, under the 

totality of circumstances, I conclude that Friendly Village proved 

excusable neglect. Because the majority opinion follows LIRC's 

erroneous lead and does not review the totality of circumstances 

as is required, I respectfully dissent.

¶65 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this 

dissent.
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