P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200901209, EEOC Case No. 26G200901073C

An administrative law judge (ALJ) for the Equal Rights division of the Department of Workforce Development issued a decision in the above-captioned matter on September 28, 2010, dismissing the complainant's complaint based on her failure to appear and present evidence in support of her case. The complainant filed a timely petition for commission review.

Based upon a review of the matter, and for the reasons stated in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission issues the following:


The ALJ's Order of Dismissal is set aside and this matter is remanded to the Division for further proceedings on the complainant's complaint.

Dated and mailed December 30, 2010
ellinje . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner


Complainant Jessica Ellingsworth's complaint of alleged disability discrimination was scheduled for a probable cause hearing before the ALJ on September 9, 2010. Ellingsworth did not appear for the hearing.

On September 28, 2010, the ALJ issued a decision dismissing Ellingsworth's complaint due to her failure to appear at the hearing to present evidence in support of her claim.

On October 18, 2010, the ERD received correspondence from Ellingsworth stating reasons for her failure to appear at the scheduled hearing and asking that her case be reopened. Ellingsworth asserted the following as reasons why she was not able to appear for the September 9, 2010 hearing:

At the time of this case I had incurred a Subdural Hematoma, Concussion & Cervical Strain on my head & brain. Due to this injury I was [vomiting] frequently, had EXTREME head pain due to bleeding in my brain & an enlarged brain pushing on my [skull], had Cervical Strain & was unable to move my head, had difficulty w/ memory & decreased concentration. I was placed on strong pain medication for this injury which also made it difficult for me to focus. Due to these conditions I was ill & did not feel I could give an accurate & true testimony in this case. ...

Attached to Ellingsworth's written correspondence was a one page discharge summary for an emergency examination and treatment that she received on September 7, 1010, at St. Vincent Hospital in Green Bay. The document provides information about her diagnoses of a Subdural Hematoma, Cervical Strain and Contusions. The document defines a Subdural Hematoma as a collection of blood between the layers of the covering of the brain and states: "When there is bleeding between the layers of the covering of the brain, and blood begins to collect in that space, it puts pressure on the brain." The document lists signs and symptoms that sometimes show up after a head injury. The signs and symptoms listed include decreased concentration, memory problems, vision changes, headaches, especially with stress or physical activity, and dizziness.

The ERD's rules regarding a failure to appear at the hearing, Wisconsin Administrative Code § DWD 218.18(4), provide as follows:

(4) FAILURE TO APPEAR AT HEARING. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If, within 10 days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

"Good cause" has been defined to mean either that the failure to appear was the result of excusable neglect (i.e., the degree of neglect a reasonable, prudent person might be expected to commit in similar circumstances), or a reason which, if established by competent evidence, would amount to circumstances beyond the individual's control or which would otherwise have prevented or made it unreasonable for the Complainant to appear. Schwarz v. Gateway Tech. College (LIRC, 04/23/10). Further, the failure to appear for the hearing must be explained with a degree of specificity adequate to allow a reasoned assessment by the decision-maker of whether it is probable that good cause could be established. Id. See also, Malone v. Froedtert Memorial Lutheran Hosp. (LIRC, 07/30/03).

The respondent argues that since the complainant did not attempt to submit evidence of good cause for her failure to appear within 10 days of the hearing as "required" by Wis. Admin. Code § DWD 218.18(4), the commission should affirm the dismissal of the complainant's complaint without consideration of the documentation that she has submitted to the commission. The respondent argues that to do otherwise would render the provisions of Wis. Admin. Code § DWD 218.18(4) meaningless.

Wisconsin Administrative Code § DWD 218.18(4) does not, however, require that no consideration be given to a party's assertions/documentation that was not submitted within 10 days of the hearing. What Wis. Admin. Code § DWD 218.18(4) states is that "If, within 10 days after the date of the hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing." (Emphasis added.) The apparent purpose of this provision is to simply allow a period of time in which the administrative law judge could consider and decide whether a party has shown good cause for the party's failure to appear while the administrative law judge still maintained jurisdiction of the matter. Once an administrative law judge's decision has been issued, a written objection to that decision filed by a party with the Equal Rights Division should generally be treated as a petition for commission review. Mason v. ASI Technologies (LIRC, 04/17/98).

It is true that it was not until almost three (3) weeks after the ALJ's dismissal order and over five (5) weeks from the September 9, 2010 hearing date before Ellingsworth submitted an explanation for her failure to appear at the hearing. However, this is not necessarily surprising given the signs and symptoms that Ellingsworth states she was experiencing as a result of her injury.

The respondent further argues that even assuming the complainant's documents should be considered by the commission, the dismissal of her complaint should be affirmed. The respondent argues that the complainant's self-report of her alleged condition in her hand written submission is insufficient to establish good cause; that in order to establish good cause the complainant must submit expert medical testimony and/or documentation that her condition prevented her from appearing at the hearing, citing Mason, supra.

The commission's decision in Mason does not stand for the proposition that a party "must submit expert medical testimony" to establish that the party's condition prevented the party from appearing at the hearing. In Mason, the complainant had simply asserted that he was "ill and unable to attend" the hearing without any independent confirmation of this fact. In the instant case, along with Ellingsworth's hand written statement, in which she provides specific details as to the reasons for her failure to appear at the hearing, Ellingsworth has submitted as documentation of her condition a discharge summary with her diagnoses for the emergency examination and treatment that she received at St. Vincent Hospital in Green Bay on September 7, 1010.

The respondent also argues that even if the complainant's September 7, 2010 discharge summary is admissible, which is not authenticated by its author and is hearsay, it does not establish that the complainant was unable to attend the hearing because the discharge summary is dated September 7, 2010 and the hearing at which she failed to appear was on September 9, 2010. The respondent's arguments fail. First, it should be noted that since what DWD 218.18(4) requires is that the party failing to appear to show good cause "in writing" for their failure to appear, this "writing" will undoubtedly be hearsay. Also, there is no reason to question whether or not the hospital discharge summary submitted by Ellingsworth in this matter is exactly what it is declared to be. Appearing in the top left hand corner of this document is the following:

St. Vincent Hospital - Emergency Department
835 S. Van Buren Street Green Bay, WI 54307-3508
(920) 433-0111
Patient: Jessica Ellingsworth, Date: 09/ 7/2010 Time: 22:05
Discharge Instructions

Second, information contained in the discharge summary regarding Ellingsworth's Subdural Hematoma diagnosis states that sometimes after a head injury that signs and symptoms that will show up as long as one year after the injury include decreased concentration, memory problems and headaches, the very same symptoms Ellingsworth states that she was suffering from two days after September 7, 2010.

Finally, the respondent objects to Ellingsworth's MRI of her brain and to a computer print out regarding Subdural Hematomas which was submitted with her brief to the commission. The respondent is correct in that the MRI is not authenticated by the entity that created it and that no one involved in this case is qualified to interpret it. The respondent characterizes Ellingsworth's computer print out regarding Hematomas as meaningless, absent expert medical testimony and/or documentation that she suffered one on the date of the hearing and that its effects prevented her from attending the hearing. However, Ellingsworth's discharge summary for the emergency examination and treatment that she received on September 7, 1010, her stated diagnoses therein and the symptoms which may appear as a result of her injury, together with Ellingsworth's statement about the symptoms she was experiencing which caused her to be unable to appear for the September 9, 2010 hearing, establishes good cause for her failure to appear for the hearing.


Attorney Brian A Price
Attorney Jennifer Starr - Humana, Inc.

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