ERD Case No. 9120613

An Administrative Law Judge issued an Order on April 3, 1992 which dismissed the complaint in this matter based on the failure of the Complainant to appear and proceed. The Complainant filed a timely petition for review.

Based on a review of the record in this matter, the Commission now makes the following:


That the complaint in this matter is dismissed with prejudice.

Dated and mailed June 5, 1992.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


The Complainant did not appear in person at the hearing, but her attorney did. The Administrative Law Judge evidently considered that dismissal of  the complaint was required by Wisconsin Administrative Code sec. Ind 88.16(5), which provides:

"FAILURE TO APPEAR. If the complainant fails to appear at a hearing, either in person or by a representative, the administrative law judge shall dismiss the complaint. If a respondent fails to appear at hearing, the hearing shall proceed as scheduled. If, within ten days after the date of the hearing, any party who fails to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing."

Thus, he recited at hearing that the Complainant had failed to "appear and proceed," and following the issuance of his order, he denied the Complainant's motion to reopen by citing the requirement in Ind 88.16(5) that good cause for failure to appear must be shown within ten days of the date of the hearing. (1)  However, Ind 88.16(5) was not applicable in this case. There is no requirement that a complainant always appear in person;  Ind 88.16(5) only requires dismissal if a complainant fails to appear either in person or by a representative. Complainant did appear at the hearing, by her attorney.

The problem was not that Complainant did not appear at hearing, but that she failed to put in evidence proving her case. Because of that failure, the dismissal of the complaint was appropriate.

The Complainant's Motion to Reopen and Alternative Petition for Commission Review asserts that she had good cause for her failure to appear at the hearing personally. Since (as noted above) Ind 88.16(5) is not applicable here, the question is what significance this assertion might have if true, to a situation in which a complaint is dismissed for failure of proof.

While a complainant is not required as a legal matter to be present at her hearing as long as there is an appearance by counsel, the complainant will often be required as a practical matter to be present since she will frequently be an important witness in her own case. If a complainant fails to appear personally at her hearing and her case therefore fails of proof, the situation is functionally equivalent to one in which the complainant appeared personally but some other important witness failed unexpectedly to appear and the case failed for that reason. In such cases, the Complainant (in the person of her attorney in the first case, or personally in the second) has been confronted with a surprise at hearing which impairs her ability to present her case.

The general rule in such a situation is that the party must request a continuance to allow time to respond to the surprise absence of the witness. This requirement reflects the view that it would be improper to grant rehearing to the proponent of an absent witness who had not asked for a continuance because this would permit the party to speculate on a favorable outcome in the first hearing. 58 Am. Jur.2d, New Trial, § 105. If a continuance is requested and denied, and if the case thereafter fails for lack of proof, the party can then move for rehearing. In deciding on such a motion the appellate body would look at the believability of the facts asserted as the reason for the absence of the witness, the question of whether such a reason is legal good cause for the absence, the question of whether the evidence which allegedly would have been offered would have been material and would have supported a different outcome, and any other factors appropriate to such an inquiry.

Although Complainant's counsel failed to move for a continuance when his client failed to appear, in the somewhat unusual circumstances here this will not preclude further consideration of Complainant's petition for commission review, which is in effect a request for an opportunity for further hearing. While Complainant's counsel should have moved for a continuance, the ALJ's handling of the situation created the impression that it would have been futile to do so. Without asking counsel for Complainant if he proposed to proceed, and with no motion therefor having been made, the ALJ on his own motion ruled that the complaint would be dismissed. Complainant's counsel was certainly not failing to seek a continuance in order to speculate on a favorable outcome at the hearing.

Turning to the facts asserted as the reason for Complainant's failure to appear, the commission finds them not to be believable, for a number of reasons.

First, there is something odd about the evidence that counsel for the Complainant did not telephone his client at home on the morning of hearing when he realized she had not appeared. The implication of Complainant's affidavit is that there was also no such attempted telephone call even after the order of Dismissal, or at any time prior to 10:30 a.m., when the Complainant telephoned her attorney. Complainant's counsel does claim to have telephoned his office at 9:10 a.m. on the morning of hearing to see if his client had gone there, but according to his version of the events of that morning he did not attempt to telephone her home when he discovered she had not gone to the office. The Complainant's affidavit indicates that she has a telephone (this can be inferred from her statement that she called her attorney immediately upon awakening at 10:30 a.m.). If using the telephone was for some reason not possible, Complainant's counsel could certainly have gone to Complainant's home, but he appears not to have done this either. Rather, based on Complainant's affidavit, it appears that he returned to his office and made no further attempts to contact the Complainant. As noted, this seems quite odd, in view of the fact that he had expected her to appear at the hearing, she had not appeared and had not gone to his office, her failure to appear had caused the Administrative Law Judge to dismiss her complaint, and any possibility of obtaining a reopening of the matter rested on counsel's ability to provide to the Administrative Law Judge some sort of explanation for Complainant's nonappearance. The Commission cannot believe that counsel for the Complainant was as indifferent to her nonappearance as is suggested by his failure to make any attempt to contact her on the morning of hearing even after the dismissal, and his failure to submit an explanation of the nonappearance to the Administrative Law Judge until approximately 20 days had passed.  The Commission instead believes that there may have been some problems in clarifying the nature of the reason for the nonappearance, which have not yet been explained to it.

The other aspect of the Complainant's explanation for her nonappearance that does not ring true to the Commission relates to her claim of having overslept because of the ingestion of two prescription medications. According to Complainant's affidavit, she is being treated for back pain and some other conditions, including migraine headaches, she is prescribed both Darvocet and Amitriptyline for these conditions, and she takes the Darvocet every night, "and the Amitryptiline (sic) as needed for migraine headaches." The clear implication of this is that the Amitriptyline is an analgesic or is otherwise a part of a treatment for her migraine headaches, and that she takes that medication on an "as needed" basis. However, the pages of the "Hospital Formulary" which Complainant's attorney filed with the Motion to Reopen show that Amitriptyline is an anti-depressant (not a central nervous system depressant as Complainant's attorney asserts in his accompanying letter) which is used in treatment of depressive affective (mood) disorders, principally major depression, and sometimes bipolar disorder. It is noted further in the "Hospital Formulary" that while tricyclic anti-depressants (the group of which Amitriptyline is a member) have been "tested" for use in migraine prophylaxis, in most cases the potential toxicity of the drugs outweighs any possible benefits received by their use, and migraine prophylaxis is not a use currently included in labeling of tricyclic anti-depressants by the U.S. Food and Drug Administration. The article also makes it clear that the dosages of tricyclic anti-depressants are critical and must be carefully individualized, suggesting that it would be extremely unlikely that anyone would be prescribed such drugs with the instruction that they could medicate themselves with them on an "as needed" basis. Thus, the Commission does not find it credible, that Complainant had been prescribed Amitriptyline on an "as needed" basis for migraines and that she had taken some for a migraine headache the evening before the hearing. Again, there is reason to believe that much has been omitted from the explanation provided.

The Commission is left with significant doubts about the accuracy of the explanation which has been provided for Complainant's nonappearance at the hearing. It does not believe the explanation provided in her affidavit. For this reason it concludes that Complainant has failed to credibly establish any entitlement to rehearing, and it therefore affirms the substance of the ALJ's order, which was to dismiss the complaint.

110 / T

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(1)( Back ) The ALJ's May 1, 1992 "Decision and Order on Motion to Reopen" was of no practical or legal significance, since it was issued more than 21 days after the ALJ issued his April 3, 1992 Order of Dismissal.  An ALJ has no authority to act in a case when the 21 day period within which the order may be appealed has expired. Foster v. Crest Building Maintenance (LIRC, January 30, 1984).  The fact that a motion to reconsider has been filed within that 21 day period is irrelevant; it must be acted on within that period.


uploaded 2002/12/09