STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

LAWANDA D G ANDERSON, Complainant

OIL & VINEGAR, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200503171, EEOC Case No. 26G200501896C


On February 8, 2007, the ERD issued a notice of hearing in the above-captioned matter, which set forth the date of June 5, 2007, as the date a hearing would be held on La Wanda Anderson's (Anderson) discrimination complaint.

Anderson failed to appear for the scheduled hearing, however, and therefore the ALJ issued an order on June 6, 2007, dismissing her complaint.

By letter dated June 10, and received by the ERD on June 11, Anderson filed a petition for commission review of the dismissal of her complaint. Anderson offered her sincere apology and stated that she regretted her failure to appear but that it was not a conscious decision by her to miss the hearing date. Anderson stated that she had been receiving medical treatment for an accident she was involved in weeks earlier, and she offered to provide medical documentation to support the circumstances for her failure to appear.

Subsequently, on June 19 Anderson contacted the commission and stated that she wanted to submit something from her doctor stating that she was in an accident and taking medication at the time of the hearing. She was advised that she could.

Thereafter, on July 9, the commission received a letter from Anderson, to which was attached a letter from Dr. Steven T. Kennedy from the Wignall-Kennedy Chiropractic Clinic. In her letter, Anderson stated that the reason for her failure to appear was the direct result of the Vicodin she was taking for the severe back pain that she was experiencing as a result of an accident that she was in a couple of weeks earlier. Dr. Kennedy stated in his letter that Anderson had been treated at the clinic since May 22, 2007, for injuries she received in a motor vehicle accident, that she was also being treated by Dr. Henry Rosler, medically, for the same injuries, and that the side effects of the Vicodin she has been taking throughout the course of treatment can alter one's normal behavior, and capabilities.

A complainant whose complaint has been dismissed for failure to appear at the hearing may have the hearing reopened provided the complainant has shown good cause in writing for the failure to appear. Wis. Admin. Code DWD § 218.18(4). Good cause is a reason, which, if established by competent evidence, would amount to circumstances beyond the individual's control or which otherwise prevented or made it unreasonable for the complainant to appear. Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).

The respondent argues that Anderson's failure to attend the hearing is inexcusable and that her petition should be denied. As reason, the respondent argues that Anderson could have easily contacted the ERD on the morning of the hearing if she could not attend but did not do so, that she did not contact the ERD following the hearing and that she was not heard from until the ALJ issued the order dismissing her complaint. Further, the respondent argues that Anderson's contention that she failed to appear at the hearing due to the side effects of a pain medication is simply not credible because presumably she would have been taking the pain medication for several weeks and because by the time of the hearing several weeks later she would likely have been used to any side effects from the medication. In addition, the respondent argues that Anderson's doctor's note does not provide a legitimate basis for reversing the dismissal of her complaint because the doctor simply states she was in an accident weeks prior to the hearing and was prescribed medication for back pain but says nothing about the status of her condition on June 5.

The respondent's first argument suggests that Anderson was capable of contacting the ERD on June 5, or at least by June 6 when the ALJ had issued the order dismissing her complaint. However, the assertions made by Anderson and the letter by Dr. Kennedy, indicate otherwise. Anderson states that she was taking Vicodin and that it was not a "conscious decision" by her to miss the hearing, which strongly suggests that the medication was affecting her mental capabilities at the time of the scheduled hearing. Furthermore, Dr. Kennedy states that the side effects of Vicodin "can alter ones normal behavior, and capabilities." By its second argument, the respondent suggests that Anderson had been taking the Vicodin for a lengthy period of time and therefore should have become used to any side effects of this medication. However, both Anderson and Dr. Kennedy's letters indicate that as of the date of the hearing, June 5, Anderson had only been on Vicodin since May 22, a period of two weeks. Further, as noted above, Anderson has indicated that the medication was still affecting her mental capabilities at the time of the scheduled hearing. Finally, the commission believes that the fact that Dr. Kennedy has stated that Vicodin can alter one's normal behavior and capabilities, combined with Anderson's assertion that this medication was affecting her mental capabilities as of the date of the scheduled hearing, provide sufficient written evidence regarding the status of her condition on June 5.

The commission thus concludes that Anderson has provided sufficient written evidence to show that she had good cause for her failure to appear for the scheduled hearing on June 5, 2007.

Accordingly, the Labor and Industry Review Commission therefore issues the following:

ORDER

The June 6, 2007 decision of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed July 27, 2007
anderla . rpr : 125 : 9

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc: Attorney Theresa E. Essig


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