BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


DAVID B. KNIPFEL, Employee

BADGER CAB INCORPORATED, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93000871MD


On February 6, 1993, the Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that the claimant performed service for the employer as an employe and not an independent contractor. As a result, base period wages from the employer were included in the computation of potential benefit eligibility. The employer filed a timely appeal of the adverse appeal tribunal decision. On March 17, 1993, an administrative law judge issued a decision which affirmed the initial determination.

Based upon the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The initial determination in this matter found that the claimant performed services for the employer as an employe not as an independent contractor. That initial determination referenced Wisconsin statute section 108.02 (12)(a) & (b), Stats.

On March 3, 1993, a notice of hearing was mailed scheduling a hearing to be held on Monday, March 15, 1993. The hearing notice indicated that the hearing was scheduled to "present evidence on the following issues: Whether the employe's services were performed in covered employment. (leased taxicab employment) (See 108.02 (15), WIS. STATS.)"

At the hearing in this matter, at which both the employe and employer were represented by attorneys, the fact that the notice of hearing and the initial determination referenced different issues was brought to the attention of all participants. The administrative law judge asked the employer's representative to waive notice of the independent contractor issue. The employer's representative refused to waive notice. The administrative law judge took testimony regarding the contractor issue and, on March 17, 1993, affirmed the initial determination and found the claimant performed services for the employer as an employe. The employer filed a timely petition for commission review.

The issue to be addressed is whether the administrative law judge properly considered the independent contractor issue and issued a decision on that issue. The commission believes that the administrative law judge did not have authority to proceed with the independent contractor issue and therefore sets aside the appeal tribunal decision.

Section ILHR 140.06 Wis. Admin. Code provides:

"(2) The notice for hearing shall state the time and place of the hearing, the department's statutory authority
for convening the hearing and the issues to be heard . . .

(3) The administrative law judge may take testimony and render a decision on issues not listed on the notice of hearing if such party is so notified at the hearing and does not object. " (emphasis added).

In this case, the issue noticed for hearing was the taxicab exclusion issue, and not the independent contractor issue which was the subject of the initial determination. The administrative code specifically provides that the administrative law judge can take testimony and render decisions on issues not in the hearing notice only if each party does not object. In this case, the employer made a timely and proper objection.

The foregoing prohibition against taking testimony and rendering a Decision upon issues not noticed reflects due process formulations by Wisconsin's Courts: "When the rights of a person are affected by judicial or quasi-judicial decree, adequate due process requires that the notice must reasonably convey information about the proceedings so that the respondent can prepare a defense or make objections." Schramek v. Bohren, 145 Wis. 2d 695, 704 (Ct. App. 1988). The self-evident link between the content of notice and preparation for, and conduct of a hearing permeates the formulations by Wisconsin Courts of more extended definitions of due process in administrative proceedings:

"The three elements of fair play in an administrative proceeding are: '(1) the right to reasonably know the charges or claims preferred; (2) the right to meet such charges or claims by competent evidence and (3) the right to be heard by counsel upon the probative force of the evidence adduced by both sides and upon the law applicable thereto.' " Bituminous Casualty Co. v. ILHR Department, 97 Wis. 2d 730, 734 (Ct. App. 1979) (citations omitted.)

Obviously, the independent contractor issue and the taxicab exclusion issue are not the same issues. This is of course relevant to whether the employer had adequate notice of the issues to be heard so that the employer can prepare a defense at hearing. It is important to remember that the application of section 108.02 (15)(k) 18 presumes that the relationship of employer and employe exists (whether it does or not), and that therefore evidence to show whether or not the relationship does exist is irrelevant. The issue is whether despite such relationship, the employe's employment is excluded. As it relates to notice in this case, the listing of the issue as the exclusion issue leads the employer to believe that whether an employe and employer relationship exists will not be at issue and the employer need not present evidence on that issue, but on the exclusion issue. This of course involves different evidence and different legal arguments.

For the above reasons, the commission finds that the employer did not receive sufficient notice of issues to be addressed at the hearing and, timely objected to failure in notice.

ORDER

The decision of the appeal tribunal is set aside. This matter is remanded back to the hearing office for a new hearing and decision on the merits.

Dated and mailed December 2, 1993
132 : CD8871   PC 713

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The commission notes that in a companion case issued this same date the commission found the claimant's employment with the employer to be services excluded under sec. 108.02 (15) (k) 18, Stats., Knipfel v. Badger Cab Inc., Hearing No. 93002367MD. Therefore, notwithstanding the outcome of this case, the claimant cannot use wages earned for work with this employer for benefit purposes.

cc:
Attorney Simon M Karter
Jeffrey Isaac Myers


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