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

LEVIA M FRANKLIN, Employee

HARMONY LIVING CENTERS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01603550MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employer filed an appeal to the department's determination. A hearing was scheduled at Racine, Wisconsin on April 18, 2001, at 10:45 a.m. The employer appeared at the hearing and presented evidence. The employee failed to appear. The notice of hearing was mailed April 4, 2001, to the employee's correct address of record with the department. The employee received the notice. At 4:00 a.m. on the day of the hearing, her father became ill and was taken to a hospital. The employee failed to attend the hearing because she accompanied her father to the hospital and spent the day there.

The issue is whether the employee had good cause for failing to appear at the April 18th hearing. The standard for a failure to appear at hearing is "good cause." That is, a party who misses a hearing is entitled to further hearing if the party establishes good cause for its initial failure to appear. The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent individual might commit in similar circumstances.

The commission finds that the employee did have good cause for failing to appear at the original hearing. The employee acted as a reasonably prudent person would act in similar circumstances. It was certainly possible for the employee to attend the hearing but given the circumstances her failure to do so constituted no more than excusable neglect. The employee was understandably preoccupied with the health of her father.

The commission therefore finds that the employee/respondent failed to appear at a hearing held on April 18, 2001, and that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is reversed. The appeal tribunal decision issued on April 19, 2001, is set aside. Accordingly, this matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed August 29, 2001
frankle . urr : 132 : 8   PC 712.5

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge noted that the employee did not take her father to the hospital and did not need to miss the hearing. However, the question is not one of necessity but of good cause. The ALJ found as a fact that the employee accompanied her father to the hospital and spent the day there. The commission disagrees with the administrative law judge's conclusion that these circumstances did not constitute good cause for missing the originally scheduled hearing.

NOTE: Although the employer appeared at the original hearing and provided testimony, testimony presented at that hearing will not be considered when issuing a new decision.



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uploaded 2001/09/04