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

KEITH A WILTZ, Employee

TRANSIT EXPRESS INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601357MW


Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission again remands this matter to the Department of Workforce Development for additional hearing before a department administrative law judge, acting on the commission's behalf. The issue in the case was the sufficiency of drug test reports the employer wished to introduce into evidence. While the reports the employer submitted to the department are sufficient, yet the employer failed to appear at the scheduled August 30, 2001 remand hearing in order to place the reports into the hearing record. Wisconsin statute § 108.09(4m) states that the contents of verified or certified reports by qualified experts presented by a party or the department constitute prima facie evidence as to the matter contained in the reports in any proceeding under Wis. Stat. § 108.09. Wisconsin Admin. Code § DWD 140.09(3)(b), which governs the post-hearing stage, states that persons not a party or representative at the hearing may inspect the exhibits submitted and marked as exhibits at the hearing, whether or not received by the administrative law judge. Reading these two provisions together suggests that a party wishing to place into evidence a verified or certified report under Wis. Stat. § 108.09(4m) must appear at the hearing and do so at that time. Simply mailing the potential exhibit to the hearing office, in expectation that the administrative law judge will sua sponte place the exhibit into the hearing record, is insufficient. In this case, however, the employer inquired with its written submission whether anything more was required, and it was not clarified in response that the employer would have to appear at the hearing to place the report into evidence. For this reason, and to allow the employee opportunity to offer rebuttal evidence, the matter is being remanded a second time.

Dated and mailed September 27, 2001
wiltzke . usd : 105 : 1   MC 652.4   PC 712.6  PC 714.06 PC 734 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


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