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

KATHY L RYLSKI, Employee

TEL MARK SALES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01403154AP

O R D E R

Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the December 10, 2001 appeal tribunal dismissal decision in this matter and remands it to the Department of Workforce Development for hearing and decision on the issue of the employee's failure to have appeared at a scheduled December 10, 2001 hearing in her case. It appears that the employee passed away on December 11. There are no factual circumstances in the record, however, such that the commission can conclude without hearing that the health of the employee gave her good cause for having missed the December 10, 2001 hearing. The commission can easily conclude, though, that the death of the employee excuses the late petition for review filed by the employee's daughter on her behalf. For the remainder of the proceedings connected with the employee's claim, her daughter Autumn Shaw will be acting as her representative.

The proceedings now ordered are necessary on account of Wis. Stat. § 108.13(3), which concerns unemployment benefits due to a claimant who dies during the pendency of an unemployment insurance claim. This order also is consistent with department policy, which requires that all benefit eligibility issues be resolved for deceased claimants. See Department of Workforce Development Unemployment Insurance Fraud Manual, Chapter VIII.

If the result of the hearing the commission now orders is a finding that the employee's failure to have appeared at the scheduled December 10, 2001 hearing was with good cause, then hearing and decision on the issues originally noticed for the December 10 hearing will be scheduled. At that point, it will be the employer's evidentiary burden to establish that it discharged the employee for misconduct for unemployment insurance purposes. Likewise, it will be the employee's daughter's evidentiary burden to establish that the employee was available for and able to perform suitable work, within the meaning of Wis. Admin. Code § DWD 128.01(2).

Dated and mailed February 11, 2002
rylskka . upr : 105 : 6  PC 712.5  PC 731

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: Autumn Shaw

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