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

LAUREL J NEILS, Employee

FAMILY TREE RESIDENTIAL FACILITIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01403103AP


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

On September 26, 2001, a hearing notice was sent to both parties of record stating that a hearing was scheduled via telephone on October 15, 2001, at 1:30 p.m. On October 15, the administrative law judge made two attempts to contact the employee at the telephone number listed on the hearing notice. On both occasions the administrative law judge was connected to an answering machine. The last attempt to contact the employee was at 1:45 p.m. The employee's appeal was dismissed because she failed to participate in the hearing.

The issue to be decided is whether the employee had good cause for the failure to appear at the hearing scheduled for October 15, 2001.

Wis. Stat. § 108.09(4)(d) provides, in part, as follows:

1. If the appellant fails to appear at a hearing held under this section and due notice of the hearing was mailed to the appellant's last-know address, the appeal tribunal shall issue a decision dismissing the request for hearing unless subd. 2. applies.

2. If the appellant delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision under subd. 1. is mailed, the appeal tribunal may set aside the decision dismissing the appeal and the department may schedule a hearing concerning whether there was good cause for the appellant's nonappearance. The department may also provisionally schedule a hearing concerning any matter in the determination. If, after hearing testimony, the appeal tribunal finds that the appellant's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and reinstating the dismissal. If, after hearing testimony, the appeal tribunal finds that the appellant's explanation establishes good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under subd. (3)(b) after conducting a hearing concerning any matter in the determination.

Wis. Admin. Code. § DWD 140.11(3) provides as follows:

Telephone Hearings (3) If the appellant is scheduled to appear by telephone, the administrative law judge shall, within 15 minutes after the starting time for the hearing, attempt to place at least two calls to the appellant's telephone number of record or the telephone number furnished to the hearing office. One of the calls shall be attempted at or near the end of the 15 minute period unless the administrative law judge determines after reasonable efforts that the appellant cannot be reached at that number. If, within 15 minutes after the starting time for the hearing, neither the appellant nor the appellant's authorized representative can be reached at the telephone number of record or the telephone number furnished to the hearing office, then the administrative law judge may dismiss the appeal.

The employee contended that she had good cause for failing to participate in the hearing. She argued that she had recently moved. She stated that she was in her basement and had plugged an extension telephone into a socket that she believed was a telephone jack. She argued that the telephone in the basement did not ring and that she did not hear the upstairs telephone ring. After she received information from the hearing office that she had been called she checked the socket in the basement and found that it was a jack for a computer line and not a telephone.

However, the employee's actions were negligent in the extreme. She had been living in her house for about four months, but evidently had not tried the phone outlet in the basement. She was working in her basement at the time of the phone conference and plugged an extension telephone in the basement. She did not check to see whether she heard a dial tone or try receiving any calls on the phone prior to the hearing. She did not hear the upstairs phone ring. She did not contact the department when she did not receive a phone call at the time stated on the hearing notice. It was not clear from the evidence whether the employee plugged her extension into a computer line or an additional phone line that may have been for Internet use or a children's line, but was disconnected when the prior owners of the house moved. In either case, it is likely that simply checking for a dial tone when plugging in the phone would have informed the employee that the phone did not work. Assuming for the sake of argument that the employee did check for a dial tone, and heard one, she should have tried using the telephone prior to the hearing, to see if it had worked. This is not a situation where a phone that had been working suddenly failed to ring. Finally, the employee should have contacted the department when she did not receive a phone call at the time of the hearing. Given all the circumstances in this case, the commission simply cannot conclude that the employee had good cause for failing to appear at her hearing.

The commission further finds that the employee failed to appear at a hearing held on July 1, 1998, and did not have good cause for failing to appear within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for a hearing on the merits is dismissed. The initial determination remains in effect.

Dated and mailed February 26, 2002
neilsla . urr : 145 : 3  PC 712.4

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner



MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses her decision because it reached a different conclusion when applying the law to the facts found by the ALJ.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2002/03/04