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

DERRICK A REED, Employee

KEIDING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607614MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On May 11, 2002, the department issued an initial determination favorable to the employee. The employer filed a timely hearing request and a hearing was held on July 15, 2002. Both parties appeared. At the end of the hearing the administrative law judge notified the parties that, due to time constraints, the hearing would be continued on a different date and that a new hearing notice would be sent out. Although the employee knew that he was going to move from his current residence at the home of his aunt into his own apartment in the near future, he did not provide the administrative law judge with a new mailing address.

On July 17, 2002, a second hearing notice was issued, notifying the parties that the continued hearing would be held on August 6, 2002. The employee did not appear at the continued hearing. Consequently, the only evidence presented at the hearing was that submitted by the employer. On August 13, 2002, the administrative law judge issued a decision reversing the initial determination and denying the employee benefits.

The issue to be resolved is whether the employee's failure to appear at the August 6, 2002, hearing was with good cause.

The employee explained that he missed the hearing because he did not receive the notice of hearing. The employee testified that, although he moved to a new apartment on July 17, 2002, just two days after the hearing, he did not give the administrative law judge his new mailing address because he was not yet sure when the move would take place. The employee stated that his aunt lives only four blocks away from his new apartment and that, even after he moved, he continued to check his mail at her address on a daily basis. He indicated that there had been some problems with theft of mail from the mailbox at his aunt's home, leading her to secure a post office box for herself, but that he continued to receive mail and to monitor his mail at that address. The employee also stated that he had filed a forwarding order with the United States Postal Service, and assumed that the hearing notice would be forwarded to him. He did not indicate the date on which the forwarding order was filed.

While it is preferred that a UI claimant keep the department apprised of his or most current mailing address during the pendency of a UI claim, and claimants are given a specific opportunity to change their addresses when they file their weekly claims, there is no requirement that a claimant provide the department with address changes, provided he or she remains contactable by the department by mail. Where the employee still had the ability to receive mail from the department at his aunt's address and was continuing to monitor his mail at that address, his failure to provide the department with his new mailing address should not have affected his receipt of the hearing notice. Further, the employee indicated that he filed a forwarding order with the Postal Service, a step reasonably undertaken to ensure that he would continue to receive his mail without interruption. See, Bertrand v. Cops Construction, Inc. (LIRC, Nov. 20, 2001). The forwarding order, combined with the employee's continued monitoring of his mail at his former address, constituted a sufficient effort to ensure receipt of the hearing notice. Where the employee made such an effort, but nonetheless did not receive the hearing notice, the commission is satisfied that he had good cause for failing to appear at the hearing.

The commission, therefore, finds that the employee failed to appear at the hearing held on August 6, 2002, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the matter is remanded for a new hearing and decision on the merits.

Dated and mailed January 22, 2003
reedde . urr : 164 : 1  PC 712.1 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding her impressions of witness credibility and demeanor. The administrative law judge stated that she did not doubt the employee's credibility, but believed he had an obligation to provide the department with his new mailing address. For the reasons set forth in the body of the decision, the commission believes that the employee took sufficient steps to ensure that he would receive the hearing notice and that he had good cause for failing to appear.

cc: Attorney Gary M. Williams


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uploaded 2003/01/31