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

BENJAMIN W RADKE, Employee

TOTAL AVIATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02202706EC


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 issue in this case is whether the employee had good cause, within the meaning of Wis. Stat. § 108.09(4), for missing a scheduled November 13, 2002 hearing in this case. The commission concludes that he did, and so reverses the appeal tribunal decision.

Hearing in this matter originally was scheduled for September 13, 2002 in Hudson, Wisconsin. Pursuant to employer request, that hearing was postponed, and subsequently rescheduled for November 13, 2002 in New Richmond, Wisconsin. The employer appeared at the November 13 hearing but the employee did not, resulting in a November 20, 2002 decision on the merits adverse to the employee. The employee subsequently alleged good cause for his failure to have appeared at the scheduled hearing; the employee was allowed hearing on that issue, held on January 2, 2003.

The employee has been having difficulty with the receipt of his mail. Specifically, mail would come erratically and often late. The employee never received the October 29, 2002 notice for the November 13 hearing. Non-receipt of a hearing notice, though, generally constitutes good cause for a failure to appear at the hearing, and it does so in this case. The presumption of delivery pursuant to which the administrative law judge decided the case, is only a presumption, in this case overcome by the employee's evidence. The employee both testified that he did not receive the hearing notice and proffered a plausible reason for that failure. It cannot be said, finally, that the employee had simply abandoned his claim, given that he was fully aware of the particulars of the first scheduled hearing in the case (on September 13, 2002).

The commission therefore finds that the employee had good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140, for his failure to have appeared at the scheduled November 13, 2002 hearing.

DECISION

The January 3, 2003 appeal tribunal dismissal decision is reversed. The November 20, 2002 appeal tribunal decision on the merits is set aside. This matter is remanded to the Department of Workforce Development for new (de novo) hearing and decision on the merits.

Dated and mailed April 10, 2003
radkebe . urr : 105 : 8   PC 712.1

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge did not have in-person demeanor observations upon which to base her decision, as the employee appeared at hearing by telephone. In addition, the commission's reversal is better characterized as a reversal as a matter of law. Based upon the administrative law judge's reasoning, the administrative law judge made the presumption of receipt of mail sent through the postal system, absolute. This a factfinder may not do.


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uploaded 2003/04/18