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

FRANK R MARSHALL, Employee

THE EYECARE PLACE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03403082GB


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 employee was the subject of an adverse initial determination, and timely filed a request for hearing thereon. By proper notice, hearing was scheduled for August 14, 2003; the employee failed to appear at the hearing, and the issue is whether his failure was with good cause pursuant to Wis. Stat. § 108.09(4)(d). The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee freely conceded that he timely received the notice for the August 14 hearing. When he was noting on his personal calendar the hearing, however, he inadvertently placed it in the box for the following day, August 15. The employee thus mismarked his calendar. By the time the employee realized his mistake, he had missed the August 14 hearing.

By operation of Wis. Stat. § 108.09(4), a party is entitled to rehearing, after missing the original hearing, only if the party establishes good cause for the earlier failure to appear. The courts have held that good cause for such a failure includes even "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Thus, the good cause standard itself allows for a certain degree of negligence on the part of the party who failed to appear.

This is not to say that every instance of mismarking a calendar will constitute good cause for a failure to appear. There still must be some rational explanation for the actual mismarking. In the present case, the employee transposed the hearing date from August 14 to August 15 and, given that the two days are adjacent on the calendar, such a failure is understandable. The same reasoning could apply to a mismarking of a Thursday, November 8 hearing as occurring on Thursday, November 15, for example. Again, the two dates are adjacent on the calendar and the failure essentially is the inadvertent marking of the wrong Thursday. These kinds of failures fall within the scope of the excusable neglect the courts have stated constitutes good cause for a failure to appear.

The commission therefore finds that the employee's failure to have appeared at the scheduled August 14, 2003 hearing in his case was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, the commission will review, and issue a separate decision on, the merits.

Dated and mailed February 26, 2004
marshfr . urr : 105 : 1  PC 712.2    - Hearing, Failure To Appear - mis-marked calendar - mismarked calendar

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, as a matter of law the commission concludes that the circumstances of the employee's mismarking of his calendar fall within the excusable neglect the courts hold constitutes good cause for a failure to appear.


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uploaded 2004/03/02