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

DONALD E WEBER, Employee

THE KELCH CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04600241MW


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 December 13, 2003, the department issued a determination denying benefits. The employee filed a timely request for hearing.

On January 15, 2004, the department mailed a notice of hearing to the employer and to the employee. This notice set the hearing for January 29 at 10:30 a.m. in room 365-A of the State Office Building at 819 North Sixth Street in Milwaukee. The employee's attorney was present at the hearing but the employee did not appear.

The issue is whether the employee had good cause for his failure to appear at the January 29 hearing.

The document the employee completed when he appeared at the hearing location on January 29 shows that it was completed at 11:55 a.m. The employee stated in this document (exhibit #2) that he left for the hearing at 10:50 a.m. from his home at 5627 North 72nd Street, drove east on Silver Spring Drive and south on I-43, didn't phone the hearing office because his attorney had all of his documents, and was late because he went to the wrong building and couldn't find a parking space for 10 minutes.

At the hearing on the issue of good cause, the employee testified that he received the hearing notice, that he had given the hearing notice to his attorney after he received it, that he had asked his attorney what time the hearing was to be held and she told him 11 a.m., that he and his attorney agreed to meet at the courthouse before the hearing, and that he went to the courthouse on the day of hearing rather than the state office building because his sister took him and she assumed the proceeding would take place at the courthouse.

The employee's story does not hang together very well. The commission takes administrative notice that leaving at 10:50 a.m. from 5627 North 72nd Street does not leave enough time to travel to downtown Milwaukee, find a place to park, and walk to the courthouse by 11:00 a.m. In addition, it strains credulity that the employee's attorney would tell him that the hearing was at 11:00 a.m. at the courthouse and then show up at 10:30 a.m. in the state office building hearing room herself. Moreover, the employee gives inconsistent testimony regarding his reason for going first to the courthouse. He first testifies that his attorney told him to meet her there, and then testifies that his sister, who was driving him, took him there because she just assumed that a proceeding like this would be held at the courthouse.

It was the employee's responsibility to obtain the requisite information, and to take the appropriate action, to get to the hearing location on time. Any actions of his attorney are imputed to him.

The administrative law judge concluded that the employee had shown good cause for failing to appear at the hearing because he inadvertently went to the wrong hearing location. This is inconsistent with commission precedent. See, e.g., Smith v. Kenosha Youth Foundation, UI Hearing No. 00601459RC (LIRC April 28, 2000) (parties are required to familiarize themselves with the hearing location in advance of the hearing so as to be able to arrive at the hearing in a timely manner); Koeberl v. A-Arcade Drivers School, UI Hearing No. 02608950MW (LIRC March 13, 2003) (unfamiliarity with downtown Milwaukee and going to the wrong building as a result not good cause for failing to appear at hearing). The facts here, where the employee admits that he left home in another part of the city just 10 minutes before he believed the hearing was scheduled to commence at a downtown location, and where he failed to verify the hearing location prior to the hearing, are even less persuasive than the facts in Smith and Koeberl, supra.

The commission concludes as a result that the employee failed to show good cause for his failure to appear at the properly noticed hearing, and that his request for hearing should be dismissed as a result pursuant to Wis. Stat. § 108.09(4)(d).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing is dismissed, and the department's determination remains in effect.

Dated and mailed April 15, 2004
weberdo . urr : 115 : 2   PC 712.3

/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 reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses or as to the facts, but instead upon a differing interpretation of the relevant law.


cc: Attorney Virginia M. Stuller


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uploaded 2004/04/19