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

ROBERT C WESTERHAUSEN, Employee

HUP'S PIZZA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04601304


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 02 of 2004, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed June 30, 2004
westero . usd : 150 : 3  PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee petitioned the appeal tribunal decision arguing that he should be eligible for unemployment insurance benefits and offering additional facts not presented at the hearing. Additionally, attached to his petition, was an affidavit from an individual who did not appear as a witness at the hearing. To support the commission's consideration of this additional information, the employee argued that his ability to present his case was hampered at the hearing because he is learning disabled. He further contended that while he brought his mother to assist him at the hearing, the administrative law judge sequestered her from the hearing room.

In light of these assertions, the digital record of the hearing has been reviewed. At the start of the hearing, the employee did not dispute that he was representing himself and did not mention any learning disability or the need for his mother's assistance. When the administrative law judge asked why his mother was at the hearing, the employee responded that she was to provide testimony regarding his truck. His mother was in the hearing room at that time and did not state that she was there to assist him or that he had a learning disability. Given the responses to the administrative law judge's questions and the possible credibility issues, the administrative law judge properly sequestered the employee's mother and the employer's witness.

More importantly, based upon the review of the record, there is no evidence that the employee was unable to adequately represent himself. He presented the relevant facts and cross-examined the witnesses. He only referenced his learning disability after the hearing was complete and his mother entered the room to ask why she had not been called.

The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. This was explained in the "Important Hearing Information" section of the hearing notice sent to the parties. Additionally, while the commission does have discretion to order the taking of additional evidence in matters before it, that authority is exercised in only a few exceptional circumstances. Here, given the adequate notice to the parties regarding the hearing procedures as well as the fact that there is no evidence that the employee was unable to adequately represent himself, there is no compelling reason to grant a new hearing. Therefore, the commission's review will be on the evidence submitted at the hearing and the commission will not address or consider the factual assertions and documents offered by the employee in the petition that are not supported by the record.

Ultimately, the critical question in this case is one of credibility. The employer's version of the facts and the employee's version of the facts are inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the administrative law judge, who could observe the demeanor of witnesses and there fore was in a good position to make a determination as to credibility, did not credit the employee's version. The commission has found no compelling reason in the testimony or elsewhere in the record to question the administrative law judge's credibility determination. There fore it will defer to the judgment of the administrative law judge as to credibility, finding that the employee voluntarily terminated his employment. The appeal tribunal decision is therefore affirmed.



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uploaded 2004/07/02