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

KIM A FEHL, Employee

CAPITOL FAMILY DENTAL CLINIC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04601735MD


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/appellant's request for a hearing is denied and her appeal dismissed. The initial determination will remain in effect as issued.

Dated and mailed July 15, 2004
fehlki2 . usd : 150 : 8  PC 712.3

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision that found her failure to appear timely for a hearing at 8 a.m. on March 1, 2004, was not with good cause. With the petition, the employee also attempted to present facts regarding the merits of her separation to support her claim that she should be eligible for unemployment insurance benefits. However, the opportunity for the employee to present those facts was at the hearing at 8 a.m. on March 1, 2004. She received a hearing notice apprising her of the hearing date and time. Not only did the notice notify her that the hearing would be conducted at the State Office Building in downtown Milwaukee, Wisconsin but it also directed her to "allow additional travel time to the hearing as many downtown Milwaukee roads are under construction at this time." The employee did not arrive until 8:25 a.m., after her appeal had been dismissed. The employee was late because she was unfamiliar with the hearing office location, missed the proper exit and, in an attempt to get back to the hearing office, took a wrong turn delaying her further.

A party who misses a hearing is entitled to further hearing if the party establishes good cause for the initial failure to appear. Wis. Stat. § 108.09 (4)(e) The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC Dec. 23, 1998). The commission also held that parties are obligated 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. Smith v. Kenosha Youth Foundation, UI Dec. Hearing No. 00601459RC (LIRC April 28, 2000). In Grunewald v. G G Barnett Transport Inc., UI Dec. Hearing No. 01606176WK (LIRC December 21, 2001), the commission found good cause for a party's failure to appear where although the party was unfamiliar with the hearing location, it took steps to familiarize itself with the location prior to the hearing by downloading a map of the area and contacting the hearing office for directions.

In this case, the employee did not make any attempts to familiarize herself with the hearing location. She simply left her home in what she thought would be sufficient time. In addition to having to find the location, given the time of the hearing, its location and the warning on the notice, there was a real possibility for delay due to traffic, construction and availability of parking. Under these circumstances, while the commission believes the employee's assertion that she was not intentionally late, the commission finds that her failure to familiarize herself with the hearing location prior to the hearing was not the act of a reasonably prudent person in similar circumstances. Her failure to appear was, therefore, not with good cause.

For these reasons, as well as those mentioned by the appeal tribunal, the petitioner's request for a new hearing on the merits is denied.



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uploaded 2004/07/19