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


PAUL E KAY, Employe

DMF INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98000096MD


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On January 3, 1998, the department issued an initial determination unfavorable to the employe. The employe filed a timely hearing request and, on January 27, 1998, the department issued notice that a hearing was scheduled for February 10, at 8:00 a.m. At the same time the department also issued notices for two other hearings to be held the same day. One involved the same employer and was also scheduled for 8:00 a.m. The other involved a different employer and was scheduled for 9:30 a.m. The employe appeared at the 9:30 a.m. hearing, but did not appear at the hearing scheduled with respect to the instant matter. His hearing request was dismissed as a result.

The issue to be resolved is whether the employe's failure to appear at the hearing was with good cause.

The employe explained that the only hearing notice he received was for the 9:30 a.m. hearing, at which he appeared. He indicated that if he had received notice of the 8:00 a.m. hearing he would have been there. The employe speculated that the hearing notice could have been misdelivered. He explained that his mail is delivered to a post office box and that he has had problems involving misdirected mail. In support of this assertion, the employe presented a United States Postal Service routing slip signed by a delivery supervisor, which indicates that the employe registered complaints in the past about misdelivered mail and states that it is possible he may not have received some of his mail.

Although there is a presumption that a letter properly addressed, stamped and mailed will be delivered and received, this presumption can be rebutted by evidence to the contrary. In this case, the employe testified that he did not receive the hearing notice and that he has had prior problems with misdelivered mail to his post office box. The commission considers this evidence sufficient to rebut the presumption that the employe received the hearing notice. Where the employe did not receive notice of the hearing, he obviously had good cause for failing to appear.

The commission, therefore, finds that the employe failed to appear at the hearing held at 8:00 a.m. on February 10, 1998, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the matter is remanded for a new hearing and decision on the merits.


Dated and mailed: May 27, 1998
kay2.rev : 164 : 6 PC 712.1

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding his impressions of witness credibility. The administrative law judge indicated that he did not find the employe credible. The administrative law judge did not suggest that his credibility impressions were affected by the employe's demeanor, but stated that they were based upon his belief that it is common for people who receive multiple hearing notices to read only one. While the commission is willing to assume that many people do not read all hearing notices received, this fact does not necessarily warrant a conclusion that the employe was untruthful in his testimony. Given the evidence that the employe was having problems with misdirected mail, the commission sees no reason to disbelieve the employe's testimony that the notice was not received.

cc: DMF INDUSTRIES INC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]