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

THE PHARO COMPANY, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 099932, Hearing No. S0300122


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 request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed March 17, 2005
pharoco3 . ssd : 115 : 2    PC 715 PC 717

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The determination under consideration here, and two companion determinations, were dated and mailed in 2001, (1)  and the employer filed timely appeals. The department issued notices on February 14, 2002, that hearing on these appeals would be conducted on April 19, 2002. The employer failed to appear at the April 19 hearing and, the ALJ, as a result, issued appeal tribunal decisions (ATD's) dismissing the employer's appeals on April 26, 2002.

Before the expiration of the appeal periods for these ATD's, the department received a letter from the employer on May 13, 2002, explaining that it had failed to appear at the April 19 hearing because it had never received the hearing notices.

As a result, the department, by notice dated November 25, 2002, scheduled hearing for December 11, 2002, on the issue of whether the employer had good cause for its failure to appear at the April 19, 2002, hearing. On January 6, 2003, ATD's were issued finding that the employer had sustained its burden to prove good cause for its failure to appeal at the April 19 hearing, and setting aside the April 26, 2002, ATD's dismissing the employer's appeals.

On May 12, 2004, the department issued notices that hearing on the employer's appeals would be conducted on July 29, 2004. The employer and the department appeared at the July 29 hearing. At this hearing, the parties agreed that the hearing should be continued to give them an opportunity to exchange information in order to determine what matters remained in dispute.

On August 30, 2004, the department issued notices that continued hearing on the employer's appeals would be conducted at 8:00 a.m. on September 23, 2004. At the employer's request, the time of the hearing was changed to 10:00 a.m. on September 23, 2004, and amended hearing notices confirming this change were mailed to the parties on September 1, 2004.

On September 20, 2004, the employer's president telephoned the hearing office to request postponement of the September 23 hearing because he was ill. During this telephone conversation, the employer's president was advised that his postponement request was conditionally granted with the understanding that he was to provide medical verification of his illness to the department on or before the date of the rescheduled hearing.

The employer's president testified that, on September 23, 2004, at 10:00 a.m., he was seen by a physician other than his primary provider (Dr. Lonsdorf) at the clinic (UW Health-Mt. Horeb) where both Dr. Lonsdorf and this other physician practice.

The employer's president testified that, on or around October 18, 2004, he was examined by Dr. Lonsdorf at UW Health-Mt. Horeb.

On October 15, 2004, the department issued notices that continued hearing on the employer's appeals would be conducted at 10:30 a.m. on November 9, 2004.

At or around 9:00 a.m. on November 9, 2004, the department hearing office received a facsimile transmission (FAX) from the employer's president to the effect that he was ill and "unable to attend today's hearing" as a result. Rhonda Madge, an Employment Security Assistant in the hearing office, telephoned the employer's president in response to this FAX. During their conversation, the employer's president requested that the hearing be postponed. Madge advised him that she did not have the authority to grant a postponement request on the day of hearing, and would communicate his request to the administrative law judge (ALJ). The employer's president agreed to participate in a telephone hearing in regard to his postponement request.

The ALJ convened this hearing, and took testimony in regard to the employer's requests for postponement of the September 23 and November 9 hearings.

At this hearing, the employer's president agreed that, on or before November 22, 2004, he would provide medical verification of the illnesses upon which he based his September 20 and November 9 requests for postponement; that this verification would consist of office notes establishing that he visited a physician on September 23, mid-October, and November 9, the names of the physicians who examined him on those dates, and their diagnoses, or, if such notes were unavailable, a slip signed by his physician containing such information; and that he understood that failure to provide this verification on or before the deadline would result in the unconditional denial of his requests for postponement and dismissal of his appeals. The employer's president testified that he was scheduled to visit Dr. Lonsdorf at 2:45 p.m. that afternoon.

In a letter dated and FAX'd to the department on November 22, 2004, the employer's president stated that he had requested copies of his medical records on November 11, 2004, and, when he had not yet received them by November 21, 2004, contacted his clinic and was advised by the clinic's records department that it can take from two to six weeks for such records to be provided. In this letter, the employer's president also stated that he would provide these records to the department as soon as he received them.

In appeal tribunal decisions issued December 7, 2004, the ALJ dismissed the employer's appeals for lack of prosecution due to its failure to comply with the November 22 deadline.

It should be noted that, to date, the employer's president has not provided the requested medical documentation.

In his petition for commission review, the employer's president argues that the department did not provide notice to him that hearing would be held on November 9 in regard to his postponement requests, and conducted the hearing over his objection, despite the fact that, at the time, he was "not of sound mind and body" due to illness, and without allowing him representation; that he had no control over the length of time it took his clinic to provide the requested medical records; and that the department did not seek his input when it scheduled the September 23 hearing date.

Wisconsin Administrative Code § 140.08 states as follows, as relevant here:

(1) A party who requests a postponement of a hearing shall make the request known to the hearing office as soon as the party becomes aware that a postponement is necessary. Unreasonable delay in requesting a postponement may be the basis for denial of the request.

(2) No postponements may be granted for the mere convenience of a party. All parties are expected to arrange time off from their everyday affairs, including management duties, work and school, to attend hearings. The hearing office or the administrative law judge scheduled to conduct the hearing may grant a postponement only for an exceptional reason. An exceptional reason may include circumstances such as the following:

(a) Serious illness of a party or necessary witness; ...

The employer argues in its petition, at least by implication, that it was denied due process when its president was required to participate in the November 9 hearing despite lack of notice and medical inability, and when its appeals were dismissed without a separate, noticed hearing on the issue of whether good cause existed for its failure to appear at the September 23 and November 9 hearings.

However, the employer had actual notice since September 20 that its failure to participate in the scheduled September 23 hearing remained under consideration. In addition, it lies within an ALJ's discretion to elicit information from a party regarding the basis for a postponement request in order for the ALJ to determine whether such request meets the requirements of Wis. Adm. Code § 140.08(2). The ALJ's decision to elicit such information from the employer's president on November 9 was particularly apt given the recent procedural history of this matter. Moreover, the record of the November 9 hearing does not indicate that the employer's president objected to participating in it.

In regard to the employer's medical inability argument, the record of the November 9 hearing does not support a conclusion that the president was hindered to any significant extent by a medical condition. Although the president testified that he was running a low grade (99°) fever and was experiencing some discomfort due to occasional intestinal cramping, neither this description of his symptoms nor the content of his hearing presentation would support a conclusion that a medical condition hindered his ability to participate in the hearing in any significant way. Furthermore, the employer fails to assert what additional evidence or argument it would have presented at the November 9 hearing if its president would not have been ill that day. Finally in this regard, it should be noted that the employer was provided an opportunity to substantiate that its president was in fact ill that day and failed to do so.

In addition, the employer waived its right to further hearing on the good cause issue when its president agreed, during the course of the November 9 hearing, that "he was more than happy after today's visit with the doctor to provide the two excuses for the two" postponement requests; when the employer did not object to the ALJ's establishment of ten days as a reasonable amount of time, given the president's scheduled appointment with his physician that afternoon, to provide this medical documentation; and when the employer did not object to the ALJ's proviso, based on this agreement, that, if the subject medical documentation was not received by the deadline, the employer's appeals would be dismissed without further hearing.

The employer also argues in its petition that it was held to an unreasonable standard, and one which it could not meet, when the November 22 deadline was established by the ALJ. However, the employer's president did not object to the deadline when it was established on November 9. Moreover, the ALJ gave the employer's president the opportunity, in lieu of providing copies of the office visit notes/records themselves, to have his physician, whom he indicated he would be seeing that afternoon, provide the required medical documentation on an informal medical slip. It should be noted that the employer's president had already had more than 7 weeks to provide documentation of his claimed September illness and, despite two intervening medical visits, had failed to do so.

The employer contends further that it was not consulted in regard to the selection of the September 23 hearing date. However, the record shows that the employer did not object to the date and, in fact, requested that the hearing time on September 23 be changed from 8:00 a.m. to 10:00 a.m. and this request was granted by the department.

Finally, the employer implies in its petition that its president was denied representation during the November 9 hearing. However, the president was himself the employer's representative at the hearing. Moreover, the hearing record does not indicate that the employer's president ever indicated he had an individual available to represent him and was denied this opportunity for representation.

The commission agrees with the administrative law judge that the employer had full and fair opportunity to justify its failure to appear for the properly noticed September 23 and November 9 hearings on the merits but failed to do so; and that these failures, under the circumstances present here, justify dismissing the employer's appeals.

cc: Peter W. Zeeh


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Footnotes:

(1)( Back ) The employer's appeals have been identified by three different sets of hearing numbers in the course of these proceedings, i.e., S0100146MD, S0100147MD, S0100148MD, and S0200209MD, S0200210MD, S0200211MD, and S0300120MD, S0300121MD, S0300122MD.

 


uploaded 2005/03/30