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

JERMAINE F WALLS, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05601974MW


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 August 17, 2004, the department issued an initial determination suspending unemployment insurance benefits because the employee quit, but not for a reason that would allow immediate benefit payment. The employee filed a request for hearing. Pursuant to that request, a hearing was scheduled for February 28, 2005, at 10:30 a.m. Notice of hearing was mailed to the parties at the addresses of record on February 7, 2005. The employee failed to appear because he had been incarcerated on February 16, 2005, for failing to abide by the conditions of a personal recognizance bond release. He wrote a letter to the department from the House of Correction that was postmarked on February 28 and that requested a postponement. Although in contact with a family member, he did not ask the family member to request a postponement prior to that date.

The issue presented is whether the employee failed to appear for his hearing for reasons amounting to good cause.

Wis. Stat. § 108.04(9) provides that a hearing request may be dismissed if a party-appellant fails to appear and the party may be afforded another opportunity to be heard only if good cause is shown for the failure to appear. Excusable neglect, the neglect of an otherwise reasonably prudent person, may amount to good cause. Hedtchke v. Sentry Ins. Co., 109 Wis. 2d 461, 468, 326 N.W. 2d 727 (1982).

The employee failed to appear at the hearing because he was incarcerated from February 16 until March 22 for failing to attend a program as required by a personal recognizance bond. The employee could only make collect calls from jail. His mother would accept a collect call, but was not able to do three-way calls. The employee did not believe the hearing office would accept a collect call. He did not ask his mother to call the hearing office on his behalf because he was trying to get out of jail completely.

The employee's incarceration, under these circumstances, did not give him good cause for failing to appear at the hearing. The employee requested a hearing and was or should have been aware that a hearing would be scheduled. The employee failed to abide by one of the conditions of his personal recognizance bond and was incarcerated as a result. After he was incarcerated, he made no effort to contact the department. He did not contact the hearing office or ask his mother to contact the hearing office to see whether the hearing office could call him at the jail.

The commission therefore finds that the employee-appellant failed, without good cause, to appear at the originally scheduled hearing of February 28, 2005, within the meaning of Wis. Stat. § 108.09(4).

DECISION

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

Dated and mailed June 30, 2005
wallsje . urr : 145 : 4  PC 712.5 PC 712.6

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a differing impression of witness credibility and demeanor. Rather, the commission reversed the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

cc:
Benjamin Alger
Jermaine F. Walls
 


Appealed to Circuit Court.  Affirmed January 31, 2006.   [Circuit Court decision summary]

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