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

PAUL J RUSSO, Employee

ACUTE CARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003121MD


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 wages paid to the employee by the employer totaling $45,394.03 shall be included in the department's computation of the employee's base period wages for computing potential benefit eligibility.

Dated and mailed November 10, 2005
russopa . usd : 164 : 1   PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer's petition for commission review contains no argument and the commission has no specific indication as to why the employer believes it should prevail based upon this record. Notwithstanding this, the commission has reviewed the hearing record in order to determine whether the appeal tribunal's findings of fact and conclusions of law are supported. Based upon its independent review of the record, the commission agrees with the factual findings made by the appeal tribunal and with its legal conclusion that the claimant performed his services for the employer as an employee and not as an independent contractor. Accordingly, the appeal tribunal decision is affirmed.

 

NOTE: Although the employer has not raised this in its petition, the commission notes that the administrative law judge barred the employer's attorneys from representing the employer at the hearing on the ground that they are not licensed to practice law in the State of Wisconsin. However, the administrative rules provide that any party may appear on the party's own behalf at any hearing or appear with or by a representative, but that no attorney whose license is suspended or who has been otherwise disbarred and prohibited from practicing law by the courts or bar association of any state may be allowed to act as a representative at any hearing under this chapter. See Wis. Admin. Code § DWD 140.02. The rule appears to contemplate that parties can be represented by out-of-state counsel, providing the attorney has not been disbarred or prohibited from practicing law. In light of the rule, and considering that in administrative proceedings the procedures are generally more relaxed, the commission believes that the best practice is to permit a party to appear by the representative of its choice.


cc: Acute Care, Inc. (Des Moines, IA)



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