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

AARON L WITHEE, Employee

METAL CULVERTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003810JV


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, except that it makes the following modifications:

Delete the second full paragraph on page 4 of the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW and substitute therefor:

"The employee/respondent explained that he did not appear for the hearing because on July 3, 2005, he had been severely injured while riding a horse, including two broken legs and broken ribs. As a result, he had been hospitalized at the University of Wisconsin hospital from July 3, 2005, until August 2, 2005. His wife stayed with him at the hospital for the first several weeks and then began to look after his affairs. The employee testified that it was his belief that his wife contacted the hearing office to inform it he would not be able to appear. The fact that the employee was hospitalized after a serious injury, was released from the hospital on the day of the hearing and was unable to handle his affairs properly amounts to good cause for his failure to appear."

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee/respondent's request for a rehearing on the merits is approved. The matter will be scheduled for a hearing on the merits as soon as possible.

Dated and mailed December 15, 2005
witheaa . usd : 145 : 1  PC 712.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer, in its petition for commission review asserts that the employee knew in advance that he would not be able to attend his hearing yet failed to take any action to request a postponement. The employer argues that the employee, a few days before the Confirmation of Timely Appeal was mailed was involved in a serious horseback riding incident. The employer argues that the employee's wife, during this time was opening his mail. However, she failed to contact the department to inform it that he was in the hospital and to request that the department not schedule a hearing until he was released. The employee testified that he had to be taken from Janesville Hospital to the UW Hospital in Madison by Med-flight. In addition, he was hospitalized for a month with serious injuries. The employee testified that his wife was at the hospital around the clock for two and a half weeks. Further it appears that the employee's wife had been taking care of these matters because the employee was unable to do so. The employee's wife contacted an attorney about the best procedure for notifying the hearing office that the employee could not appear and she followed the advice given to her by her attorney. Essentially, the employee was not physically able to handle the matter of his hearing and had to rely upon his wife to make arrangements for him. The employee has demonstrated that his failure to appear was with good cause.

The employer argues that the employee was released from the hospital on the day of the hearing, and was aware of the hearing, yet he failed to contact the hearing office until he received the appeal tribunal decision that reversed the initial determination and found that he was ineligible for benefits. The commission was troubled by these actions on the part of the employee, as well as the fact that the employee did not return the certified medical report sent to him by the department. However, this goes more to whether the employee was as incapacitated as his testimony indicates. The commission discussed witness credibility and demeanor with the ALJ who held the hearing and he found the employee's testimony with respect to his injury to be credible. As such, the commission concludes that the employee's failure to appear was with good cause.

cc:
Attorney Jennifer A. Farley
Metal Culverts, Inc. (Evansville, Wisconsin)


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