ANNE D NELSON, Employee
WAUKESHA MEMORIAL HOSPITAL INC, Employer
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.
The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.
Dated and mailed February 28, 2006
nelsoan . usd : 115 : 1 PC 712.5 PC 712.6
PC 714.10
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
On December 7, 2005, a notice that hearing on the merits of the employee's claim would be conducted on December 19, 2005, was mailed to the employee's address of record. The employee's mother was monitoring her mail while she was in jail.
The employee did not attend the December 19 hearing. As a result, an order dismissing her request for hearing was issued by the department on December 20, 2005. On December 27, 2005, the department received correspondence from the employee explaining that she had been unable to attend the hearing because she was in jail on a probation hold, and requesting further hearing as a result.
A hearing was held on January 30, 2006, to determine whether the employee had good cause for her failure to appear at the properly noticed hearing on the merits of her claim.
At this hearing, the employee testified that she was aware that consuming alcohol was a violation of the terms of her probation and could result in her arrest and incarceration.
The standard for failing to appear at a hearing is "good cause." This is, a party who misses a hearing is entitled to further hearing if the party establishes good cause for its initial failure to appear. The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC Dec. 23, 1998).
Under the circumstances present here, good cause for the employee's failure to appear would not be present if she voluntarily engaged in conduct which she was aware could result in her arrest and incarceration, and this incarceration then prevented her from attending the December 19 hearing. See, Schuricht v. Haluska Company, UI Hearing No. 89-401239AP (LIRC Oct. 16, 1990); Walls v. Cornwell Personnel Associates, Ltd., UI Hearing No. 05601974MW (LIRC June 30, 2005), aff'd sub nom., Walls v. LIRC and Cornwell Personnel Associates, Ltd., Case No. 05-CV-006013 (Wis. Cir. Ct. Milwaukee Co. January 31, 2006).
The employee appears to be contending that her consumption of alcohol on November 30, 2005, was involuntary because she has been diagnosed as an alcoholic. However, an employee must establish an inability to control her use of alcohol by competent medical evidence. See, Michalak v. Reynolds Machine Co., UI Hearing No. 99605074MW (LIRC Oct. 14, 1999); Hochschild v. Midland Paper Co., UI Hearing No. 99606326MW (LIRC April 20, 2000); Donelson v. OSI Collection Services, Inc., UI Hearing No. 04609422MW (LIRC Feb. 15, 2005). The employee has not offered such evidence here.
The employee admits that she was aware that her consumption of alcohol was a violation of the terms of her probation and could result in her arrest and incarceration. The employee made no effort to contact the hearing office, or to have her mother contact the hearing office on her behalf, prior to hearing to explain her circumstances and to request a postponement or a telephone hearing. See, Walls, supra. Given these circumstances, the commission concludes that good cause has not been shown for the employee's failure to appear at the December 19 hearing.
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