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

HANA E BECKEL, Employee

ALLIANCE WELLNESS CENTER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05005517MD


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

The hearing on the merits in this case was scheduled for 12:30 p.m. on July 12, 2005. The employer was the respondent. The employer did not appear at the start of the hearing. The hearing began at 12:33. The hearing ended at 12:42:40. The employer arrived at the hearing room at 12:43:22.

The issue to be decided is whether the employer had good cause for the failure to appear at a hearing scheduled for July 12, 2005. The standard for a failure to appear at hearing is "good cause." That 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 individual might commit in similar circumstances.

The employer was late because a patient arrived late for an appointment and was in pain and had to be attended to by the employer. The employer left for the hearing later than planned and in her haste forgot to take the hearing notice. The employer mistakenly believed the hearing was located at the courthouse. Once at the court house the employer was directed to the correct location. The ALJ took administrative notice of the recorded hearing to determine when the employer arrived at the hearing location.

The commission has reviewed the digital recording of the hearing. The ALJ introduced the record and stated that it was 12:33. Wis. Admin. Code § DWD 140.13 states that, "If the respondent does not appear within five minutes after the scheduled starting time of the hearing and the appellant is present, the administrative law judge may commence the hearing." The ALJ started the hearing two minutes early. That two minutes was all the employer would have needed to appear at the hearing location and been allowed to offer testimony.

The commission finds that the employer's reasons for failing to appear did not constitute more than excusable neglect. The employer had planned to attend the hearing, and to leave at a time that would permit her to appear on time. The employer was delayed because she chose to attend to a patient in need, and understandably, left in haste and without the hearing notice. These facts combined with the fact that the hearing was started early, lead the commission to find that the employer had good cause for failing to attend the July 12, 2005, hearing within the meaning of Wis. Stat. § 108.09(4)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed March 23, 2006
beckeha . urr : 132 : 8 :  PC 712.2   PC 712.6

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness demeanor. The commission has reversed the appeal tribunal decision because, after reviewing the record, it reached a different conclusion than that reached by the ALJ.

 

cc:
Attorney Guy W. Fredel
Attorney Jeffrey T. Jones


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uploaded 2006/03/27