SIMONE DAVIS, Employee
NEW HEALTH SERVICES 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 March 23, 2006
davissi . usd : 115 : 1 PC 712.4
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
As a result, notice was mailed to the employee on November 30, 2005, that hearing would be conducted on December 6, 2005, to determine whether she had good cause for her failure to appear at the November 1 hearing. This notice stated under the heading "****Important Messages****" that, "Your testimony will be taken by telephone. Immediately contact the hearing office if the number listed is incorrect or missing. Your appeal may be dismissed if you are unavailable when called." The telephone number for the hearing office was listed on the face of the hearing notice.
After receiving this notice, the employee's phone was disconnected. When the employee's phone was reconnected, but with a different phone number, the employee contacted a department claims/adjudication office on or around the day before hearing with the new number. The employee did not provide this new number to the department hearing office as instructed in the hearing notice, or alert the department representative to whom she provided the new number that she had a hearing scheduled within the next few days.
As a result, the hearing office was unable to contact the employee for the December 6 hearing.
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).
The employee's failure to follow the explicit and prominent instructions on the notice to contact the hearing office, the telephone number for which appeared on the face of the notice, to provide the telephone number at which she could be reached for the December 6 hearing, if, as here, it was different than the number stated on the notice, was not the action of a reasonably prudent person. It was also not the action of a reasonably prudent person not to contact the hearing office when a call did not come in from the administrative law judge on the date and at the time the hearing was scheduled to commence. As a result, the commission agrees with the administrative law judge that the employee failed to show that she had good cause for her failure to appear at the properly noticed hearing of December 6, 2005.
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uploaded 2006/03/27