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

VICKI PRINZ, Employee

CURATIVE CARE NETWORK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05604778MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employee.

Wisconsin Stat. § 108.09(6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. 'Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing . . ."

Wisconsin Admin. Code § LIRC 2.01(1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The appeal tribunal decision (ATD), dismissing the employee's request for hearing because it had been filed after the appeal deadline, having been dated and mailed on July 18, 2005, the last day on which a timely petition for review could have been filed was August 8, 2005. The petition for review was postmarked August 18, 2005. It was received August 19, 2005.

The employee originally explained to the commission that, due to a mental health condition, she was hospitalized in Arizona, where she had been residing; upon her release, she came to stay with her daughter in Cedarburg, Wisconsin, to recuperate; and, by the time the mail from the department caught up with her, the time period for appealing the ATD had passed. Concluding that the complainant's hospitalization had been concluded more than three weeks before the ATD had even been issued, the employee had failed to allege a medical incapacity during the appeal period, and it had been her responsibility to establish a reliable mechanism for monitoring time-sensitive correspondence from the department, the commission dismissed the employee's untimely petition in a decision dated and mailed on September 2, 2005.

In a letter dated September 16, 2005, and received by the commission on September 19, 2005, the employee represented that she was hospitalized a second time after her arrival in Wisconsin, but did not specify the dates of this second hospitalization. The employee also represented in this letter, borrowing from the language of the commission's decision, that she "was incapacitated from a medical condition" during the relevant time period.

Given the employee's new contentions, the commission remanded this matter to the department, by order dated October 5, 2005, to give the employee the opportunity to prove that she was medically incapacitated during the time period for appealing the ATD (July 18 through August 8, 2005), and during the time period for appealing the department determination (May 26 through June 9, 2005).

In anticipation of hearing, the department mailed the employee a UCB-474 form on December 2, 2005. The employee's treating physician completed this form on December 9, 2005, and it was received by the department on December 13, 2005. This UCB-474 form stated that the employee was medically incapacitated due to mental illness from June 13 through July 10, 2005, and due to shoulder surgery from August 31 through September 1, 2005.

An amended hearing notice was mailed to the employee on April 19, 2006, stating that the remand hearing would be conducted by telephone on May 10, 2006, at 8:15 a.m. central time. The employee phoned the department on May 1, 2006, advising that she was then living in Tucson, Arizona, and providing her current address and telephone number.

On May 10, 2006, the ALJ phoned the employee at 8:18 a.m. central time (6:18 a.m. Arizona time) but got no answer. The ALJ repeated the call at 8:32 a.m. central time (6:32 a.m. Arizona time), but there was still no answer.

On May 10, the employee phoned the department at 10:41 a.m. central time. She was advised to write a letter explaining why she did not appear at the hearing earlier that day.

In correspondence received by the department on May 11, 2006, the employee explained that she thought the time specified on the hearing notice was Arizona time, not Wisconsin time, and that was the reason for her failure to appear at the May 10 remand 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 issue before the commission then is whether it was excusable neglect for the employee to assume that the time stated on the notice for the May 10 remand hearing was Arizona time instead of carefully reading the notice and discerning that it referenced "central time."

The circumstances present here are more closely akin to those in which a party misplaces or misreads a hearing notice, which the commission has held does not constitute good cause,(1)  than to those in which a party presents a rational explanation for having marked a wrong date or time on a calendar, which the commission has held does constitute good cause.(2)  According to the employee's version of events, she mistakenly assumed that the time stated on the notice was Arizona time rather than Wisconsin time (central time). Her presence in a state other than Wisconsin should reasonably have alerted the employee to carefully check the time stated on a hearing notice issued by a Wisconsin agency to ascertain whether it was Arizona time or Wisconsin time. Instead, the employee simply assumed that the time stated on a hearing notice issued by the Wisconsin Department of Workforce Development was Arizona time. A careful reading of this notice would have revealed that the time stated was Wisconsin time (central time).

The employee's actions were not those of a reasonably prudent person. See, Wilson Park Garden Apartments v. LIRC and Dale A. Thompson, Case No. 94-CV-010336 (Wis. Cir. Ct. Milwaukee County, May 23, 1994)(employer's incorrect assumption that hearing scheduled to commence at 9:30 a.m. not good cause for failure to appear at hearing noticed to commence at 9:00 a.m.). As a result, further hearing is not merited here.

The final issue then is whether the employee has offered a reason beyond control for her untimely petition for commission review. Although provided the opportunity to do so, the employee has not shown that she was medically incapacitated during the time periods relevant here. First, she failed to appear at the properly noticed remand hearing. Moreover, the only medical information she has provided does not establish that she was medically incapacitated during the appeal period for the department determination or for the appeal tribunal decision. Specifically, this medical information states that the employee was medically incapacitated from June 13 through July 10, and from August 31 through September 1 of 2005. However, the appeal period for the department determination was May 26 through June 9, 2005, and for the appeal tribunal decision was July 18 through August 8, 2005.

The commission therefore finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09(6)(a).

DECISION

The petition for review is dismissed.

Dated and mailed May 25, 2006
prinzvi3 . upr : 115 : 4  PC 712.6  PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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Footnotes:

(1)( Back ) See, Blunck v. Brickstone LLC, UI Hearing No. 02002279MD (LIRC Aug. 1, 2002); Laumb v. Manpower, UI Hearing No. 03008576LX (LIRC Aug. 14, 2004); Saylor v. McCain Foods USA, Inc., UI Hearing No. 03004741WR (LIRC Nov. 19, 2003); White v. Hill Building Maintenance, UI Hearing No. 04404104AP (LIRC May 6, 2005).

(2)( Back ) See, Marshall v. The Eyecare Place, Inc., UI Hearing No. 03403082GB (LIRC Feb. 26, 2004).

 


uploaded 2006/06/05