BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

DAVID S  ROEPKE, Employee

Involving the account of

STOELTING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92001543FL


FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department issued an Initial Determination on December 3, 1991, which assigned weekly self-employment income to the employe of $109.62, from July 1, 1990 through February 9, 1991. The determination resulted in an overpayment of benefits to the employe in the amount of $1,038.00. The employe timely requested a hearing on the adverse Initial Determination, and hearing was scheduled for February 25, 1992. The employe's spouse appeared at the hearing on the employe's behalf, but without any written authorization from the employe. The Administrative Law Judge, in a March 26, 1992 Appeal Tribunal Decision, thereupon dismissed the employe's request for hearing because of the employe's failure to have appeared. In the narrow circumstances of this case, the Commission believes the employe's spouse was competent to appear at hearing on behalf of the employe, and so reverses the Appeal Tribunal Decision.

In the vast majority of cases, the employe indeed must appear at hearing on his or her own behalf. This is not because of any absolute rule requiring the employe's attendance, but rather because it is almost always the employe who has firsthand knowledge of the facts in issue with regard to the employe' s benefit claim. Section ILHR 1140.12 (1) allows the introduction of hearsay testimony, but precludes the making of findings based solely upon hearsay in disposition of an issue, unless the hearsay testimony is admissible pursuant to Chapter 908 of the Statutes. In the case now before the Commission, though, the issue is the proper allocation across the above-mentioned time period of the employ's self-employment income. The person who performs the accounting and bookkeeping work for that employment will have firsthand knowledge of the proper distribution of that income. In this case, that person is the employ's spouse. Indeed, it is possible that the employe himself would have been unable to show the applicability to the accounting records of the so-called business records exception to hearsay, sec. 908.03 (6), Stats. For these reasons, the Commission believes the employe's spouse was the most competent witness to present testimony with regard to the employe's self-employment income.

The Appeal Tribunal, in disallowing the employe's spouse to appear on the employe's behalf, reasoned in part that the employe' s spouse had no formal authorization to appear on his behalf. In the narrow circumstances of this case, that is, where the employment in question is for practical purposes a joint venture between the employe and employe's spouse, and the spouse possesses firsthand the knowledge necessary for resolution of the unemployment issue, the Commission believes no formal authorization by the employe as to the spouse's appearance should be necessary. In the rare instances where this issue will come up in the future, a brief, on-the-record questioning of the spouse by the Administrative Law Judge should be sufficient to establish whether the spouse is competent to proceed on the employe's behalf. The record in this case indicates that the empioye's spouse was so competent. The Commission therefore finds that the employe did not fail to appear at the February 25, 1992 hearing scheduled in this matter.

DECISION

The Appeal Tribunal Decision is reversed. The matter is remanded for hearing and decision on the merits.

Dated and mailed May 13, 1992
105 - CD1072   PC 712

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

 

NOTE: The Commission's decision, as was the Appeal Tribunal's, is based upon the documentary evidence in the file, which the Commission is in a position equal with that of the Administrative Law Judge to analyze. The Commission thus had no occasion to confer with the Administrative Law Judge as to matters of credibility, since such matters could not have been at issue in this case.

 


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