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

JOSEPH L WARNE, Employee

REYNOLDS WHEELS INTL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003479


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On July 6, 2006, the department issued an initial determination unfavorable to the employee. The employee filed a timely hearing request and, on August 2, 2006, the department issued notice that a hearing was scheduled for August 14. The employee did not appear, and his hearing request was dismissed. The employee submitted a timely appeal, in which he explained that he missed the hearing because he never received the hearing notice. The dismissal order was therefore set aside and a hearing was held on the employee's failure to appear.

At the procedural hearing the employee testified that in mid-July of 2006 he moved to his parents' residence on Woodland Drive. Department records show that the employee notified the department of his new address and that the confirmation of timely appeal, hearing notice, and appeal tribunal decision were all mailed to the employee at the Woodland Drive address. The employee received the confirmation of timely appeal, issued on July 20, and was actively waiting and watching for the hearing notice, but did not receive it. The employee testified that there were problems with the receipt of his mail associated with the move and that he had taken his concerns to a supervisor at the post office, who advised him that this was not unusual and suggested he have his mail sent to both addresses until the problem got straightened out.

The issue to be resolved is whether the employee's failure to appear at the hearing was with good cause.

Although there is a presumption that a letter properly addressed and placed into the postal stream will be received, this presumption can be rebutted by credible evidence to the contrary. In this case, the employee testified that he did not receive the hearing notice and explained that he had just moved and was having trouble with the receipt of his mail. The fact that the employee received other documents mailed to him by the department does not render this assertion incredible. While the administrative law judge was also troubled by the fact that the employee did not file his appeal immediately upon receipt of the adverse appeal tribunal decision, the employee credibly explained that he was busy with another move and just wanted to make sure his appeal got in before the deadline.

Under all the facts and circumstances, the commission accepts the employee's testimony that he did not receive the hearing notice, and concludes that the lack of notice provided him with good cause for his failure to appear.

The commission, therefore, finds that the employee failed to appear at the hearing scheduled for August 14, 2006, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

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

Dated and mailed December 7, 2006
warnejo . urr : 164 : 9   PC 712.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE:  The commission conferred with the administrative law judge about witness demeanor. However, the administrative law judge had no demeanor impressions to impart.

 

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uploaded 2006/12/15