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

MARCELLIOUS T ALLEN, Employee

WILL ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07602429MW


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 department's initial determination allowed benefits. The employer filed a timely appeal and a hearing was scheduled for March 26, 2007, at which time only the appellant appeared. An appeal tribunal decision was issued and mailed on March 26, 2007, which reversed the initial determination and denied benefits. Within 21 days the employee/respondent filed a request for a rehearing on the merits. The appeal tribunal decision was then set aside for further consideration of that request.

On March 20, 2007, the department mailed hearing notices to the employee and the employer. The employer received his in a timely manner and attended the hearing. The employee did not receive his hearing notice and did not attend the hearing.

The issue to be decided is whether the employee had good cause for his failure to appear at the hearing scheduled for March 26, 2007.

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 occasional 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. The department issued an appeal tribunal decision reversing the initial determination on March 29, 2007. The employee's appeal was received on April 3, 2007. The employee indicated in that appeal that he never received the hearing notice. The employee has consistently stated that he did not receive his hearing notice.

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 March 26, 2007, 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 June 29, 2007
allenma . urr : 145 : 1 PC 712.1

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that the employee was not credible when he testified that he did not get his mail, in part because he had no specific explanation for his failure to receive the hearing notice. The ALJ pointed out that the employee received all of his other department correspondence, and that the hearing notice, which was sent to the employee's address of record, was not returned to the department. While this is true, assuming that the post office lost his hearing notice or delivered it to someone else, the employee would not know what happened to his hearing notice, apart from the fact that he himself never received it. The ALJ also found the employee less than credible because he did not go into specific detail about prior mail problems that he had. The commission reverses the ALJ's credibility determination because the employee's testimony was not disputed and because the employee has consistently indicated he did not get his hearing notice. In addition, there was nothing inconsistent about the employee's testimony.


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uploaded 2007/07/05