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

JAMES C MAXWELL, Employee

TECH II TRUCKING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07401312AP


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for a rehearing on the merits is granted.

Dated and mailed August 17, 2007
maxweja . usd : 115 : 1   PC 712.4

/s/ James T. Flynn, Chairman

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee admits receiving notice from the department that hearing on the merits of his claim would be conducted at 9:45 a.m. on May 24, 2007, by telephone.

The file in this matter indicates, and the employee does not dispute, that, at the noticed date and time, the administrative law judge twice attempted to contact the employee at the phone number he had provided the department, but was unable to get through and left a voice mail message.

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 his 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 testified, at the hearing on the good cause issue, that, at 8:05 a.m. on the day of hearing, his cell phone, the only phone he possessed and to which he had access, was dropped and became inoperable as a result; he immediately drove to the nearest phone repair facility but was unable to get his cell phone repaired prior to the time of hearing; and he contacted the hearing office as soon as his phone was repaired.

The employee's actions were those of a reasonably prudent person. He reasonably anticipated that he would be able to use his cell phone to participate in the hearing and provided this number to the department. When this phone, the only phone to which he had access, became inoperable, he took action to have it repaired but these repairs were not completed until the hearing time had passed. As a result, the employee sustained his burden to show good cause. See, Rupnow v. Staffing Network, Inc., UI Hearing No. 99002418MD (LIRC Sept. 30, 1999) (good cause where employee truck driver could not reasonably have anticipated that pay phones he intended to use to participate in hearing would be inoperable at time).

Although the employer offers certain information in its petition which, if proved, could show that the employee may have had access to other phones on the day of hearing, this information is not a matter of record, and, as a result, the commission may not consider it in reaching its decision.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2007/08/20