GAYLE KING, Employee

UW-MADISON, Employer

Pursuant to the authority granted in Wis. Stat. § 108.09(6)(d), the Labor and Industry Review Commission, orders that the appeal tribunal decision issued in this unemployment matter on January 11, 2008 be set aside and that the matter be remanded for a new hearing before a different administrative law judge. It is further ordered that the employee be sent a UCB-474 medical form to be completed prior to the hearing.

Dated and mailed March 21, 2008
alesct2 . usd : 135 : 1  PC 729

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The employee's petition for commission review alleges ALJ bias and requests another hearing before a different ALJ. After reviewing the record and listening to the digital recording of the hearing, the commission concludes that there is nothing in the record to support the employee's allegation of ALJ bias. However, the commission concludes that due process requires the ALJ's recusal in this case.

In this specific case, the ALJ's spouse worked for the same employing unit as the employee and the ALJ personally knows the employee's supervisor. Also, it is not clear whether the employee was fully able to comprehend the consequences of her consent to have the ALJ continue with the hearing once the ALJ identified the potential conflict. Thus, while the commission appreciates the federal time constraints placed on the department, a new hearing before a different ALJ is ordered.

Finally, the department is ordered to send the employee a UCB-474 medical form to be completed prior to the hearing to ensure that the employee has an opportunity to establish whether her medical conditions prevented her from being able to work for the employer.

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uploaded 2008/03/24