CAROL M COTE, Employee
CONDON OIL CO INC, Employer
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:
A determination awarding benefits was dated and mailed on January 23, 2008.
The employer filed a timely appeal. As a result, a confirmation of timely appeal notice was mailed to the parties on February 6, 2008.
A hearing notice was mailed to the parties on February 13, 2008. This notice stated that the employee was to appear in person at the hearing location in Beaver Dam on February 25.
By letter (1) to the department dated February 14, 2008, the employee stated that she did not have a ride to the hearing nor a driver's license, and the people she knew had to work and could not take her. She implied that she would not be appearing at the hearing, and provided a phone number where she could be reached on February 25. The record does not show that the department replied to the employee's February 14 letter.
The employee did not appear at the February 25 hearing on the merits of her claim. The hearing proceeded without her participation and, on February 26, 2008, the ALJ issued a decision denying benefits.
Based upon the employee's subsequent request for further hearing to permit her participation, the department scheduled a hearing on the issue of whether the employee had good cause for her failure to appear at the February 25 hearing. This good cause hearing was conducted by telephone on March 24, 2008.
At the good cause hearing, the employee testified without rebuttal that she did not appear at the February 25 hearing because she did not have a car, she did not have a driver's license, and the people she knew worked and could not take her to the hearing.
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 its 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. See, Kautzman v. Abraham Isaac & Jacob, UI Hearing No. 98606107MW (LIRC Dec. 23, 1998).
The employee sustained her burden to show good cause. She established at the good cause hearing that she did not have a vehicle or a driver's license, and had been unsuccessful in finding other transportation to the hearing location. She provided the department more than ample advance notice of her lack of transportation to enable it to make the change to a telephone hearing, which Wis. Adm. Code § DWD 140.11(3) grants the department broad discretion to do. However, for reasons it has not explained and which are not apparent to the commission, the department did not respond to the employee nor make the change to a telephone hearing.
The commission therefore finds that the employee failed to appear at the hearing scheduled for February 25, 2008, and that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4)(e) and Wis. Adm. Code Ch. 140.
The employee's February 14, 2008, letter to the department is marked as exhibit no. 1 and received into the record of the March 24, 2008, good cause hearing. The March 24, 2008, decision of the administrative law judge is reversed. The February 26, 2008, appeal tribunal decision is set aside, and this matter is remanded to the department for further hearing, by telephone, and decision on the merits of the employee's claim.
Dated and mailed May 9, 2008
cotecar . urr : 115 : 1 PC 712.3
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.
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