ILONA R EASLEY, Employee
NEW HEALTH SERVICES INC., Employer
Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the appeal tribunal decision in the above-referenced matter and remands the matter for a new hearing and decision. The employee should be given an opportunity to submit certified medical evidence regarding the health of her daughter and the nature of the care required. The ALJ may consider whether a protective order is appropriate pursuant to Wis. Admin. Code § DWD 140.09(4)(c).
Dated and mailed November 13, 2009
easleil : 150 PC 735
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
The employee petitioned the appeal tribunal decision arguing that the Administrative Law Judge (ALJ) forced her to participate in the telephone hearing via cellular telephone while driving on an expressway when she had not received the hearing notice and was not aware the hearing was scheduled for that time. The digital record of the matter has been reviewed. At the start of the hearing, the employee explained that she did not receive notice of the hearing and was driving.(1) The ALJ informed the employee that she could participate by cellular telephone or her case would be dismissed. The employee agreed and the hearing record reflects that the employee did not have the exhibits with her, had difficulty hearing on several occasions and was disconnected once. Based likely in part upon the delays caused by these difficulties, when it was the employee's opportunity to testify, she was informed that approximately 10 minutes of hearing time remained for her testimony. While the commission appreciates the pressures placed upon ALJs with increased caseloads and the difficulties associated with conducting hearings by telephone, it does not condone parties participating in a hearing by cellular telephone while driving. It creates a dangerous situation and also undermines the development of the record as parties are unable to devote their attention to the hearing in progress. The record reflects that the employee was not prepared and promptly notified the ALJ of the fact that she had not received notice of the hearing. Further, the employee was not given the opportunity to prove with competent medical evidence that she needed to care for her daughter; a medical form for a family member could have been sent with specific questions which might appease her and her daughter's concerns for privacy yet allowing her to offer the evidence material to her separation of employment. Additionally, the employee has the right to request a protective order be issued regarding the report to prohibit its contents from public inspection.
For these reasons, the commission sets the appeal tribunal decision aside and remands the matter for a new hearing and decision with a different ALJ.
cc:
New Health Services, Milwaukee WI 53233
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