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

CHARLES A WENDLING, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10402792AP


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 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 hearing involving the determination at issue was scheduled as a telephone hearing on June 7, 2010, originating from the Fox Valley Hearing Office in Appleton, Wisconsin, at 8:30 a.m. Notice of the hearing was mailed to the claimant at his correct address on record on May 19, 2010. The administrative law judge was unable to contact the claimant/appellant because anonymous calls were blocked by the employee's phone. Calls from Fox Valley Hearing Office telephones do not identify the telephone numbers. Despite several attempts, the claimant/appellant did not appear. A dismissal decision was issued on June 7, 2010. The claimant sent in a letter explaining his nonappearance and requesting a new hearing.

The issue to be decided is whether the claimant had good cause for his failure to appear at a hearing scheduled for June 7, 2010.

The claimant explained that he was expecting the call for the scheduled hearing but never got the call. He was unaware that his phone system did not accept calls which have blocked numbers. The claimant argued that his failure to appear at the June 7, 2010, hearing was therefore with good cause. The commission agrees. The claimant did not realize that his phone had a block on it. The claimant stated that his wife did not put a block on the phone either. While his wife did not testify at the hearing to support the claimant's testimony in this regard, even if she put the block on the phone without his knowledge, the claimant would have good cause for failing to appear. The claimant's testimony that he was waiting by the telephone for his hearing on June 7, was undisputed. The claimant explained that he waited until 9:40 to contact the hearing office because the hearing notice indicates that the ALJ's call may be delayed by an hour because of the difficulty of precisely scheduling hearings.

The commission therefore finds that claimant failed to appear at a hearing scheduled for June 7, 2010, but that such failure was with good cause within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code § DWD 140.


DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant's request for hearing is not dismissed. This matter is remanded to the hearing office for a hearing and decision on the issue of whether the claimant's failure to file a timely request for hearing was for a reason beyond his control.

Dated and mailed September 23, 2010
wendlch . urr : 145 : 6 PC 712.4 : PC 712

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The ALJ found that the claimant was unaware that his phone system did not accept calls which had blocked telephone numbers. The commission did not reverse the ALJ's decision based on a different impression of witness credibility and demeanor but rather, reverses the ALJ's decision, after reviewing the digital recording, because it concludes that the claimant because he was not aware that his phone did not accept blocked calls had good cause for failing to appear at his hearing.


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