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

EARL R SHOEMAKER, Employee

DOWCO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10403442AP


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department issued an initial determination unfavorable to the employee, and the employee timely requested a hearing. A telephone hearing was scheduled for July 29, 2010, at 1:45 p.m. The administrative law judge attempted to contact the employee at the telephone number provided, but was unable to get through because the employee has a call blocking feature on his telephone which blocks incoming calls that do not contain caller identification. The administrative law judge received a recorded message notifying him that the caller was not accepting anonymous calls and to please unblock his line and try again. The administrative law judge attempted two more times, but received the same message each time. At 3:08 p.m., about an hour and a half after the hearing was to have started, the employee called the hearing office to ask why he was not called. He was told that a call had been placed.

On August 2, 2010, the employee submitted a written explanation for his failure to appear at the hearing. Based on that explanation, the appeal tribunal decision was set aside and, on August 31, 2010, a hearing was held on the issue of the employee's failure to appear. The employee appeared at that hearing and presented evidence on his behalf. On September 1, 2010, the administrative law judge issued a decision finding no good cause for the employee's failure to appear at the July 29 hearing and dismissing his hearing request. The employee has filed a timely petition for commission review of that decision.

The issue to be resolved is whether the employee's failure to appear at the July 29 hearing was with good cause.

The employee was expecting the call from the administrative law judge and waited by his telephone for over an hour. He did not receive the call from the administrative law judge because he has a call blocking feature on his telephone which blocks incoming calls that do not contain caller identification. The employee was unaware that the hearing office would call from an anonymous line. Had he realized this was the case he would have deactivated his call blocking feature for the hearing.

A party who misses a scheduled unemployment insurance hearing is entitled to rehearing if the party had good cause for its failure. The courts have defined good cause to be no more than "excusable neglect," that is, the neglect a reasonably prudent person would have exercised in similar circumstances. The employee could reasonably assume that a telephone call coming from a state office would not have a blocked number and, therefore, would not have foreseen the need to deactivate call blocking. While it might be prudent to deactivate call blocking any time an important call is expected, the employee's failure to do so under these circumstances was, at worst, excusable neglect.

The commission, therefore, finds that the employee failed to appear at the hearing scheduled for July 29, 2010, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded for a hearing and decision on the merits of the case.

Dated and mailed October 25, 2010
shoemea . urr : 164 : 2 PC 712 : PC 712.4

/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 about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of credibility, but is because the commission believes that failure to anticipate that the hearing office would call from a blocked line constitutes good cause for missing a hearing.


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uploaded 2010/11/02