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

HEATHER M DUE, Employee

CONCOURSE HOTEL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11000905MW


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. On May 19, 2011, the commission issued a decision which reversed the appeal tribunal decision and found that the February 11, 2011, appeal tribunal decision was reinstated. Pursuant to Wis. Stat. § 108.09(6), the commission sets aside its May 19, 2011, decision on the grounds of mistake.

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department's initial determination allowed benefits. The employer appealed timely and a hearing was scheduled for February 10, 2011, at which time only the appellant appeared. An appeal tribunal decision was issued and mailed on February 11, 2011, which reversed the initial determination and denied benefits. Within 21 days the employee/respondent filed a request for a rehearing on the merits. The appeal tribunal decision was then set aside for further consideration of that request.

The issue to be decided is whether the employee had good cause for the failure to appear at a hearing scheduled for February 10, 2011.

The employee argues that she received her hearing notice timely and fully planned on attending the hearing. She mistakenly thought the hearing was scheduled for 1:00 p.m. rather than 11:00 a.m. When she arrived nearly two hours late for the hearing she had her documentation and a witness.

Under Wis. Stat. § 108.09(4)(d) and (4)(e), a party who fails to appear at a hearing may be entitled to another hearing if he or she shows good cause for missing the first hearing. The commission and the courts have held that good cause is something more than negligence, carelessness, or inattentiveness. Good cause may be found where there has been excusable neglect or neglect which may have been the act of a reasonably prudent person under similar circumstances.

Misreading a hearing notice does not constitute good cause, i.e., a reasonably prudent person would have carefully read the hearing notice and properly noted the time. See, e.g., Royster v. Kelly Services Inc. (LIRC May 1, 2002); Laumb v. Manpower, UI Hearing No. 03008576LX (LIRC April 14, 2004); Blunck v. Brickstone LLC, UI Hearing No. 02002279MD (LIRC August 1, 2002) (misreading hearing notice not excusable neglect because parties are expected to take the time to carefully and thoroughly read information received from the department) and Saylor v. McCain Foods USA, Inc,. UI Hearing No. 03004741WR (LIRC Nov. 19, 2003).

The employee misread the hearing notice and as such did not appear in a timely fashion for the hearing. Applying the good cause standard defined above, the commission concludes that the employee's failure to appear was not with good cause. While the employee may have made an honest and regrettable mistake, the commission is satisfied that a reasonably prudent person under similar circumstances would have read the hearing notice more carefully and noted the actual time of the hearing. The commission is satisfied this misreading which led to the employee's misunderstanding of the actual scheduled hearing time does not constitute excusable neglect or good cause within the meaning of statute.

The commission therefore finds that the employee/respondent failed to appear at a hearing scheduled for February 10, 2011, and that such failure was not with good cause within the meaning of Wis. Stat. § 108.09(4)(d) and Wis. Admin. Code ch. DWD 140.

The commission further finds that the employee was paid benefits in the amount of $111 per week for each of weeks 45 of 2010 through 6 of 2011 and week 15 of 2011 through 21 of 2011, amounting to a total of $2,331.00; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee/respondent's failure to appear at a scheduled hearing was not with good cause. Another hearing will not be granted. The February 11, 2011, appeal tribunal decision is reinstated. The employee is required to repay the sum of $2,231.00 to the unemployment reserve fund.

Dated and mailed June 10, 2011
duehe . urr : 145 : 6

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ before determining to reverse the appeal tribunal decision. The commission's decision to reverse the appeal tribunal decision is not based upon differing credibility. Rather the commission concludes that the employee's misreading of the hearing notice does not constitute good cause within the meaning of the law.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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