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


DEBORA A RIEGEL, Employe

BAYMONT INNS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602075MW


Pursuant to authority granted in Wis. Stat. § 108.09(6)(c), and based on mistake, the commission hereby sets aside, amends and reinstates as amended, the appeal tribunal decision dated April 9, 1998. The appeal tribunal decision is amended to read as follows:

"An appeal tribunal decision dated March 5, 1998, in hearing number 98601092MW held that the employe was suspended from eligibility for unemployment benefits until she requalified, and that she must repay $997 in overpaid benefits. That decision was set aside on March 11, 1998, pending resolution of an issue as to whether the employe had good cause for her non-appearance at the hearing held on March 2, 1998, on which the March 5 appeal tribunal decision was based. Hearing was scheduled for April 9, 1998, by notice of hearing mailed to the employe's last-known address on March 31, 1998, to take testimony on the issue of good cause for non-appearance. The employe did not appear at the April 9 hearing.

"Wis. Stat. § 108.09(4)(e) provides that, if the respondent fails to appear at a hearing.but the appellant is present.the appeal tribunal shall hold the hearing and shall issue a decision unless the respondent shows good cause for non-appearance. Since the employe/respondent did not appear at the hearing on March 2, 1998, and she did not appear at the hearing scheduled for April 9, 1998, to give her an opportunity to provide evidence regarding good cause for her non-appearance, she did not show good cause for her non-appearance at the hearing on March 2, 1998, within the meaning of Wis. Stat. § 108.09(4)(e).

"DECISION: The employe is not entitled to another hearing in which to present testimony on the merits. The appeal tribunal decision in hearing number 98601092 dated March 5, 1998, is reinstated. The employe is ineligible for benefits beginning in week 37 of 1997, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment after the week of quitting equal to at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $997 to the department."

As so amended, the appeal tribunal decision dated April 9, 1998, is reinstated.

Dated and mailed July 8, 1999
riegede4.usd : 180 : 7 PC 712.9  PC 740

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: This action is taken because the administrative law judge erroneously stated the effect of the employe's failure to appear at the good cause hearing scheduled for April 9, 1998. Since she was not the "appellant" from the initial determination, which had allowed benefits, but rather the "respondent", the statutes relevant to respondent non- appearance rather than those relating to appellant non-appearance were applicable. By failing to appear at the good cause hearing, the employe did not demonstrate good cause for missing the hearing on March 2, 1998, and, therefore, the appeal tribunal decision based on that hearing, based on testimony from the employer-appellant alone, should have been reinstated. The administrative law judge correctly noted the employe's non-appearance at the good cause hearing but mistakenly stated the effect as dismissing the "appellant's" request for hearing, and the initial determination remaining in effect.

The employe attempted to contest the administrative law judge's decision of April 9,1998, by filing a written statement on May 12, 1998. Her statement was treated as a petition for commission review but, despite having been given the opportunity to explain in writing why her petition was late (the deadline had been 21 days from the appeal tribunal decision, or April 30), she did not do so, and the commission dismissed her late petition by decision dated June 26, 1998, which was not appealed further.

The employer has contacted the department inquiring why its account has not been credited with the overpayment, and the department has notified the commission and recommended the commission rectify the proceedings under its statutory authority.

cc: JOHN RICHARD
BUREAU OF BENEFITS


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