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


RANDY L RUPNOW, Claimant

STAFFING NETWORK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002418MD


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 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

An initial determination adverse to the claimant was issued on April 15, 1999, and set forth an appeal deadline of April 29, 1999. The claimant filed an appeal on May 5, 1999. Accordingly, a hearing was scheduled to take testimony regarding whether the claimant's appeal was late for a reason beyond his control. The hearing was scheduled for May 17, 1999, at 2:00 p.m., via the telephone. The claimant did not appear at the hearing. As a result, the appeal was dismissed. Within 21 days the claimant filed a request for a rehearing. The appeal tribunal decision was then set aside and a new hearing scheduled.

The issue to be decided is whether the claimant had good cause for failing to appear at the May 17, 1999, hearing; and if so, whether the claimant's untimely appeal of the determination was for a reason beyond his control.

The claimant is an over-the-road truck driver. He lives with his mother, father and wife. Prior to and up until he received the determination, he did not have his wife, mother or father open or check his mail. His mail remained untouched until he arrived home from his delivery. Sometimes he was gone from home for 14 days or more at a stretch. On April 15, 1999, the determination was mailed to the claimant. His wife received it at his home several days after its mailing. However, the claimant was out-of-town and did not arrive home and open it until the appeal deadline of April 29, 1999 had passed. He requested a hearing to determine whether his late appeal was for a reason beyond his control.

The hearing request was granted and a hearing was scheduled for May 17, 1999, via the telephone in order to accommodate his over-the-road truck-driving status. The claimant's wife received the hearing notice on or about May 12, 1999. However, the claimant did not telephone home until May 15, 1999, and then first found out about the scheduled May 17 hearing. The claimant knew, before the hearing notice was mailed, that he had been granted a hearing and that a hearing would soon be scheduled.

On May 17, 1999, the claimant was out-of-state, delivering a load for the employer. He knew that he was supposed to provide the hearing office with a telephone number to be reached at for the hearing. He did not do so. He did not own a cellular phone and the payphones where he was unloading his truck were not in working order. He possessed the employer's cellular phone, but he did not ask the employer if he could accept a call from the hearing office on that phone. He did not attempt to find a phone in working condition because he feared that his load would not have been delivered on time.

While the department and the commission generally require that parties arrange time off from work in order to attend hearings, given the nature of the claimant's work it was impractical for the claimant to wait at home for the notice of hearing. The claimant was already on the road when the notice of hearing arrived and therefore it was unreasonable to expect him to return home in order to attend the hearing. The claimant reasonably believed he would be able to attend the hearing via telephone at a payphone at his delivery point. Unexpectedly, the telephones were not working. While he did not ask to use his employer's cellular phone, failure to exhaust any option that may have been available is not required to establish good cause for failing to attend a hearing.

The commission therefore finds that the claimant failed to appear at a hearing scheduled for May 17, 1999, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4)(d) and Wis. Admin. Code Ch. DWD 140.

The claimant has not established, however, that his late appeal was for a reason beyond his control. Since the claimant is an over-the-road truck-driver, mail will accumulate during his absence. As a claimant for unemployment insurance benefits he is expected to arrange his affairs in order to promptly respond to department correspondence. Despite the fact that the claimant is away for extended periods of time, he has apparently made no arrangements to have time sensitive mail opened during his absence. This is a decision that is within his control to make. The law imposes a much stricter standard on an individual who fails to file a timely request for hearing than on an individual who fails to appear. The claimant must establish that it was beyond his control to file a timely appeal. The claimant could have had his mail opened by his wife and allowed her to act on his behalf.

The commission therefore finds that the claimant/appellant failed to file a timely request for hearing and such a failure was not for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4)(f).

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the claimant/appellant's request for a hearing is dismissed.

Dated and mailed September 30, 1999
rupnora.urr : 132 : 6 PC 711  PC 712.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has modified the appeal tribunal decision to find good cause for the claimant's failure to appear. While generally parties are expected to arrange time off from work, the commission believes it was not practical for this claimant, as an over- the-road truck driver, to do so. However, the claimant is able to appear by telephone and therefore can be expected to appear even if he is not home when the hearing is scheduled to take place. The claimant could not anticipate that the payphones at the location that he made his delivery at the time scheduled for hearing would be inoperable. However, the claimant failed to file a timely request for hearing. While he was away from his residence and therefore unable to personally open his mail, the commission has always expected parties to make arrangements while absent from home to have mail monitored and monitored in such a way to insure that any time sensitive document can be attended to in a prompt fashion. The claimant made no such arrangements despite the fact that he is away from home for extended periods of time. It was within the claimant's control to take reasonable steps not only to have his mail monitored during the pendancy of his unemployment insurance claim, but also to have it monitored adequately. He did not take such steps.


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