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

FLOYD J TATE, Applicant

REILLY CARTAGE INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1998027479

An administrative law judge (ALJ) for the Worker's Compensation Division 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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed August 31, 1999
tateflo . wsd : 175 : 5 ND § 8.18

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that Mr. Reilly failed to appear at the hearing on April 6, 1999 due to excusable neglect and therefore requests the commission to vacate the administrative law judge's Findings of Fact and Conclusions of Law and Interlocutory Order and remand the matter for hearing on the merits. The employer contends that Mr. Reilly was in such great pain on the morning of April 6, 1999 due to an abscess tooth that he not only missed work but was unable to think straight and missed the hearing as well and that it was not until 2 p.m. on April 6, 1999 that he was able to see Dr. Costello who treated him for approximately an hour for what turned out to be an abscessed tooth. Information in the file indicates that the hearing was scheduled for 2 p.m. on April 6, 1999.

Wis. Stat. § 102.18(1)(a) authorizes the department to issue decisions in worker's compensation cases by default. The court of appeals has affirmed the practice of the commission and the department to issue decisions on a hearing at which only the applicant appears on the theory that the non-appearing respondent is in default. County of Juneau v. LIRC and Skalak, court of appeals, Dist. IV, case No. 84-1746, (unpublished decision, October 24, 1985).

However, a non-appearing party may be entitled to relief in the form of further hearing if his or her failure to appear was the result of excusable neglect. Auclair v. LIRC and Friendly Village, Inc., court of appeals, District II, case No. 83-836, (unpublished decision, May 22, 1984). Excusable neglect is that neglect that might have been the act of a reasonable prudent person under similar circumstances. Auclair, slip opinion at 3, and Hedtcke v. Sentry Insurance Company, 109 Wis. 2d 451, 468 (1982). Excusable neglect is not the same as neglect, carelessness or inattentiveness.

For the purposes of determining whether to remand for hearing on a failure to appear issue, the first step is to assume that the statements offered in explanation by the non-appearing party are true, unless something in the record makes them appear inherently incredible. The next step is to consider whether, if believed, the statements establish that the failure to appear was from "excusable neglect" (that is, an act or omission that could have been made by a reasonably prudent person under similar circumstances). If the statements, even if believed, do not meet that standard, a remand is unnecessary: The commission simply denies further hearing. If the alleged facts show excusable neglect, the commission may either remand for a hearing to test whether the facts of the failure to appear actually are as alleged or simply remand for a hearing on the merits.

In this case, the employer is contending that Mr. Reilly, because of his great pain due to his abscessed tooth was not able to think straight by April 6, 1999 and for that reason missed the hearing. However, the employer does not indicate that Mr. Reilly was not aware that a hearing was scheduled for April 6, 1999. Mr. Reilly had been aware of his oncoming developing tooth ache since Saturday, April 3, 1999. Nothing in the employer's affidavit or petition indicates that Mr. Reilly was unable to use the telephone to contact the department to request a postponement or to contact his attorney prior to the time of the hearing. Mr. Reilly was able to contact the department as early as April 5, 1999 since he was aware that his tooth had been bothering him since April 3, 1999 and he could have anticipated that he would have been unable to appear at the hearing.

In the case of Strickland v. Madison Kipp Corporation, (commission decision dated June 27, 1996) the applicant contended that she failed to appear the hearing because she had been arrested on an outstanding warrant for disorderly conduct and taken to jail on the date of the hearing and that it would have been fruitless to try to make a collect call to the department to arrange for a postponement under those circumstances. The commission acknowledged that the applicant may have been understandably disoriented while incarcerated, but nonetheless concluded that a reasonable prudent person under similar circumstances would have attempted to contact the department to arrange a postponement or call someone who could contact the department for her. The commission reasoned that it may be that the applicant's collect telephone calls would not have been accepted, however her failure to try did not constitute excusable neglect. Similarly, in our current case the employer did not establish that Mr. Reilly could not make telephone calls some time during the day on April 6, 1999 and presumably earlier on April 5, 1999. Although Mr. Reilly may have been understandably disoriented due to his abscess tooth the commission finds that a reasonably prudent person under the circumstances knowing that a hearing had been scheduled would have attempted to contact the department to arrange for a postponement.

Also, there is no explanation why the employer's attorney did not appear at the hearing or contact the department for a postponement. The employer's attorney filed an answer to the applicant's claim for unreasonable refusal to rehire in a letter dated July 7, 1998 and a copy of the hearing notice had been sent to the employer's attorney on March 2, 1999 for the hearing on April 6, 1999. Clearly, the employer's attorney was aware that the hearing had been scheduled but there is no explanation why the attorney failed to appear or did not contact the department. Under the circumstances, the commission does not find that the employer has established that he had failed to appear at the hearing due to excusable neglect. Therefore, the commission must deny the employer's request to vacate the order and remand this matter for further hearing on the merits.

The applicant appeared at the hearing and testified that following his injury on April 30, 1998 that he obtained a release to return to work on June 8, 1998 and contacted the employer's dispatcher. The applicant testified that he was not informed that there was any work available and that he continued to maintain contact with the employer on a weekly basis to see if work was available, but that he was always told that there was not work that he could do. The applicant testified that from June through September of 1998 he maintained contact with the employer two to three times per week and was always given a negative response when he asked about jobs. The applicant testified that he saw an advertisement placed by the employer on October 18, 1998 for a driver which was the type of work he had done for the employer, and he called Mr. Reilly concerning the job opening. The applicant testified that Mr. Reilly told him there were no openings and the applicant subsequently found employment with another employer. Based on the applicant's testimony and the evidence presented at the hearing, the applicant established a prima facie case that the employer unreasonably refused to rehire him. Based on the evidence presented at the hearing it was established that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3).

cc: ATTORNEY CHRIS M CLEMENS
EISENBERG WEIGEL CARLSON BLAU REITZ & CLEMENS SC

ATTORNEY AHMED J QUERESHI
CRIVELLO CARLSON MENTKOWSKI & STEEVES SC

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