DARRIN STEVENS, Applicant

MARVS MOBIL SERVICE, Employer

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.

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

Dated and mailed March 23, 2001
steveda . wsd : 175 : 8  ND § 7.28   § 8.18   § 8.19

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employer contends in his petition for commission review that the administrative law judge erred in determining that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3). The employer requests in its petition for commission review that the interlocutory order be reversed and a new hearing scheduled because the employer's owner had both written the court and the attorney for the applicant indicating the owner had business out of town on the date of the hearing and would be unable to attend. The employer's owner, Ms. Bednar, also states that she had not received a letter from the court about the hearing but only from the applicant's attorney. However, it appears from the owner's letter that she was certainly aware of the hearing dates and she admits in her letter that she had written the court and the applicant's attorney indicating that she had business out of town and would be unable to attend the hearing. Therefore, it appears that the employer's owner was aware of the hearing but choose not to attend. There is no documentary evidence to indicate that the employer's owner ever contacted the department concerning her inability to attend the hearing or requesting a postponement in this matter.

The employer's owner had indicated in her answer to the application for hearing, dated December 29, 1999, that the employer was no longer in business and denied that the applicant had a basis for a claim. However, the employer's owner requested on the back of the answer that any further correspondence should be sent to her address at P. O. Box 256, Solon Springs, Wisconsin. The department mailed a copy of the hearing notice, dated August 21, 2000, to the employer at the P. O. Box in Solon Springs, Wisconsin that she had requested. Therefore, it appears that the department sent the hearing notice to the address requested by the employer's owner in its answer. The department acted appropriately in sending the hearing notice to the correct address.

The commission does not find that the employer has presented a good cause for failing to appear at the hearing or to order a new hearing in this matter. The employer's owner was sent a copy of the hearing notice in a timely manner to the address that she requested, and she choose not to attend the hearing to attend to other matters. There is nothing to indicate that the employers owner actually requested a postponement or informed the department of any conflict in scheduling. The applicant testified at the hearing that he was injured while working for the employer on February 18, 1998, and was released to return to work on February 23, 1998, but was informed that he was no longer an employee of the business and was given no reason for his termination. The administrative law judge appropriately found that the applicant had established a prima facie case for unreasonable refusal to rehire and awarded the applicant a penalty of $8,034.00 against the employer pursuant to Wis. Stat. § 102.35(3). The commission agrees with the administrative law judge's findings based on the evidence presented at the hearing, and finds that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3).

cc: Attorney Boad S. Swanson

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