MICHAEL VANVLEET , Applicant

TRANSPORTATION UNLIMITED, Employer

LUMBERMENS UNDERWRITING ALLIANCE US

Administrative law judge (ALJ) Sherman C. Mitchell of the Worker's Compensation Division of the Department of Workforce Development (the department) 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 sets aside the ALJ's Findings of Fact and Order and substitutes the following therefor:

The applicant filed an application for hearing claiming that the employer unreasonably refused to rehire him and seeking payment under Wis. Stat. § 102.35. On June 4, 2002, the department mailed a notice of hearing to the applicant, his attorney, and the employer. The notice informed the parties that the hearing on the issue of an unreasonable refusal to rehire would be held on July 29, 2002.

However, the employer failed to appear at the July 29, 2002 hearing before ALJ Mitchell. Consequently, ALJ Mitchell issued a "default" order in the applicant's favor, or more precisely issued a decision based in favor of the applicant on the applicant's testimony only.

Upon receiving ALJ Mitchell's decision, the employer filed a timely petition for commission review claiming it never received notice of the hearing, though admitting it had received the ALJ's decision. In response, the applicant points out that the hearing notice itself indicates a copy was mailed to the employer, and that the department's records indicate it was not returned to sender. The applicant points out, too, that the department sent out two letters to the employer, a form letter and a follow-up letter from ALJ Joseph Schaeve. ALJ Schaeve's letter (exhibit 1) advises the employer of the applicant's claim, informs the employer of its duty to defend itself, and inquires whether the employer's address was correct and whether it intended to retain an attorney to represent it.

As noted above, Wis. Stat. 102.18 (1)(a), while stating that all parties should be afforded the opportunity for a full and fair hearing after reasonable notice, provides that disposition of an application may be made 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, Case No. 84-1746 (Wis. Ct. App. Oct. 24, 1985).

With respect to failures to appear at a hearing, the commission has previously held:

"In general, a nonappearing party may be entitled to relief in the form of further hearing if his or her failure to appear was a result of excusable neglect. Auclair v. LIRC and Friendly Village, Inc, WC Case No. 83-836 (Wis. Ct. App., May 22, 1984). Excusable neglect is that neglect that might have been the act of a reasonably 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 the failure to appear issue the commission follows a procedure similar to that followed when acting on late petitions. First, the commission assumes that statements offered by the non-appearing party to explain his nonappearance are true, unless something in the record makes the statements appear inherently incredible. The next step is to consider whether, if believed, those statements establish that the failure to appear was from excusable neglect. If the statements, even if believed, do not meet that standard, remand is unnecessary: the commission simply denies further hearing. If the alleged facts do show excusable neglect, the commission may either remand for a hearing to attest whether the facts actually are as alleged or simply remand for testimony on the merits."

Angela M. Brinkley v. Stat Temporary Services, WC Claim No. 2000-028860 (LIRC, December 18, 2001) (applicant's failure to appear) and Gestrich v. Dr. Detail, WC Claim No. 1999-034612 (LIRC, January 24, 2000) (respondent's failure to appear.)

Applying this standard, the commission concludes that the employer has shown probable good cause for its failure to appear, and that a hearing is warranted to allow the employer to prove its claim that it did not receive the hearing notice. The commission appreciates that the employer did not file an answer to the application and failed to respond to ALJ Schaeve's letter. However, these factors do not make its asserted non-receipt of the hearing notice inherently incredible. Rather, they should be weighed with the testimony and evidence offered by the employer on remand, in judging the credibility of the employer's assertion of non-receipt.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The administrative law judge's findings and order are set aside. This matter is remanded to the department for hearing and decision on whether the employer had actual good cause for its failure to appear at the July 29, 2002 hearing before ALJ Mitchell and, if appropriate, on the merits of the case. If actual good cause is not shown, the presiding ALJ shall reinstate ALJ Mitchell's order. If actual good cause is shown, the presiding ALJ shall issue a new decision on the applicant's claim under Wis. Stat. § 102.35(3).

Dated and mailed April 23, 2003
vanvlmi . wpr : 101 : 8   ND § 8.18

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

cc: 
Attorney Jack P. Cerone
Attorney Walter W. Stern

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