Wis.LIRC ER Decision: Patek, Veronica - August 31, 1995 - Procedure -- new hearing --rehearing will be granted only on the basis of material error or law or fact, or newly discovered evidence sufficiently strong to reverse or modify the order, and which could not have previously been discovered by due diligence; party's assertion of inadequate legal representation by their counsel is not an adequate basis for setting aside an ALJ's decision or for granting rehearing

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

VERONICA PATEK, Complainant

WAUKESHA ENGINE DIVISION, DRESSER INDUSTRIES, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9433716 (formerly No. 9351914)

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter on March 31, 1995. A timely petition. for review was filed with the Equal Rights Division, which then forwarded the file to the commission on April 18, 1995.

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 conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 31, 1995
patekve . rsd : 135 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

MEMORANDUM OPINION

An administrative rehearing will be granted only on the basis of material error or law or fact, or newly discovered evidence which is sufficiently strong to reverse or modify the order, and which could not have previously been discovered by due diligence. Whipp v. De Paul Rehabilitation Hospital (LIRC 2/24/88); Bodensack v. MATC (LIRC 8/8/78). Complainant does not contend that the expert medical evidence is "newly discovered" but rather evidence that would have been presented had her original attorney properly presented her case.

Complainant's attempt to distinguish Neuberger v. Twin City Storm Sash Co. (LIRC 1/22/92), from the case immediately before the commission does not discount the fact that inadequate legal representation is not an adequate basis for setting aside an ALJ's decision or for granting rehearing. The supreme court held that it is more "equitable to allow adverse consequences to fall upon the shoulders of the party who has chosen the attorney, rather than on the adversary and other litigants who await their day in court." Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 285 (1991).

cc:
Thomas Nelson
James R. Scott

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