Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance
Subject: Margaret Bach v. Labor and Industry Review Commission, Aaron Bach c/o ANEW Fiscal Agent, Easter Seals, Life Navigators and Milwaukee County,
Case 13-CV-2071 (Wis. Cir. Ct., Milwaukee Co., October 21, 2013)
Digest Codes: PC 712.2 - Hearing, Failure to Appear - Hearing notice received but mislaid, mis-marked calendar
After filing appeals from two determinations, Bach received notices indicating among other things that her hearings would begin at 8:00 a.m. For some reason she wrote 10:30 a.m. on her calendar for that day instead of 8:00 a.m. She then misplaced the notices. She discovered she had misplaced the notices when, the night before the hearing, she had doubts about the correctness of the 10:30 a.m. time, and went to check the notices, and realized she could not find them. She then made an assumption that the hearings would not start before 8:30 a.m. and so decided to leave at 7:30 a.m. to allow enough time. The next morning, she stopped on the way to drop off her mother (whose car she was borrowing) and also drove in on Wisconsin Avenue because of traffic on the freeway. She did not arrive at the hearing until 8:17 a.m., by which time her appeals had been dismissed. On her subsequent appeals, the Appeal Tribunal found, and LIRC subsequently agreed, that Bach did not establish good cause for her late appearance.
LIRC’s interpretation and application of the statute applicable to failures to appear at hearings is entitled to great weight deference and will therefore be upheld as long as it is reasonable. While Bach argues that her conduct meets the standard for excusable neglect, under the great weight deference the issue is simply whether LIRC’s conclusion was reasonable, even if a different interpretation was more reasonable, so the argument that the facts would support a finding of excusable neglect is unavailing.
LIRC’s determination that Bach’s failure to appear was without good cause is reasonable in light of the findings. Bach recorded the wrong time in her calendar, misplaced her hearing notices, did not think to double check the time of the hearing until the night before the hearing date, and arrived 17 minutes late for her hearing. Bach does not dispute that she received the notices nor does she dispute that she misplaced those notices. Bach further admits that she did not know that her hearing was at 8:00 a.m. Bach also acknowledges that she realized she may have recorded the wrong time for her hearing, but then was unable to locate her hearing notices to confirm the time. Additionally, since two determinations were at issue, Bach received two hearing notices; the fact that she recorded the wrong time after seeing two hearing notices as well as misplaced both notices further supports LIRC’s conclusion that her failure to appear was without good cause. Additionally, this court will not disturb the finding that Bach’s testimony that she intended to arrive hours early for her hearing was not credible, since weight and credibility of evidence are issues for the agency to decide.
Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.
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