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


JOSEPH E JENNA, Applicant

BILL DENTINGER INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 93067246


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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, 1995
ND 7.26   8.17

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

MEMORANDUM OPINION

The employer failed to appear at the hearing in this unreasonable refusal to rehire case. Thus, the first issue in this case is whether the employer be allowed another hearing to present its side of the case? A second issue arises if the commission resolves the first issue against the applicant: does the record as it stands support the ALJ's "default" finding of an unreasonable refusal to rehire?

1. Failure to appear.

The employer offers an affidavit containing statements from its president to explain its failure to appear. The president states that, on October 17, 1994, he received the notice of the hearing in this matter scheduled for December 8, 1994, at 8:00 a.m. He marked the hearing date on his calendar. He wished to represent the employer himself, which of course was his right, and did not contact a lawyer about the matter.

On October 19, the president sent a letter to the worker's compensation division asking if it was possible to reschedule the hearing for another day. However, the letter requesting postponement was mis-addressed: it was sent to "201 East Wisconsin Avenue," not the department's correct address of "201 East Washington Avenue."

In addition, the president did not send copies of the postponement request to the applicant or the applicant's attorney. This is significant because the "hearing information" sent with a hearing notice requires the postponement request be sent to all other parties. The president (in his supplemental affidavit) admits that he erroneously failed to notify the applicant of the employer's postponement request.

The president never heard back from the department about his postponement request. He forgot about the matter until the morning of December 8, 1994 when he went to his office and checked his calendar. He then called the hearing office and was told the hearing went on his absence. He then wrote a letter to presiding administrative law judge Randall Kaiser and workers compensation division counsel Richard Smith stating that the president did not receive a response to his postponement request, and that the employer still wanted to be heard.

ALJ Kaiser responded in a memorandum opinion attached to his January 5, 1995 decision in this case. He indicated that the file contained no copy of the president's October 19 letter , nor did the file indicate that the department had ever responded to the letter or rescheduled or postponed the hearing. ALJ Kaiser concluded that the postponement request could not be considered timely or reasonable. He therefore issued his decision on the merits of the refusal to rehire issue, based on the facts at the December 8 hearing at which the employer did not appear.

Section 102.18 (1)(a), Stats., authorizes the department to issue decisions in workers compensation cases by default. The court of appeals has affirmed the practice of LIRC and DILHR 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 case no. 84-1746, district IV 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 case no. 83-836, district III unpublished decision (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 Ins. Co., 109 Wis. 2d 451, 468 (1982). Excusable neglect is not the same as neglect, carelessness or inattentiveness. Id.

For the purposes of determining whether to remand for hearing on a failure to appear issue, the commission assumes that statements offered by the non-appearing party in an affidavit such as the one submitted by the employer's president are true, unless the something in the record makes them appear inherently incredible. The next step is to consider whether, if believed, those 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, 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 test whether the facts actually are as alleged or simply remand for testimony on the merits.

In this case, the commission finds nothing in the record making the affidavit of the employer's president inherently incredible. It therefore accepts the facts as he alleges for the purposes of this decision. Nonetheless, the fact remains that the employer's president's written postponement request was sent to the wrong address. This makes it seem much more likely that the department never received the document. In addition to incorrectly addressing the postponement request, the president did not send a copy to the applicant. Copies to opposing parties are not a mere lawyer's courtesy; the "hearing information" notice sent to the employer specifically stated other parties were to be provided copies. Thus, the president's postponement request failed to comply with two important requirements.

Beyond that, the employer's president failed to follow up on its postponement request when he did not receive a response from the department. By failing to follow up, or take steps to remind himself of the postponement request, the employer's president in effect simply assumed that requesting a postponement meant the employer did not have to appear unless it was told otherwise. In this case, the failure of the employer's president to follow up, when coupled with mis-addressing the postponement request and failing to send it to the other party, cannot be considered "excusable neglect" under the standard set out above. Thus, ALJ Kaiser correctly denied the employer's request for further hearing.

2. Refusal to rehire on record from December 1994 hearing.

The second issue is whether the record from the December 8, 1994 hearing establishes an unreasonable refusal to rehire. The applicant testified that he was at work on October 28, 1993. He received temporary total disability benefits for a few weeks, and then was released to work on January 17, 1994. On January 14, 1994, he went to the employer, turned in his medical release, and asked about returning to work. He was told to call back. The applicant called the employer every other day for two weeks, but no one would return his calls. He finally contacted his former foreman at home. The foreman told him the employer did not plan to return the applicant to work. The applicant concluded by testifying that he later learned work was available.

In an unreasonable refusal to rehire case, the applicant has the burden of proving he was an employe with a compensable injury who was denied rehire or discharged. The burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. The reasonable cause may either be that the work injury prevents the applicant from doing available work, or that the discharge was for a reason unrelated to the injury (such as misconduct, poor performance or a work slowdown. ) Obviously, an employer who fails to appear at hearing will have difficulty meeting that burden.

In this case, the applicant has met his burden of proving that he was an employe with a compensable injury who was denied rehire. The employer, because it did not appear, did not establish a reasonable cause for the failure to rehire. The commission therefore affirms ALJ Kaiser's decision in total.

cc: ATTORNEY JEROME DUCKLER
PODELL UGENT & CROSS SC


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