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


BELINDA (RHONE) STRICKLAND, Applicant

MADISON KIPP CORP, Employer

SENTRY INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94073008


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 June 27, 1996
rhonebe.wsd : 101 :  0  ND  8.17

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The ALJ issued a decision dismissing the application for hearing with prejudice when the applicant failed to appear at the April 8, 1996, hearing in this case.

In her petition for commission review and supporting materials, the applicant explained that she was stopped in her motor vehicle by a Grand Chute police officer at 2:50 a.m. on April 8; that as a result of the stop the officer learned that the applicant had an outstanding warrant; that the applicant was arrested and incarcerated in the Outagamie County jail; that she was allowed to make a collect call to her son while in jail, but he was not at home; that any other call she could have made from the Outagamie County jail would have been a collect call, identifying her only as "someone in the Outagamie County jail;" and that she did not attempt to contact anyone about the hearing because no one would have accepted her collect call under these circumstances.

In response, the employer and insurer (collectively, the respondent) submit a copy of a letter from the Outagamie County sheriff's department stating that the applicant was in fact arrested on a Dane County warrant for disorderly conduct; that inmates at the Outagamie County jail are allowed liberal phone access from 8 a.m. to 10 p.m., although inmates have no immediate access to a phone and must request permission to use the telephone; and that the applicant was permitted to call her son on April 8, 1996 at 10 a.m.

Section 102.18 (1)(a), Stats., authorizes the department to issue decisions in worker's 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 one party 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). When the applicant is the non-appearing party, dismissal of the application with prejudice is an appropriate course. Auclair v. LIRC and Friendly Village, Inc., court of appeals case no. 83- 836, district III unpublished decision (May 22, 1984).

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. 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 are true, unless 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 notes that the information submitted by the respondent does not contradict the information submitted by the applicant. The applicant does not allege she was not allowed to make phone calls while in the Outagamie County jail. Rather, she claims it was futile to try to arrange a postponement by a collect telephone call.

The commission must disagree. The applicant was allowed to make telephone calls as early as 8 a.m. on April 8, 1996. Her hearing was not until 2 p.m. The commission acknowledges that the applicant may have been understandably disoriented while incarcerated. Nonetheless, it concludes that a reasonably prudent person under similar circumstances would have attempted to contact the department to arrange a postponement or called someone who could contact the department for her. It may be that her collect telephone calls would not have been accepted. However, her failure to try does not constitute "excusable neglect."

In addition, the commission notes that the applicant was arrested on an outstanding warrant. An arrest on an outstanding warrant, while perhaps not certain, is certainly foreseeable. Therefore, the commission concludes that the applicant's arrest on an outstanding warrant was not itself the result of excusable neglect, separate and apart from her failure to attempt to request a postponement upon her arrest.

cc: ATTORNEY DANIEL JARDINE
OTJEN VAN ERT STANGLE LIEB & WEIR SC


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