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The Consequences for Failing to Appear at Hearing

By Atty. Ken J. Kucinski

There are a few important procedural deadlines that need to be met in Wisconsin Worker’s Compensation cases. These include the deadline to file an Answer to a Hearing Application, the deadline to object to a Certification of Readiness, and the deadline to file certified medical records and expert reports. But as important as the above deadlines are, I don’t think anyone would argue with the fact that the most important deadline is the day on which your Hearing is set to take place. And I think most people would assume that the consequence of simply failing to show up for your own Hearing would (and should) be harsh.

In this installment of Aplin & Ringsmuth’s case law update, we take a look at two cases which were decided by the Labor and Industry Review Commission (LIRC) in the first quarter of 2019—both of which involve one of the litigant’s simply failing to show up on their Hearing date.

In the first case, Tomschin v. Alan Andrus & Sentry Select, it was the applicant who failed to show up for his Hearing. The Hearing date was scheduled for August 6, 2018. The Notice of Hearing was mailed to all parties on June 13, 2018. None of these mailings came back as “undeliverable, “return to sender,” or the like. An Administrative Law Judge (ALJ) even took the extra step of writing a letter to the applicant on June 29, 2018, advising the applicant that the Hearing would indeed go forward on August 6, 2018 unless he requested a postponement. The applicant did not request any postponement.

On August 6, 2018, the ALJ and the respondents appeared at the Hearing, ready to try the case. The applicant did not. Attempts were made, unsuccessfully, to reach the applicant by phone. The respondents moved for a dismissal with prejudice. The ALJ reserved judgment on what remedy was warranted pending an explanation from the applicant as to why he failed to appear for his own Hearing. The applicant subsequently claimed that he mistakenly believed the Hearing was set for the 9th, not the 6th. Upon receipt of this information the ALJ issued an Order which found that the applicant’s explanation for failing to appear for the Hearing was not excusable, and proceeded to dismiss the case without prejudice.

The respondents filed a timely appeal to the LIRC, arguing that the applicant’s claim should have been dismissed with prejudice. The respondents argued that LIRC precedent made clear that a non-appearing party would not be granted any further hearing unless the non-appearing party could prove the reason for the failure to appear was due to “excusable neglect”—i.e., due to a mistake which could have been made by a reasonably prudent person under similar circumstances. The respondents argued that the ALJ had found the applicant’s explanation “does not meet the excusable neglect standard,” and therefore a dismissal with prejudice was the proper remedy.

The LIRC disagreed and affirmed the ALJ’s dismissal without prejudice. LIRC explained that “in perhaps the majority of cases, the failure to establish excusable neglect will result in dismissal [with prejudice].” However, the LIRC believed it had the “discretionary authority” to weigh the facts and circumstances of each case and concluded that it could allow a non-appearing party a further hearing even if there was no “excusable neglect,” as long as the evidence didn’t show an “intent to interfere with the hearing process” or a “deliberate attempt to inconvenience or manipulate the division or the respondents.”

In the second case, Lillge v. United Anco & Indemnity Ins. Co. of N. Am., it was the respondents who failed to appear for the Hearing. However, in this case, the ALJ acknowledged that the respondents had never filed an Answer to the Hearing Application, and that several pieces of mail meant for the respondents had been returned to the State as “not deliverable.”  Nevertheless, a Hearing was subsequently scheduled for March 5, 2018. On that day, the applicant and the ALJ appeared, ready to try the case, but the respondents did not.

The ALJ admitted testimony by the applicant along with other documentary evidence at the Hearing. The ALJ then issued a decision on May 4, 2018 finding the respondents liable for various benefits.

The respondents filed a timely appeal with the LIRC, requesting the Order be set aside. They argued that they did not receive a copy of the Hearing Application or the Notice of Hearing because these mailings were misaddressed. They argued that they were never afforded proper notice, and requested the case be remanded for a new Hearing.

In its decision, the LIRC found that no evidence was presented at the Hearing to establish whether proper notice of the Hearing had been provided to respondents or not. No State representative was called to testify about how they selected the respondents’ mailing addresses. No documentary evidence was submitted to establish the respondents’ correct mailing addresses, or their last known addresses.

Given the lack of evidence regarding whether proper notice was ever provided, the LIRC remanded the case for a Hearing as to whether proper notice was provided, and whether respondents’ failure to show up for the Hearing amounted to “excusable neglect” or not. In the event that respondents prevailed on either issue, another Hearing should be scheduled to address the merits of the case.

The take-away from these two cases appears to be two-fold. First, the ALJ in the first case, where the applicant failed to appear, showed considerably more leniency than did the ALJ in the second case, where the respondents failed to appear. This is especially true when considering that the applicant in the first case admitted to actual receipt of all pertinent notices from the State, whereas the mailings to respondents in the second case came back as “not deliverable.”

The second take-away is that the State’s system for scheduling Hearing dates has room for improvement. It is inefficient and expensive to schedule Hearings without being certain that all necessary parties to the case have in fact been provided with proper notice, and will in fact be available to attend. Failures to appear drain time and resources from the ALJs, the court reporters, and the parties to the case.

And when failures to appear go by as excused despite the fault of the parties or the fault of the State, the inconvenience and expense is compounded. There are then appeals to the LIRC and, like in the Lillge case, remands for additional proceedings which cost even more time and money.

Wouldn’t it be better to organize a telephone conference with the presiding ALJ and the parties to the case, to select a mutually acceptable Hearing date and time for everyone concerned? Wouldn’t it be easier for an ALJ to dismiss a case with prejudice or to declare a default judgment for failing to appear if he or she has a record of that party agreeing to the date at a pre-hearing telephone conference?

I certainly do not claim to have the perfect answer to the scheduling problem, but I think it is an issue worth some consideration and debate, in the hopes of reducing the possibility of having to going thru the time and expense required to prepare to try a case, only to learn when you walk in the door that the other litigant is not there.