795 Summary of proceedings as basis for review

Despite the fact that the hearing record was flawed, with only the ALJ’s voice coming through clearly, the audible portions, plus the ALJ’s notes, constituted a sufficient record for a full and fair consideration of the issues raised in the Complainant’s petition for review, because the issues had to do mainly with the alleged conduct of the ALJ and Respondent’s counsel, and could be dealt with without reference to the testimony of witnesses. Davis v. Oxbo Int’l Corp. (LIRC, 07/31/15).

Consideration of the tapes of the hearing is discretionary with the Labor and Industry Review Commission. (Sec. LIRC 1.04, Wis. Admin. Code). Gryzwa v. Goodwill Indus. (LIRC, 09/26/95).

The fact that a portion of a tape recording of the hearing was blank had no effect on the Labor and Industry Review Commission’s ability to complete a full and fair review where the Commission had available to it the summary of proceedings prepared by the Administrative Law Judge. Popp v. Rhinelander Paper Co. (LIRC, 07/28/95).

Although the Labor and Industry Review Commission has the discretion to listen to the hearing tapes in order to verify the accuracy of an Administrative Law Judge’s summary of proceedings, it will not do so where the Complainant is, in fact, disputing the factual content of witness testimony rather the authenticity of that testimony. In this case, even if the synopsis of testimony was inaccurate with respect to certain matters, such inaccuracies would in no way affect the outcome of the Complainant’s case upon review. Therefore, LIRC deemed it unnecessary to listen to the hearing tapes. Hanson v. Exel Inns of Am. (LIRC, 08/25/94).

Where a transcript is prepared after the Administrative Law Judge’s decision has been issued, its use in reviewing the ALJ’s decision is discretionary with the Commission. LIRC has generally decided whether or not to use transcripts based on its assessment of whether they are complete and accurate. LIRC declined to rely on transcripts in this case because they were prepared from inadequate copies of the hearing tapes, with a large number of indications that parts of the testimony were omitted because they were inaudible. In this case, the Commission will rely a summary of proceedings prepared by the ALJ in lieu of the transcript. Roncaglione v. Peterson Builders (LIRC, 08/11/93).

On review, the Labor and Industry Review Commission reviewed the hearing tapes and determined that there were errors and omissions in the summary of proceedings. However, LIRC’s review of the tapes also served to provide it with a degree of familiarity with the evidence of record at least equivalent to that which a summary of proceedings is intended to provide. Forman v. Cardinal Stritch College (LIRC, 06/08/92).

The summary of proceedings prepared by the Administrative Law Judge contained several errors and omissions. However, because LIRC's review was based upon listening to the tapes of the hearing, LIRC did provide the Complainant with a full and fair review. Yuhas v. Electrolux (LIRC, 06/25/91).

Errors in the Administrative Law Judge’s summary of proceedings do not justify a reversal or rehearing where the Commission reviewed the case based on listening to the actual tapes of the hearing and thus was not affected by any errors. Martin v. Industrial Combustion Div. (LIRC, 06/04/87).

A review by LIRC based on the examiner’s summary is permissible where there was no showing that the summary misstated the testimony, where LIRC consulted with the examiner and where its findings were based on undisputed testimony. Bidlack v. LIRC (Sola-Basis Indus.) (Walworth Co. Cir. Ct., 03/25/81).

It was not reversible error for an examiner who had not held the hearing to base the decision on a review of the summary of proceedings rather than the transcript where the evidence introduced at the hearing was adequately reported in the summary. Sanchez v. LIRC (Dane County Community Action Comm.) (Dane Co. Cir. Ct., 1980).