TIMOTHY BENDER, Applicant

COACHS FAST FOOD INC, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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.

The findings and order of the administrative law judge are affirmed. The application is dismissed without prejudice. A new application may not be filed unless it is accompanied by a new WKC-16-B medical report which supports the applicant's claim, and by the applicant's personal guarantee that he will not miss any subsequent hearing.

Dated and mailed August 3, 2006
bendeti . wsd : 185 : 8 ND § 8.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Respondents' counsel has made good arguments in support of respondents' petition and request that the administrative law judge's dismissal be modified to a dismissal with prejudice. However, the commission must weigh the fact that a dismissal with prejudice would foreclose any possibility of further claim by the applicant, against the fact that the dismissal without prejudice still requires the applicant to prove any claim he may have remaining, and only requires the respondents to defend against such claim. Respondents emphasize the fact that the applicant has failed to respond to its petition, and while this does raise further questions regarding the applicant's attention to the administrative process, it merely raises questions rather than answering them. It is not known why the applicant did not respond.

A dismissal with prejudice would leave no further recourse to this individual who did sustain a conceded work injury. The commission would be reluctant to approve such a result, absent an actual abuse of the administrative process. The applicant's behavior to date borders on constituting such abuse, but has not been so egregious as to preclude one more opportunity for him to file a new application with supporting medical evidence, that also includes his personal guarantee that he will not miss any subsequent hearing. Of course, the time limitation set forth in Wis. Stat. § 102.17(4), remains applicable.

cc: Attorney David A. Piehler

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uploaded 2006/08/15