DAVID BLOOM, Applicant

ST JOSEPHS COMMUNITY HOSPITAL, Employer

EMPLOYERS INSURANCE CO OF WAUSAU, Insurer
c/o WAUSAU INSURANCE COMPANIES

The insurer, Employers Insurance of Wausau, filed a petition for commission alleging error in the department's default order dated February 21, 2007. After reviewing the entire file in this matter the commission hereby sets aside the department's default order and remands to the department for further proceedings and decision concerning whether the employer or its insurer failed to take the appropriate actions resulting in inexcusable delay in payment pursuant to Wis. Stat. § 102.18(1)(a).

The applicant sustained a compensable work injury on February 3, 2006. The first payment of compensation was not made until September 8, 2006. The department sent a letter to the employer on September 8, 2006 notifying the employer that payment had been delayed due to its failure to promptly report the injury and disability to its insurance carrier. The letter requested the employer respond within 30 days regarding the reason for the delay in payment, and if a response was not received, a default order could be issued for unreasonable delay in payment.

The employer did not respond to the letter from the department. On February 21, 2007 the department issued an order which found the first payment of compensation was not made until September 8, 2006, and the insurance carrier failed to make payment in a timely manner after request by the department to explain the delay or pay the penalty. The department's order assessed the insurer with a penalty for inexcusable delay in payment of $53.78.

The insurer states in its petition for commission review the applicant's claim was reported timely to the insurer, however, the employer failed to make the insurer aware of any lost time due to the work injury until August 10, 2006. The insurer states that it then investigated the claim and the lost time, and issued a payment on September 8, 2006. The insurer states it does not feel it should be responsible to pay a penalty since the employer was late in reporting the lost time to the insurer.

The commission hereby sets aside the department's order and remands to the department for further proceedings. It does not appear the employer's insurer was given proper notice of the possible liability for a default order for a penalty pursuant to Wis. Stat. § 102.22. The department's letter on September 8, 2006 informs the employer that it might be subject to penalty for its failure to promptly report the injury and disability to its insurance carrier. Nothing in the letter indicates the insurer was notified that it was late in making payment.

Further, it appears the department initially believed that the employer was the party responsible for the delay in payment according to its letter on September 8, 2006. The insurer states in its petition for commission review that although the injury was timely reported the employer did not make it aware of any lost time due to the work injury until five months later, on August 10, 2006, at which time the insurer investigated the claim and made payment. Based on the information presented, the commission finds that entry of a default order was not appropriate in this matter. The employer did not respond to the department's initial letter and it is not clear from the information exactly which party is responsible for the delay in payment. Therefore the commission sets aside the department's default order and remands to the department for further proceedings and order concerning which party was responsible for the delay in payment in this matter.

Dated and mailed July 26, 2007
bloomda . wrr : 175 : 9  ND § 7.24

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The insurer indicated in a letter dated May 31, 2007 to the commission that the employer, Synergyhealth, has already paid the penalty fee for the late first payment.

 

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uploaded 2007/07/30