MARK D DECKER, Applicant
 

PACE ELECTRIC INC, Employer
 

FRANKENMUTH MUTUAL
INSURANCE CO, Insurer
 

The applicant claimed a work-related back injury in 2003. He ultimately entered into a full and final compromise of the case. The compromise expressly states that the worker's compensation insurer will not be responsible for additional future expenses. The parties executed the compromise agreement in December 2006 and January 2007, and forwarded it to the department for approval by an ALJ. ALJ Walter Thurow approved the compromise by order dated January 17, 2007.

A party may seek to have a compromise reviewed by the department and possibly set aside by application filed within one year of order approving the compromise.(1) In this case, the applicant wrote to the department on July 17, 2007, "requesting that my case be reopened and settled by a judge." On August 2, 2007, ALJ Thurow sent an internal memo the "Calendaring" subunit of the Worker's Compensation Division directing it to "treat [the applicant's letter] of 7/17/07 as petition for review of compromise."

Thereafter, the applicant filed a "compromise review application" on the department's form WCK-7-B in late August 2007. A notice of application was sent to the parties by the department on September 10, 2007, to which the employer responded by letter dated September 14, 2007. In November 2007, the department sent the parties notice of a prehearing conference scheduled for December 19, 2007 on the review of compromise issue.

A few days before the prehearing conference, on December 12, 2007, the applicant sent a letter to the department indicating that he had no success finding a lawyer, and that he was "not looking for an appeal, but a clarification" of ALJ Thurow's order. Apparently, the applicant thought that under the compromise, his non-industrial insurer would pay his ongoing treatment bills and that ALJ Thurow's order would reflect this. The applicant's letter concludes:

Please check the [merits??, minutes??] of the settlement to see what I am trying to get cleared up so someone will pay my bills.

The pre-hearing conference then was held. The insurer's attorney attended the prehearing, but the applicant did not. ALJ Jones issued a decision dismissing the application "without prejudice" for failure to prosecute on December 21, 2007.

On January 16, 2008, the applicant wrote another letter to the department "to file for an appeal." However, the applicant stated also his belief his attorney did not have his best interests in mind when he settled the case

...so I would like to have it re-opened

I am faxing this letter to make sure you get it before the dead line, although I wrote this same letter last month.[(2)]

Markings on the top of the applicant's January 16, 2008 letter indicate the letter was sent by facsimile transmission on January 16, 2008. Indeed the Worker's Compensation Division's "Claim Judicial Information" record lists January 16, 2008 as the "event date" for the appeal to the commission, which the commission assumes means the division acknowledges receipt of the applicant's letter on that date.

The WC Division responded to the applicant's January 16, 2008 letter through one of its administrative law judges, Mary Lynn Endter. On January 29, 2008, ALJ Endter wrote a letter to the applicant acknowledging receipt of his earlier letters. She noted, too, that the matter had been scheduled for a prehearing on reopening the compromise in December 2007, but that the applicant did not attend. She discussed the adverse consequences that might occur if the case were reopened and concluded:

I hope that this letter has been of some help to you. But if after reading it, you still want to have your case reconsidered, the most I can offer is to have your letter of January 16, 2008 treated as a late appeal of the order dismissing your case....

The applicant responded by letter dated February 6, 2008. In his letter, he asserts that he is still incurring medical expense for his back which his non-industrial group health insurer is refusing to pay "because I was hurt at work." The applicant concludes by asking the department to pick one of the insurers (the WC insurer or his group health insurer) to pay his bills.

On April 4, 2008, the Worker's Compensation Division sent both parties a letter notifying them that it had received the applicant's "petition for review of the Administrative Law Judge's findings of fact and order," and that it was forwarding the matter to this commission.

The respondent replied by letter dated April 10, 2008. The respondent points out that ALJ Jones's December 21, 2007 dismissal order provided instructions on how to appeal, and specifically informed the applicant of the 21-day deadline for review under Wis. Stat. § 102.18(3). Because the applicant's letter of January 16, 2008 was received after the 21-day period had expired, the respondent continued, the applicant's petition should be dismissed as untimely. The respondent concluded by noting that it had responded to the merits in its letter of September 14, 2007.

The commission, however, concludes that the applicant's January 16, 2008 letter is not, or at least is not solely, a petition for commission review of ALJ Jones' "without prejudice" dismissal. Rather, the applicant's January 16, 2008 letter is a timely second request or reapplication to review the compromise.

Under the department's rules, the compromise did not become effective until ALJ Thurow approved it on January 17, 2007. See Wis. Admin. Code § DWD 80.03(2). Since Wis. Stat. § 102.16(1) allows the department to act on a request to review a compromise upon an application made within one year "from the date an award has been entered," the department received the applicant's request on the very last day in the one-year period, January 16, 2008. Stated another way, the statute allows the department to set aside a compromise more than a year after it has been entered provided that, as here, a party has filed its application for review of the compromise within a year.

The applicant's January 16, 2008 letter expresses a clear desire to have the compromise reviewed or "reopened." It also mentions that it is being faxed to meet a deadline, presumably a reference to the one-year period for review of compromise beginning in this case on January 17, 2007. Neither the statutes or administrative rules require the application or petition for reviewing a compromise be made in or on a particular form. Indeed, ALJ Thurow recognized as much when he directed the applicant's earlier July 2007 letter to be treated as a petition for review of compromise.

The commission acknowledges that the applicant failed to appear at the December 2007 pre-hearing before ALJ Jones on the original application for compromise review. But where no testimony has been taken and the statute of limitations has not run, the department's normal practice is to issue a dismissal without prejudice.(3) This allows, and in fact contemplates, refiling by the party against whom the "without prejudice" dismissal was ordered. The applicant cannot force the department to set aside the compromise and effectively reopen his case, of course, but he did have the right to reapply for review of the compromise until January 17, 2008.

Finally, the commission acknowledges that the applicant's January 16, 2008 letter--which, again, the commission treats as a petition for review of compromise under Wis. Stat. § 102.16(1)--would be untimely as a petition for review of ALJ Jones's "without prejudice" dismissal order under Wis. Stat. § 102.18(3). However, the commission's jurisdiction in this case is not based on review of that order under Wis. Stat. § 102.18(3). Rather, the commission concludes that ALJ Endter's January 29, 2008 letter was a decision denying compensation(4) that is reviewable under Wis. Stat. § 102.18(3), and that the applicant's February 6, 2008, letter is a timely petition for review of that decision.(5)

Upon review, the commission sets aside the decisional effect of ALJ Endter's letter which treats the applicant's January 16, 2008 letter as a petition for commission review under Wis. Stat. § 102.18(3). However, the commission does not read ALJ Endter's letter to address the applicant's January 16, 2008 letter insofar as it constitutes a second request or "reapplication" for review of the compromise. Accordingly, this matter shall be remanded to the Worker's Compensation Division to take further appropriate action, treating the applicant's January 16, 2008 letter as a timely request to have the compromise reviewed under Wis. Stat. § 102.16(1).

NOW, THEREFORE, the Labor and Industry Review Commission makes this

This matter is remanded to the Worker's Compensation Division for further appropriate action, treating the applicant's January 16, 2008 letter as a timely request to have the compromise reviewed under Wis. Stat. § 102.16(1).

Dated and mailed April 28, 2008
deckema . wrr : 101 : 8  ND §§ 9.2, 10.5

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Paul Riegel

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(1)( Back ) Wis. Stat. § 102.16(1) provides in part:

 Every compromise of any claim for compensation may be reviewed and set aside, modified or confirmed by the department within one year from the date the compromise is filed with the department, or from the date an award has been entered, based thereon, or the department may take that action upon application made within one year. ... The employer, insurer or dependent under s. 102.51 (5) shall have equal rights with the employee to have review of a compromise or any other stipulation of settlement. Upon petition filed with the department, the department may set aside the award or otherwise determine the rights of the parties.

(2)( Back ) The commission assumes this is a reference to the applicant's December 12, 2007 letter discussed above.

(3)( Back ) See Neal & Danas, Worker's Compensation Handbook § 8.9 (5th ed. 2007); see also Baldwin v. LIRC, 228 Wis. 2d 601, 619-20 (Ct. App. 1999) (recognizing the normal practice as stated above but holding that the department may still issue a dismissal with prejudice in other appropriate circumstances.)

(4)( Back ) Wis. Stat. § 102.18(3) permits a petition for review of "an examiner's decision awarding or denying compensation." The term "decision" itself is not defined in Wis. Stat. § 102.01. However, Wis. Stat. § 102.01(2)(dm) defines "order" to include "any decision, rule, regulation, direction, requirement or standard of the department, or any other determination arrived at or decision made by the department." The commission concludes the term "decision" as used in Wis. Stat. § 102.18(3) is broad enough to cover ALJ Endter's January 29, 2008 letter.

The applicant is currently seeking payment of his medical bills. The commission also concludes the January 29, 2008 letter would in effect finally deny the applicant's claim for medical expenses or other compensation by allowing the one year period under Wis. Stat. § 102.16(1) to expire without "reopening" or reviewing the applicant's compromise as he requested in his January 16, 2008 letter.

(5)( Back ) Alternatively, the commission has jurisdiction based on Wis. Stat. § 102.18(4)(c). With the expiration of period for reviewing of a compromise under Wis. Stat. § 102.16(1), both ALJ Jones' December 21, 2007 order and ALJ Endter's January 29, 2008 letter are final, and both fall within the period for commission action under Wis. Stat. § 102.18(4)(c).  

uploaded 2008/05/07