JOHN NERAD, Applicant

STATEWIDE HEATING & COOLING, Employer

WEST BEND MUTUAL INS CO, Insurer

This case involves the issue of payment of increased compensation under Wis. Stat. § 102.57 arising from an allegation the employer violated a safety code regarding scaffolding. On August 6, 2008, the Department of Workforce Development, Worker's Compensation Division, acting under Wis. Stat. § 102.17(2), notified the employer, the insurer(1), and the applicant(2) of a September 18, 2008 hearing on the increased compensation issue.

The applicant appeared pro se at the September 18, 2008 hearing, but the employer failed to appear. The ALJ proceeded with the hearing, took evidence from the applicant, and subsequently awarded the payment of increased compensation. The employer then filed a timely petition for review with the commission. In his petition, the employer's president states he did not "receive proper notice" of the September 18, 2008 hearing and he requests a supplemental hearing be held.

No specific statutory or rule provisions govern a failure to appear in workers compensation cases. Gram Stolpa v. Seljan Tool Company, WC Claim No. 97011508 (LIRC, February 28, 1998). Regarding failures to appear at hearing, the commission has previously held:

"In general, a nonappearing party may be entitled to relief in the form of further hearing if his or her failure to appear was a result of excusable neglect. Auclair v. LIRC and Friendly Village, Inc, WC Case No. 83-836 (Wis. Ct. App., May 22, 1984). Excusable neglect is that neglect that might have been the act of a reasonably prudent person under similar circumstances. Auclair, slip opinion at 3, and Hedtcke v. Sentry Insurance Company, 109 Wis. 2d 451, 468 (1982). Excusable neglect is not the same as neglect, carelessness or inattentiveness.

"For the purposes of determining whether to remand for hearing on the failure to appear issue the commission follows a procedure similar to that followed when acting on late petitions. First, the commission assumes that statements offered by the non-appearing party to explain his nonappearance are true, unless something in the record makes the statements appear inherently incredible. The next step is to consider whether, if believed, those statements establish that the failure to appear was from excusable neglect. If the statements, even if believed, do not meet that standard, remand is unnecessary: the commission simply denies further hearing. If the alleged facts do show excusable neglect, the commission may either remand for a hearing to attest whether the facts actually are as alleged or simply remand for testimony on the merits."

VanVleet v. Transportation Unlimited, WC Case No. Claim No. 2001-020854 (LIRC, April 23, 2003). See also: Gestrich v. Dr. Detail, WC Claim No. 1999-034612 (LIRC, January 24, 2000) and Corey French v. Western Temporary Services, WC claim no. 94041080 (LIRC, September 30, 1996).

The petition filed by the employer's president alleges that the employer did not receive notice of the hearing. Failure of notice in this case is not inherently    incredible,(3) and if true would establish excusable neglect regarding the employer's failure to appear. However, a hearing is required to assess the veracity of the statements of the employer's president. Consequently, the commission shall remand this case for further hearing and decision before an administrative law judge on the procedural issue (the employer's failure to appear at hearing), and provisionally on the merits (the safety violation issue).

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

The decision of the administrative law judge is set aside. This matter is remanded for further hearing and decision consistent with this decision.

Dated and mailed December 18, 2008
neradjo . wpr : 101 : 6 ND § 8.9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

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(1)( Back ) Under Wis. Stat. § 102.62, the employer is primarily liable and an insurer is secondarily liable for a penalty claim under Wis. Stat. § 102.57.

(2)( Back ) Although the employee, Mr. Nerad, technically did not file an application, this decision, like the ALJ's, refers to him as the "applicant."

(3)( Back ) The commission generally finds the bare assertion of a repeated failure of mail delivery, without explanation, to be incredible. See Podgorski v. ABB Paint Finishing, WC Claim No. 95035783 (LIRC, August 29, 1996) aff'd sub nom. ABB Paint Finishing v. LIRC, Case No. 97-1922 (Wis. Ct. App., January 6, 1998); and Wayne Kutay v. James Kramer, WC Claim No. 97018527 (June 30, 1998), aff'd sub nom Kramer v. LIRC, Case No. 99-908 (Wis. Ct. App., November 9, 1999). The commission's policy ties in with the established presumption that mailing a letter will result in delivery and receipt. State ex rel. Flores v. State, 183 Wis. 2d 587, 612 (1994). This case, at least at this point, does not involve an assertion of repeated failure of mail delivery.

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