LYNDA TUCKER, Applicant
SINY CORP, Employer
UNITED WISCONSIN, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 2, 2009. Siny Corporation and United Wisconsin (respondents) submitted an answer to the petition and briefs were submitted by the parties. The application claimed penalties for bad faith pursuant to Wis. Stat. § 102.18(1)(bp), and for inexcusable delay pursuant to Wis. Stat. § 102.22(1). Both respondents were named in the application.
The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Order, except as herewith modified. The commission makes the following:
Prior department and commission orders resolved that the applicant sustained a compensable injury to her right knee on January 11, 2002. The applicant alleges bad faith and/or inexcusable delay for: (1) temporary partial disability in the amount of $1,294.90, that was not timely paid for the disability period between February 4, 2007 and August 11, 2007 (the applicant asserted that the amount not timely paid was $1,743.71); (2) underpaid temporary total disability in the amount of $650.26, for the disability period between August 12, 2007 and November 11, 2007; and (3) failure to timely pay $1,176.58 in medical mileage and meal expense.
The administrative law judge dismissed the claims, relying in particular on the fact that from February 4, 2007 through August 11, 2007, respondents paid the applicant and her attorney compensation and fees in the total amount of $5,460.69, representing permanent partial disability payments. The permanent partial disability payments were premature and thus paid under mistake of fact, because the applicant had not reached her healing plateau when those payments were made. Accordingly, even accepting the applicant's version of the amounts due for the three categories listed above (a total of $3,570.55), as of November 11, 2007, the applicant had still received substantially more in compensation payments from the respondents than was due to her by that date ($5,460.69 - $3,570.55 = $1,890.14 overpaid). Additionally, respondents ultimately did pay the applicant the temporary partial and temporary total disability, together with medical expense, at the end of November or early December of 2007. There is no indication that the applicant paid back the permanent partial disability received. Therefore, at all times relevant to her claim, the applicant was in receipt of substantially more in payment of compensation than she was actually due.
The applicant argued that even though she received a net overpayment of compensation, because the respondents allegedly had no reasonable basis for failing to timely make the temporary disability and medical expense payments, bad faith and/or inexcusable delay penalties should still apply.
The commission reserves the right to examine the facts and circumstances of each case in which bad faith is claimed, and to exercise its statutory discretion to determine whether or not a penalty within the statutory limit is appropriate. Bad faith generally will not be found when the injured worker has been timely paid all the compensation due him/her, even if the payments made were mistakenly attributed to a form of compensation not yet due, or not due at all under chapter 102 of the statutes. This is true even though, as in the applicant's case, there may have been a lack of a reasonable basis for delaying payment of the proper type of compensation, but no failure to make actual "payment" of the amounts due.(1) Had the insurer at any point fallen behind in payment of amounts due, or had the applicant returned the prematurely-paid permanent partial disability and at the same time requested payment of her temporary disability and medical mileage/meal expense, this would have been a different case. However, considering the actual circumstances of the matter, the commission exercises its discretion not to assess any penalty for bad faith.
The penalty for delayed payments, other than first payments not applicable to the applicant's claim, is also a discretionary penalty.(2) The same analysis set forth above regarding the applicant's claim for bad faith is applicable to her claim for inexcusable delay. There was never any delay in actual receipt of payments due, and therefore the commission will not assess a penalty for inexcusable delay.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The application for penalties under Wis. Stat. § 102.18(1)(bp), and Wis. Stat. § 102.22(1), is dismissed. This order addresses only the application for penalties as noted above. Any other unresolved issues related to the work injury of January 11, 2002, are not affected by this order.
Dated and mailed September 8, 2009
tuckely : 185 : 5 ND §§ 7.22, 7.24
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Michele Peters
Attorney Linda Kiemele
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