STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SEAN KNOX (DEC'D), Employee

DAVE ADAMS, Employer

TRI STATE INS CO OF MN, Insurer, Reverse-Applicant

WORKER'S COMPENSATION DECISION
Claim No. 2004-042423


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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed May 28, 2010
knoxse . wsd : 101 : 1 ND 8.7, 8.9 8.36   

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The ALJ's decision thoroughly sets out the procedural facts and posture in the case. The commission concludes he properly dismissed the reverse application.

An order issued by ALJ Janine Smiley on March 30, 2006 (which amended her earlier, substantially similar decision dated February 10, 2006) found Mr. Knox suffered a compensable injury in the course of employment. Since neither of ALJ Smiley's orders were timely appealed, her March 30, 2006 order is final on the issue of whether Mr. Knox sustained a compensable injury arising out of his employment on November 12, 2004. Like ALJ Ezalarab, the commission concludes it has no authority to disturb the findings of fact and conclusions of law in ALJ Smiley's March 30, 2006 order.

As ALJ Ezalarab noted, on March 29, 2006, the Honorable Mark A. Mangerson issued his order staying the circuit court proceedings until the Worker's Compensation Division decided the issue of whether Mr. Knox was in the course of employment when injured. Pursuant to the court's order, the worker's compensation insurer filed a "reverse application" with the department on June 21, 2006. However, ALJ Smiley's amended order, in fact, decided precisely the issue mentioned in Judge Mangerson's order. Judge Mangerson's order did not reverse ALJ Smiley's decision or direct an appeal to the commission. Nor can the reverse application be viewed as a timely appeal of either of ALJ's Smiley's original or amended order. Mr. Knox's parents were "a party in interest" to ALJ Smiley's orders. The fact of Judge Mangerson's order did not nullify ALJ Smiley's amended order, nor did it make the filing of a timely appeal beyond the control of Mr. Knox's parents. See Wis. Stat. § 102.18(3)(d).

Nor may Judge Mangerson's order or the reverse application serve as a vehicle for setting aside ALJ Smiley's amended order under Wis. Stat. 102.18(4)(c).(1) Neither Judge Mangerson's order nor the reverse application mentions ALJ Smiley's decision or demands that it be set aside. Neither document was addressed to the commission, the agency that has the authority to act under Wis. Stat. § 102.18(4)(c). Further, while the statute permits the commission to set aside certain decisions within one year of issuance, the time for doing that is long past.

The fact that ALJ Smiley issued an interlocutory order also does not aid the case of Mr. Knox's parents. As the commission has recently explained:

...When the department or commission plainly decides an issue on a final basis, even when the decision is interlocutory with respect to other issues, the courts have always recognized that after the appeal period expires the issue decided on a final basis cannot be relitigated. For example, see Kwaterski v. LIRC, 158 Wis. 2d 112, 117-118, 462 N.W.2d 534 (Ct. App. 1990); Borum v. Industrial Comm., 13 Wis. 2d 570, 573, 108 N.W.2d 918 (1961).

Turner v. Forester Enterprises, WC claim no. 2001-009222 (LIRC, January 27, 2009). A compensable injury in the course of employment is a necessary precondition to the award made by ALJ Smiley. Her resolution of that issue was meant to be final.

Nor does the fact that department took up the increased compensation issue on its own without an application from Mr. Knox's parents, undercut the viability of ALJ Smiley's order. The department may act on its own without hearing application. See Wis. Stat. § 102.17 (2); Valentine v. Industrial Commission, 246 Wis. 297, 300-01 (1944). See also 102.08. In such cases, the department can issue decisions without hearing in the event of default. Wis. Stat. § 102.18(1)(a); Trixie Melin v. Gregory & Cook Construction, Inc., WC Claim no. 2000-016600 (LIRC, April 28, 2005).


cc: Abby Butler
Attorney Andrew Smith
Attorney Duane Harlow
Attorney Jeffrey Strande


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Footnotes:

(1)( Back ) 102.18(4)(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and, after further consideration, do any of the following:

1. Affirm, reverse or modify, in whole or in part, the order or award.
2. Reinstate the previous order or award.
3. Remand the case to the department for further proceedings.

 


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