VANESSA D ALFORD, Applicant
STRATTEC SECURITY CORP, Employer
WAUSAU UNDERWRITERS INS CO, Insurer
Procedural History
The applicant originally filed an application for a repetitive right hand injury which was amended to include a right shoulder injury, using an October 5, 2005 date of injury.
On March 27, 2007, a hearing before Administrative Law Judge (ALJ) Krueger was held with the applicant represented by Attorney Domer and the respondent represented by Attorney Van Horn. The applicant was seeking medical expenses, primary compensation for two periods of TTD and PPD on wrist and shoulder, along with vocational rehabilitation.
On April 5, 2007, the ALJ issued a decision dismissing the application for both the right shoulder and right wrist.
The matter was petitioned for commission review and on February 19, 2008, the commission issued a decision, affirming the dismissal as it related to the shoulder but finding causation and compensable injury to the right wrist. The decision specifically set forth a TTD payment, a PPD payment, attorney's fee and costs, and some medical expenses (Dr. Gnadt). The commission directed the partied to "try to reach an agreement between themselves as to the payment of the remaining bills, including prescription expense and medical mileage, listed in Exhibit E."
On May 22, 2008, ALJ Minix approved a compromise reached by the parties on April 29, 2008. Based upon the compromise, the ALJ ordered that within 21 days, the respondent (and insurance carrier) were to pay the applicant the sum of $16,000 with $4,000 to the attorney as fees. The terms of the compromise itself indicate that it is a "full and final settlement of any and all liability" and the payment of the $20,000 is in addition to the payments ordered by LIRC in its February 19, 2008 decision.
On February 18, 2009, the applicant submitted a letter seeking to "reopen" this case. She argued that the employer did not pay what it should; the training money was not sufficient, her hand and medicine issues were still not resolved and, finally, the employer did not return her to work, she could not retire and she was facing financial difficulties.
A hearing was scheduled for June 24, 2009 before ALJ Kaiser but was postponed after the applicant indicated that she was unable to appear for health reasons. The Prehearing Conference Report notes that the next prehearing should not be set before October 2009.
A second hearing was scheduled for October 6, 2009 but was postponed. File notes reflect that the applicant spoke with ALJ Mitchell indicating that she was busy moving her fiances' items and he had cancer. She indicated that she was not prepared. The applicant opted for the file to be placed in "non ready" status with a 90 day follow-up. The note indicated that the applicant would contact WCD when ready for pretrial.
On January 8, 2010, applicant's Attorney Domer sent a letter to respondent's Attorney Van Horn indicating that a provider (for wrist only) had not been paid and requesting that the respondent send payment of $775.67 pursuant to the LIRC order ASAP.
On March 16, 2010, Attorney Van Horn sent a letter confirming payment of the $775.67.
A file note also dated March 16, 2010 on Attorney Domer's letter indicates that he and Attorney Horn were contacted by ALJ Mitchell in a phone conference, verifying that the bill had been paid. Attorney Domer was unaware of the applicant's request for review of compromise agreement and indicated that he would not handle the matter. ALJ Mitchell directed the matter to be held in "Not Ready" status with a 90-day follow-up.
Next, a file note dated March 19, 2010, directs the WC office to schedule a prehearing in Milwaukee in due course.
A third hearing was scheduled for May 20, 2010 but was postponed by the employee, indicating that she did not request a prehearing but was still contending that not all of her medical bills had been paid. The Prehearing Conference Report completed by ALJ Mitchell indicating the matter should be held in "not ready" status and should not be set for pretrial without a specific request from the applicant or her attorney.(1)
Another hearing file note dated August 26, 2010, from ALJ Mitchell, indicates that the matter should be placed in another 90 day follow-up.
Another hearing file note dated October 27, 2010, from ALJ Mitchell, indicates that the matter should be placed in a 180 day follow-up or "current procedure."
On January 12, 2011, respondent's Attorney Van Horn requested that the applicant's request to reopen the compromise be dismissed based upon her inaction.
On January 25, 2011, a notice was mailed for a March 23, 2011 prehearing. The notice was sent to the applicant's address of record, a post office box. There is nothing to reflect it was returned as undeliverable.
The applicant failed to appear at the prehearing and on March 28, 2011, ALJ Martin issued the decision, currently petitioned, that the application was "dismissed without prejudice" based upon the applicant's failure to appear. However, Wis. Stat. § 102.16(1) limits the authority of the department and the commission to set aside a compromise "or otherwise determine the rights of the parties" for up to one year after the compromise agreement is entered into. Thus, while the dismissal claimed to be without prejudice, it actually was a dismissal with prejudice as it dismissed her application requesting review of the compromise; a new application to review the compromise would be after the expiration of the one year period.
On April 18, 2011, the applicant hand delivered a letter petitioning for commission review of the dismissal, indicating that she never received the pre-hearing notice.
The respondent initially answered that the petition for review should be denied because the ALJ's order was not appealable. Approximately one week later, the respondent requested a briefing schedule. Only the respondent filed a brief. In its brief, the respondent acknowledged that the dismissal was with prejudice but argued that the dismissal was an appropriate use of discretion given the applicant's "repeated and flagrant disregard of the Department's procedures" and her "failure to prosecute her claim over the past two years."
Failure to Appear Issue
Wis. Stat. § 102.18(1)(a) provides,
All parties shall be afforded opportunity for a full, fair, public hearing after reasonable notice, but disposition of application may be made by a compromise, stipulation, agreement, or default without hearing.
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 Feb. 28, 1998). However, 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 461, 468 (1982). Excusable neglect is not the same as neglect, carelessness or inattentiveness. Hedtcke v. Sentry Insurance Company, 109 Wis. 2d 461, 468 (1982).
In deciding whether to remand, the commission assumes that statements offered by the non-appearing party to explain the nonappearance are true, and if the statements establish that the failure to appear was from 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. See Angela M. Brinkley v. Stat Temporary Services, WC Claim No. 2000-028860 (LIRC Dec. 18, 2001) and Gestrich v. Dr. Detail, WC Claim No. 1999-034612 (LIRC Jan. 24, 2000).
The commission has found statements regarding receipt to be inherently incredible based upon something in the record. See, Smith v. Fabco Equipment Inc., WC Claim No. 2000-055803 (LIRC Dec. 19, 2001). In Smith, the commission did not credit claim that employer and insurer did not receive an application or any other notice, where the materials were mailed to the correct address, none of the materials sent to the employer and insurer were returned to the department and the employer and insurer in the initial failure to appear brief only pointed to defects in the dates of injury not an allegation of nonreceipt.
On the other hand, in Nerad v. Statwide Heating & Cooling and West Bend Mutual Ins. Co., WC Claim No. 2006-041771 (LIRC Dec. 18, 2008) the employer's president failed to appear for a hearing explaining that he had not received proper notice. In contrast to cases in which repeated mail failures were alleged, the commission cited the excusable neglect standard and explained that the employer's claim was not inherently incredible. As a result, the commission set aside the ALJ's dismissal and remanded the matter for a hearing on the procedural issue and provisionally the merits to assess the veracity of the president's statements.
In the compromise setting, the commission modified a dismissal of a request to reopen a compromise to a dismissal "with prejudice" where the time limit for reopening the compromise expired and where the applicant repeatedly failed to provide documentation supporting her request to reopen the compromise. See Moran v. Shared Technologies Cellu, WC Claim No. 2001-007755 (LIRC Oct. 30, 2006).
In this case, the commission is concerned with the applicant's behavior regarding her claim. However, the applicant's claim of nonreceipt of the notice is not "inherently incredible." Specifically, while the applicant has delayed this matter in the past, she has not claimed "non receipt" before; instead, she has requested and has received postponements for the hearings scheduled on June 24, 2009, October 6, 2009 and May 20, 2009. See Nerad. Additionally, unlike the case of Johnson v. American Budget Inn Hurley, WC Claim No. 1998-055909 (LIRC Nov. 28, 2001), where the commission affirmed a dismissal with prejudice noting that, "the applicant had been warned that if she failed to provide medical substantiation and produce a prima facie case, her claim would be dismissed with prejudice," the applicant had no such warning. In May 2010, the matter was essentially put in an indefinite hold and, when the respondent's request was received, the scheduling procedure changed. Base on the foregoing, the commission concludes an evidentiary haring is necessary to determine whether the applicant's failure to appear at the prehearing was due to excusable neglect.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The administrative law judge's findings and order are set aside. This matter is remanded to the department for hearing and decision on whether the applicant's failure to appear at the March 23, 2011 prehearing before ALJ Martin was the result of excusable neglect and, if appropriate, on the merits of the case. If excusable neglect is not established, or the applicant fails to appear at the hearing, the presiding ALJ shall reinstate ALJ Martin's order with modification to reflect such and that it is a dismissal with prejudice. If excusable neglect is established, the presiding ALJ shall issue a decision on the merits.
Dated and mailed
February 28, 2012
alforva : 150 : 6 ND6 9.9 9.18
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
cc:
Attorney Peggy Van Horn
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