Wis.LIRC WC Decision: Luedke, Richard - March 27, 1990 - ND � 8.9 - Dismissal of Application; Default Order for non-response -- issuance of default order based on failure to file answer -- fairness requires that, before an order is issued on a default basis, the party against whom the order is to be issued should be warned

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

RICHARD L. LUEDKE, Applicant

LAKEWOOD FILTERS, INC, Employer

FIREMAN'S FUND INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89-040356

The employer submitted a petition for Commission review alleging error in the Administrative Law Judge's default order issued on January 26, 1990. The default order awarded an amount equivalent to one year of the applicant's wages for unreasonable refusal to rehire, within the meaning of section 102.35 (3), Stats.

The Commission has reviewed the administrative record of this proceeding and hereby reverses the Administrative Law Judge's default order and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On October 18, 1989, the applicant submitted an application for hearing which alleged a violation of section 102.35 (3), Stats. An answer was due from the employer within 20 days, in accordance with IND. 80.05 (2). The employer was apparently unaware of this and failed to submit an answer or to secure counsel. However, on January 2, 1990, the Department sent out notice of a hearing scheduled for January 23, 1990. For unexplained reasons, on January 18, 1990, the Department sent out a notice indicating that the scheduled hearing was cancelled. On January 26, 1990, Administrative Law Judge Thomas McSweeney issued a default order dismissing the application because the employer had not timely submitted an answer.

The employer's failure to timely submit an answer in accordance with the administrative rule may not be condoned; and if the employer had received a warning from Administrative Law Judge McSweeney that a default order would be issued if no answer was forthcoming, then such order would have been appropriate. However, the Department does not regularly issue default orders for late answers, unless the employer has been formally warned that a default order is imminent. This is borne out by the fact that the Department scheduled a hearing for January 23, 1990, even though no answer had been submitted. Discretion was exercised to order the cancellation of such hearing, and to shortly thereafter issue a default order, without any explanation of this misleading procedure. Given the fact that the employer was not formally warned that a default order was about to be issued, and the fact that the initial scheduling of a hearing was misleading, the Commission concludes that the issuance of a default order in this proceeding was an unreasonable exercise of discretion. The employer should therefore submit an answer to the Department within ten days from the date of this order, if it has not already done so. Thereafter, a new opportunity for hearing shall be allowed.

NOW, THEREFORE, this

ORDER

The default order issued on January 26, 1990, is set aside. The matter is remanded to the Department for hearing, assuming an answer to the application has been received from the employer or is received within ten days from the date of this order.

Dated and mailed March 27, 1990
ND � 8.9

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

cc:

Judith S. Laufer, Attorney
de Vries, Vlasak & Schallert, S.C.

John K. Brendel
Counselor at Law

185 : CD8529

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/05/03