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

MR GRAHAM STOLPA, Applicant

SELJAN TOOL COMPANY INC, Employer

HARTFORD FIRE INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 97011508

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, except that it makes the following modifications:

1. Delete the text of the ALJ's Order and substitute:

"The application is dismissed without prejudice."

ORDER

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

Dated and mailed: February 27, 1998
stolpa.wmd : 101 : 3 ND 8.9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

As the ALJ stated in his order, the applicant failed to appear at the 8:00 a.m. hearing scheduled in this case. In his petition for review of the ALJ's order dismissing his case with prejudice, the applicant explained that he was one half hour late for his hearing due to traffic, parking problems, and unfamiliarity with the GEF-1 state office building where the hearing was held. When he arrived, the applicant states, he spoke with ALJ McSweeney who by then had evidently dismissed the applicant's case.

No specific statutory or rule provisions govern a failure to appear in workers compensation cases. In the absence of a statutory standard, the commission has traditionally applied an excusable neglect standard. See: Adelia M. Auclair v. LIRC, case no. 83-836 (Wis. Ct. App., May 22, 1984) and ABB Paint Finishing, Inc. v. LIRC, case no. 97-1992 (Wis. Ct. App., January 6, 1998). "Excusable neglect," of course, is the neglect of a reasonably prudent person under similar circumstances. Hedtcke v. Sentry Insurance Co., 109 Wis. 2d 461, 468 (1982). If the party who failed to appear shows he or she did so with excusable neglect, the commission will set aside an ALJ's default order (in the case of a non-appearing respondent) or order dismissing the application (in the case of a non-appearing applicant.) Otherwise, the commission will affirm the dismissal or default order.

In this case, the applicant has not shown excusable neglect. A reasonably prudent person under similar circumstances would leave home early to account for morning rush hour traffic, parking and unfamiliarity with a building. The commission therefore agrees that the application should be dismissed, and the matter not simply rescheduled for further hearing.

However, the commission does not believe the application should be dismissed with prejudice. Generally, where an applicant fails to appear, the appliation is dismissed without prejudice. Indeed, Neal & Danas, Workers Compensation Handbook, � 8.9 (4th ed. 1997) states "almost without exception, dismissals [by default without hearing] are without prejudice except if testimony has been taken or the 12-year statute of limitations has run." The commission acknowledged that point in affirming a dismissal without prejudice in Gorski v. Cranberry Lake Corp., WC case no. 96-027611 (February 26, 1997). (1)

In this case, the ALJ's decision does not explain why he issued a dismissal with prejudice. After giving this case careful consideration, the commission cannot conclude that being one-half hour late to a hearing is the type of default justifying a departure from the normal practice of a "without prejudice" dismissal. With-prejudice dismissals are normally reserved for repeated failures to appear or gross failures to provide necessary medical documentation, or similar situations where testimony has been taken. (2) In this case, no testimony was taken and the applicant provided with his petition a medical practitioner's report, dated well before the date of hearing, which supports his claim.

cc: ANN APPLEGATE SCOTT
ACTION LAW SC

ATTORNEY WALTER D THUROW

ATTORNEY DAVID WESTRICK
SMITH & ROGERS

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Footnotes:

(1)( Back ) Gorski was decided before the commission announced in Lawrence v. A-1 Cleaning, WC case no. 95060456 (LIRC, November 19, 1997) that it lacked jurisdiction to review dismissals without prejudice because such orders do not award or deny compensation. Wisconsin Statute � 102.18 (3). In this case, of course, the Lawrence rule does not apply as the ALJ's with-prejudice dismissal effectively denies compensation.

(2)( Back ) Janet Cran v. UFE Inc., WC case no. 92029355 and 94001877 (LIRC, August 8, 1995); Mortenson, supra.