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

CHAD WEAVER, Applicant

CARDINAL INSULATED GLASS, Employer

AMERICAN MOTORISTS INS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94039896

The employer contends in its petition for commission review that the administrative law judge erred in entering a default order in this matter and awarding the applicant $1,461.51 in permanent partial disability as well as a 10 percent penalty in the amount of $146.15 as increased compensation for inexcusable delay in payment under Wis. Stat. § 102.22.

The commission has carefully reviewed the file in this matter and hereby sets aside the administrative law judge's default order and remands to the department for further proceedings to determine if the employer inexcusably delayed payment pursuant to Wis. Stat. § 102.22. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant filed a claim for a work-related hand injury on July 1, 1994 when he caught his right hand in a machine press. Dr. Fink filed a report on the applicant's behalf. The department sent the employer's insurer a letter dated May 4, 1995, indicating that permanent disability in the amount of $1,191.32 was owed and payable. The insurer promptly paid the applicant the amount of $1,191.32. In addition, the employer and its insurer paid the applicant for temporary total disability between July 1, 1994 and July 28, 1994.

The department subsequently sent the insurer a letter dated March 12, 1996, requesting the employer to pay the additional amount of $1,461.51 for permanent disability. The employer contends in its petition for commission review that it never received the department's letter dated March 12, 1996. There is another letter in the department's file dated February 21, 1997, which indicates that it is the third notice that there is $1,461.51 balance owing in compensation and requesting the insurer to send the payment immediately or an explanation for nonpayment. The letter indicates that failure to comply with this request within 30 days may result in an administrative law judge's issuance of a default order without hearing for the balance due plus a delay penalty. The department subsequently issued a default order dated November 26, 1997 which found that the insurer owed $1,461.51 in permanent disability which was delayed, and assessed a 10 percent penalty for inexcusable delay in payment pursuant to Wis. Stat. § 102.22.

The insurer contends in its petition for commission review that it in fact did respond and request further information in the form of a worksheet to explain why the further amount of $1,461.51 was due in permanent disability when the insurer had already paid $1,191.32 based on the department's initial worksheet. The insurer states that on November 9, 1996 the department sent a letter to the insurer indicating that $1,461.51 was still owed for permanent disability but did not include a worksheet explaining why the additional permanency was owed. The insurer states that as a result on December 19, 1996, the insurer sent back a copy of the November 9, 1996 letter with a notation requesting a revised worksheet. There is no copy of this note from the insurer dated December 19, 1996 in the department's file. However, the insurer included a copy of this notation on the department's letter dated November 9, 1996, with its petition for commission review.

The insurer also contends that in response to the department's letter dated February 21, 1997, the insurer sent a letter dated February 26, 1997, which indicated that the insurer had received the department's letter and advised the department that on two occasions the insurer had sent information and informed the department that there was an alleged revised worksheet, and that the insurer did not have a copy of the worksheet. The insurer requested the department to help straighten out the matter. The insurer has included a copy of its letter dated February 26, 1997 with its petition for commission review.

The insurer contends that the department never responded to its letter dated February 26, 1997, and a follow up copy of that letter was sent in May 1997, but the department never responded to the subsequent correspondence, and the insurer did not receive any letter until it received the default order in November 1997. The insurer contends that it did respond to the department's letters in November 1996 and February 1997. The commission agrees. It appears in this case that on at least two occasions the insurer responded to the department's letter and therefore there was no failure to respond to explain the delay or pay the balance due. The commission does not find it unreasonable that the insurer requested the department to send a revised worksheet so that it could see on what basis the department was assessing further permanent disability. In addition, it is not clear why the insurer did not receive the department's initial letter dated March 12, 1996, requesting further payment of permanent disability. Therefore, the commission finds that the default order is in error since the employer did respond with the reasons for not making payment within 30 days as requested.

ORDER

Based upon its review the commission has set aside the department's default order and remands to the department for further proceedings to follow up on the employer's contention that it requested a worksheet to determine the basis of permanent disability and did not unduly delay payment.

Dated and mailed: April 23, 1998
weavech.wrr : 175 : 7   § 7.24 § 8.9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

cc: ATTORNEY ANDREW QUARTARO
PETERSON JOHNSON & MURRAY SC

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