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

DAVID K BALDWIN, Applicant

ANGELO LUPPINO INC, Employer

AMERICAN ECONOMY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93011668

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. The application is dismissed with prejudice.

Dated and mailed July 15, 1997
blackmi.wsd : 185 : 8 ND § 8.9 § 8.17

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The relevant events leading up to the hearing held in this matter on September 12, 1996, are accurately set forth in the administrative law judge's order. The applicant's attorney asserts that prior to going on the record at the hearing, ALJ Ryan told him that because of his association with the Wisconsin Academy of Trial Lawyers and Attorney Dennis Cochrane, the applicant's case would be dismissed with prejudice. ALJ Ryan has denied that he told applicant's attorney the dismissal with prejudice would be linked to the attorney's association with the WATL or Attorney Cochrane. Respondent's attorney, who was also present throughout the proceeding, concurs with ALJ Ryan's recollection, and the commission finds this recollection to be credible. ALJ Ryan's Order fully explains the reasons for his decision to dismiss with prejudice, and these reasons are not related to applicant's attorney's association with WATL or Attorney Cochrane.

The applicant has made several arguments in his petition for commission review. He argues that after filing an application for hearing, there is no statutory limit on the ability of an applicant to withdraw his or her claim. However, Wis. Stat. § 102.18 (1)(a) specifically provides that a default order may be issued, and Wis. Admin. Code § DWD 80.09 states that the department shall grant postponements and continuances only because of extraordinary circumstances. The statutory limit on the ability to withdraw a claim is therefore a discretionary limit exercised by the department pursuant to Wis. Stat. § 102.18 (1)(a). Withdrawals are allowed only based on extraordinary circumstances.

The applicant argues that almost without exception, the department dismisses claims without prejudice rather than with prejudice, citing a statement to that effect in Neal and Danas, Worker's Compensation Handbook § 8.8 (3rd ed. 1996). It is true that at the prehearing stage, when it has been determined that an applicant has failed to obtain prima facie evidence to support his/her claim, administrative law judges have frequently elected to dismiss the claim without prejudice. However, the circumstances of this case are completely different from such a discretionary action.

The applicant was represented by counsel who wrote to the department after the formal hearing was scheduled and requested substitution of a different administrative law judge in place of Administrative Law Judge Ronald Ryan. The basis for this request was alleged bias on ALJ Ryan's part against clients whom counsel represents. ALJ James T. O'Malley promptly replied to counsel with a letter denying the request for substitution, and noting that the remedy for any perceived bias would be to petition for review to the Labor and Industry Review Commission. This would be in accordance with the statutory procedure set forth in Wis. Stat. § 102.18. On September 9, 1996, two days prior to the scheduled hearing, applicant's counsel faxed a letter to the department asserting that the applicant was withdrawing his application but reserving his right to refile. Applicant's counsel appeared at the scheduled hearing but submitted no evidence.

The applicant was given a full and fair opportunity for hearing. The decision to dismiss his claim with prejudice was the appropriate response to his actions and his counsel's actions, which deliberately defied the statutory procedure for adjudication of his claim. Wis. Stat. § 102.18 (1)(a) calls for the exercise of discretionary authority in determining whether a default order should be issued. Verhaagh v. LIRC, 204 Wis. 2d 154, 160, 554 N.W. 2d 678 (Ct. App. 1996). This exercise of discretion must be based on the relevant facts and constitute a determination which a reasonable person could reach. Id.. The administrative law judge and the commission have reasonably concluded that the applicant's and his counsel's deliberate defiance of the statutory hearing procedure, and of the unambiguous warning provided by ALJ O'Malley, required a dismissal with prejudice. Unreasonable actions by a claimant preceding or at the hearing may properly lead to dismissal with prejudice. See for example, Sheryl L. Guy v. Boston Store Milwaukee and National Union Fire Insurance, WC Claim No. 94072529 (LIRC July 25, 1996); Janet Cran v. UFE, Inc. and American Motorists Insurance, WC Claim No. 92029355 (LIRC May 25, 1995).

The applicant next argues that since ALJ Ryan was allegedly biased against him, there was no alternative to the withdrawal of his application. This argument is intertwined with the argument that the applicant was denied due process because of ALJ Ryan's alleged bias. These arguments are rejected. The applicant submitted synopses of 105 worker's compensation cases decided by ALJ Ryan and appealed to the commission over a five year period. In all except eight of these cases ALJ Ryan denied all compensation. While this may raise some statistical suspicion, the applicant failed to identify any unreasonable or illogical finding made in any particular case, or to otherwise specify any particular finding which could be said to reveal bias.

The applicant also cited affidavits his attorney solicited from other attorneys and submitted to the Worker's Compensation Division, which alleged that ALJ Ryan was biased against worker's compensation applicants. While these affidavits demonstrate that these particular attorneys are convinced that ALJ Ryan favors employers and their insurers over applicants, they fall far short of proving bias. It is likely that a poll of some other small group of attorneys who practice in worker's compensation would show that they consider some other ALJ to have a predilection towards allowing compensation.

The rather remarkable argument that the applicant had no alternative to withdrawal of his claim completely ignores the statutory framework which establishes the Labor and Industry Review Commission. Pursuant to Wis. Stat. 102.18 (3), the commission acts as an original fact finder and reviewer of the administrative law judge's decision. The commission's history demonstrates its ability and willingness to exercise its authority. Had the applicant presented his case before ALJ Ryan and been displeased with the decision, he would have been entitled to full and fair review of the entire proceeding by the commission, acting as an original and ultimate fact finder.

Finally, the applicant has asserted that he was denied equal protection under Article I, sec. 1 of the Wisconsin Constitution, by virtue of the fact that his application was dismissed with prejudice, whereas he believes other applications in similar circumstances have been dismissed without prejudice. Wis. Stat. § 102.18 (1)(a) does not create any classification of citizens, but merely authorizes the exercise of agency discretion in the administration of a statutory program. Even were the statute to be construed to establish classifications, they would be classifications based on the exercise of substantial and reasonable distinctions in the way applicants proceed with their claims. A claimant who has a legitimate and substantial reason for requesting postponement of a hearing, or for withdrawing an application for hearing, will be allowed the postponement or the withdrawal. However, the applicant in this case requested a withdrawal based on his displeasure with the administrative law judge assigned to the hearing, and was informed by the department that this was not a legitimate reason for such request. Obviously, were the department to allow parties to refuse hearings based on the assignment of the administrative law judge, the administrative process would quickly become unmanageable and unresponsive to the needs of all parties. The applicant has not offered an example of a dismissal without prejudice where a party declined to go to hearing based on the assignment of the administrative law judge, because there has never been a dismissal without prejudice under such circumstances. The applicant has not been denied equal protection of the law. His application was properly dismissed with prejudice.

cc: Attorney Daniel D Hannula
Ashley, Hannula & Halom

Attorney David A Piehler
Terwilliger, Wakeen, Piehler & Conway SC

Appealed to Circuit Court; aff'd September 30, 1998. Appealed to Court of Appeals;  aff'd. sub nom. Baldwin  v. LIRC et al.,
___ Wis. 2d___, 599  N.W.2d  8  (Ct. App., Nos. 98-3090,  Filed June 2, 1999; publication recommended)

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