Wis.LIRC WC Decision: Bennett - June 3, 1999 - ND � 8.29 - Administrative Notice - "administrative notice" of U. S. Postal Service zip code directory and other information at USPS website, pursuant to Wis. Admin. Code � DWD 80.12(1)(a) and Wis. Stat. � 902.01(2)(b); ND � 9.2 - Petition for Review - late petition - good cause

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

THOMAS E BENNETT, Applicant

HARMON CONTRACTORS WSA INC, Employer

CRAWFORD AND CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998002955

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (the department) issued a decision in this matter. A petition for review was filed on behalf of the employer and insurer (collectively, the respondent.) The petition for commission review was untimely; the issue before the commission is whether it may nonetheless accept the petition and review this case.

The procedural posture of this case may be quickly recited. The applicant filed an application for hearing, listing the employer's address in Bloomington, Minnesota. The application was served on February 12, 1998. The employer never filed an answer or otherwise responded.

Shortly, thereafter, on February 15, 1998, the department sent a computation of permanent disability due on the claim to the insurer, in care of a third party administrator, American Intl Adjustment (hereafter TPA American) in Michigan. There was no response.

Next, the department sent a notice of hearing in July 1998 to the employer using the employer's correct street address and ZIP code, but listing the city as Minneapolis (rather than Bloomington), Minnesota. The department also served the notice on the insurer, in care of TPA American. The employer and insurer failed to appear at the hearing.

Accordingly, ALJ Janine Smiley issued a default order in favor of the applicant in September 1998. ALJ Smiley's order was mailed to the employer, again at the correct ZIP code and street address but in Minneapolis, and to the insurer in care of TPA American. Neither the employer nor the insurer filed a petition for review within 21 days of ALJ Smiley's order.

Next, in October 1998, the applicant's attorney sent TPA American a letter demanding payment. According to the applicant's attorney, this letter went unanswered.

Finally, the applicant's attorney called the employer by telephone at some point in March 1999. According to the employer, this is the first it heard of the claim. It retained an attorney, David Piehler, who first asked ALJ Smiley to set aside her order. After corresponding with ALJ Smiley, Mr. Piehler filed a late petition for commission review.

In support of his petition, Mr. Piehler asserts that neither the insurer nor the employer knew of the application, the hearing, or ALJ Smiley's order before the applicant's attorney called the employer in March 1999. He asserts that the subtle difference between Bloomington and Minneapolis in addressing the letters to the employer explains why the employer did not get the letters. He explains that the insurer did not learn of the claim because the correct third party administrator for the insurance contract at issue is Crawford & Company (TPA Crawford) in Wisconsin, not TPA American. He acknowledges that TPA American handles some contracts for the insurer, but not the one at issue, and reports:

"I have had past experiences where applications were erroneously sent to [TPA American] and they simply tossed them in the garbage without advising anyone of the error. That appears to be the reason that the insurer never received notice of this claim."

Piehler letter of April 13, 1999.

Mr. Piehler also states that TPA Crawford is well known to the Department, but that there was evidently an error in the department's records as to which the proper administrator was. See Piehler letter of April 26, 1999.

Wis. Stat. � 102.18 (3) provides, in relevant part, as follows:

"A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's decision to the party's last-known address. The commission shall dismiss any petition which is not timely filed unless the petition shows probable good cause that the reason for failure to timely file was beyond the petitioner's control . . ."

Wis. Admin. Code � LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. "Received" means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code � LIRC 3.01 provides, in relevant part, as follows:

"A petition for commission review of the findings or order of a department of workforce development administrative law judge under s. 102.18, Stats., shall be received within 21 days from the date of mailing of the findings and order to the parties . . ."

The ALJ's decision having been dated and mailed on September 29, 1998, the last day on which a timely petition for review could have been filed was October 20, 1998. The first correspondence from the respondent inquiring about the ALJ's decision was received by the Worker's Compensation Division on April 14, 1999; the document denominated a petition for review was received on April 27, 1999.

As indicated above, the petition for review Mr. Piehler filed on behalf of the respondent is untimely. The issue before the commission is whether the employer has shown "probable good cause that the reason for failure to timely file was beyond the petitioner's control "

In many circumstances, when the non-appearing party or late petitioner contends he did not receive the ALJ decision, hearing notice or other "triggering" document, the commission either remands for hearing on that allegation or simply accepts the petition. However, the commission generally declines to remand when the assertion of non-receipt is inherently incredible, (1 ) either by other material in the file or by the non-appearing party's own explanation. This exception ties in with established presumption that mailing a correctly-addressed letter will result in delivery and receipt. State ex rel. Flores v. State, 183 Wis. 2d 587, 612 (1994).

The commission first considers the employer's suggestion that the employer did not get the order and letters because they were sent to Minneapolis instead of Bloomington. Bloomington is a suburb of Minneapolis. According to the National Five-Digit ZIP Code and Post Office Directory (the Directory) published by United States Postal Service (USPS), Bloomington, Minnesota does not have its own post office. Indeed, the Directory lists Killebrew Drive as being entirely within Minneapolis and in the 55425 ZIP code. Further, entering "Harmon Contractors WSA" and the ZIP code 55425-1824 in the "ZIP+4 Code Lookup" site on the USPS's internet website (www.usps.gov/ncsc/) returns the employer's street address in Minneapolis. (2 ) Finally, the USPS apparently did not return as undeliverable any of the documents sent to the employer using the Minneapolis address. In sum, the commission declines to conclude that the Minneapolis address used by the department was a "wrong address" for the purposes of the USPS or that use of the Minneapolis address accounts for the employer's failure to respond to the correspondence. Rather, the commission concludes that the employer's assertion that it did not receive any of the several documents sent to it concerning this claim is inherently incredible.

Regarding the third party administrator, the commission, of course, cannot tell why the department sent correspondence on this claim to TPA American rather than TPA Crawford. However, TPA American is a proper address for the insurer, at least with respect to some contracts, and the respondent has provided no document or correspondence to establish why TPA American should not be considered the insurer's "last-known address." Further, the respondent admits that the insurer was aware that TPA American was throwing correspondence addressed to the insurer in the garbage without processing it or forwarding it to the insurer. The commission must conclude that TPA American's handling of the insurer's mail was the primary reason that the insurer was unaware of the claim, not some failure on the department's part. The insurer's failure to remedy the situation with its own agent was not "beyond its control."

The commission therefore finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. � 102.18 (3).

ORDER

The petition for review is dismissed.

Dated and mailed June 3, 1999
bennett.wpr : 101 : 5 ND � 8.29 � 9.2

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

Cc: ATTORNEY THOMAS J FLANAGAN
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC

ATTORNEY DAVID A PIEHLER
PIEHLER & STRANDE SC

HARMON CONTRACTORS WSA INC

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

Footnotes:

(1)( Back ) See Podgorski v. ABB Paint Finishing, WC Claim no. 95035783 (LIRC, August 29, 1996) aff'd sub nom. ABB Paint Finishing v. LIRC, case no. 97-1922 (Wis. Ct. App., January 6, 1998).

(2)( Back ) The commission takes administrative notice of the Directory and information on the USPS "website" pursuant to Wis. Admin. Code � DWD 80.12(1)(a) and Wis. Stat. � 902.01(2)(b).