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

RAUL G GALVIN, Applicant

TROPIC BANANA COMPANY, Employer

CINCINNATI CASUALTY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998011253

This case arises from a default order issued on December 8, 1998 by Administrative Law Judge James O'Malley of the Workers Compensation Division of the Department of Workforce Development (the department). The insurer has filed a timely petition for commission review.

The applicant hurt his hand while lifting a box of potatoes on December 8, 1997, and sustained disability as a result. Thereafter, the insurer made its first payment of compensation on February 17, 1998. Because the payment occurred more than fourteen days after the injury, it raised the possibility of inexcusable delay under Wis. Stat. § 102.22(1).

As a result, the department sent out a form demand letter to the insurer on May 19, 1998. The form letter required payment of the $135.67 as an inexcusable delay penalty, or an explanation about why the initial payment was late, within 30 days. Based on a finding that the insurer never responded to the demand letter, ALJ O'Malley issued a default order on December 8, 1998, requiring the insurer or self-insured employer to pay the penalty within 21 days.

In its petition for review of ALJ O'Malley's order, the insurer states that it did respond to the department's May 19 demand letter. Indeed, the insurer attached to its petition a copy of a June 3, 1998 letter to the department. The letter states that the employer did not report the injury to the employer until February 4, 1998. This would, of course, mean the insurer in fact paid the claim within fourteen days of learning of it. It would also suggest that the employer failed to notify the insurer of the injury within 7 days as required under Wis. Admin. Code, § DWD 80.02(1).

Finally, on January 22, 1999, the department received some correspondence from the employer (Tropic Banana). The correspondence included a copy of ALJ O'Malley's December 8 order, to which is stapled a photocopy of a check drawn by Tropic Banana payable to the applicant in the amount of the penalty with the hearing number from O'Malley's order written on it. The reverse of the check is also photocopied and indicates the check was indorsed by the applicant and has been paid. At the bottom of the first page of ALJ O'Malley's order is written: "Sorry this was late I was out of town."

On this record, the commission must conclude that the default order assessing the inexcusable delay penalty against the insurer was inappropriate.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are set aside. This matter is remanded to the department for further appropriate action, if any.

Dated and mailed June 3, 1999
galvin.wpr : 101 : 3 ND § 7.24, § 8.8, § 8.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: TIM MCGUIRE
SR CLAIMS REPRESENTATIVE
CINCINNATI INSURANCE COMPANIES

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