Wis.LIRC WC Decision: Anderson, Larry - October 27, 1999 - ND � 9.2 - Petition for Review - late petition - sent wrong forms to petition for review; � 10.5 - Review of Compromise - compromises will not be reopened in the absence of gross inequity, important newly discovered evidence, fraud, duress, or mutual mistake

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

LARRY J ANDERSON, Applicant

JOHANNESONS OF WIS INC, Employer

CASUALTY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998025626

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the applicant.

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 administrative law judge's decision having been dated and mailed on August 16, 1999, the last day on which a timely petition for review could have been filed was September 7, 1999. The petition for review was received September 9, 1999.

In his petition for commission review the applicant, who is unrepresented, requested petition for commission review forms to fill out and was sent the wrong forms. He asserts that he informed the department of this and was sent the correct forms with the assurance that he still had time to fill out the forms.

The commission therefore finds that the petition for commission review was not timely but that the petitioner has shown 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).

The commission has considered the petition and it has reviewed the arguments 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.

DECISION

The petition for review is accepted. The findings and order of the administrative law judge are affirmed.

Dated and mailed October 27, 1999
anderla.wpr : 145 : 7 ND � 9.2 � 10.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the applicant asserts that Dr. Plooster's work capabilities report should override the opinion of Dr. Bogdanowicz. However, this is one of the factors that the applicant should have considered prior to entering the compromise. Judging the relative credibility of medical opinions is not part of the analysis when considering whether to reopen a compromise. The ALJ also ordered the respondent to pay six weeks of medical bills. However, the applicant did not demonstrate that it would be unconscionable to enforce the compromise. The commission has consistently held that compromises will not be reopened in the absence of gross inequity, important newly discovered evidence, fraud, duress, or mutual mistake. Michael Blenke v. American Can Company, WC claim no. 87037750 (LIRC, September 9, 1992); Julie Stuart-Giese v. Schoeneck Containers, Inc., WC claim no. 85060165 (LIRC, February 5, 1990); and John A. Danielson v. Land O Lakes, WC claim no. 92001626 (LIRC, May 25, 1995).

The applicant asserts that he was misinformed by his lawyer, however, he does not say what specifically he was misinformed about, and why this misinformation should warrant setting aside the compromise. Finally, he asserts that the ALJ would not examine x-rays of before and after his accident. However, the ALJ is not a medical doctor and therefore her examination of those x-rays would not have been of any value. Further, the x-rays relate to the credibility of the medical opinions and are outside the scope of this review. The ALJ's refusal to examine those x-rays therefore did not demonstrate that she was biased against the applicant.

NOTE: The respondent, in its answer to the petition for commission review, has requested a briefing schedule. However, the legal standard for reopening a compromise agreement is well settled, and the relevant facts, with regard to that issue, are not in dispute. The commission therefore believes briefs are not necessary in this case.

cc: ATTORNEY SCOTT E WADE

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