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

BETTY J LEWIS JONES, Applicant

GLENFIELD HEALTH CARE, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1994-039841

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.

Dated and mailed June 30, 2000
jonesbe . wsd : 132 : 6   ND § 7.34

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondent has petitioned for commission review of the adverse findings and order of the ALJ. The commission has reviewed the record and agrees with the ALJ's findings of fact and conclusions of law. In particular, if the respondent believed it had a right to withhold taxes from the ordered $31,903 penalty award it should have appealed the amount of the award. As noted by the ALJ, the plain and unambiguous language of the order required the employer to tender to applicant $31,903. The commission agrees with the ALJ that based on the plain language of the order, the respondent's failure to appeal the amount awarded the applicant on the basis that respondent was entitled to withhold taxes, and the commission's prior treatment of this matter, the employer did not have a reasonable basis for failing to pay the full amount ordered.

The respondent argues that federal law prevails over an outcome "concocted" by a state agency and a "CLE book's squib notes" of that agency's holdings. In its brief of February 29, 2000 the respondent states, "The Respondent made it very clear early on that it believed the Applicant's award constituted taxable income according to the federal tax code."

The respondent's belief was not shared with the ALJ at the hearing or before the ALJ's order was issued, although the Beyers case was filed before the ALJ's order was issued. (1)   The respondent did not seek clarification of the ALJ's May 16, 1997 order. The respondent's belief was not mentioned to the commission in its petition, brief, reply brief, or in a request for reconsideration. The respondent's belief was not mentioned in its briefs to the circuit court prior to the circuit court's November 25, 1998 decision.

The respondent's belief was not shared until January of 1999, twenty months after the ALJ's order was issued. Only then, when applicant should have expected that she would finally be paid pursuant to the ALJ's order, did the respondent share with applicant its belief that the award constituted taxable income. A belief that respondent knew was contrary to the position of the department and the commission.

The commission agrees with the ALJ that the employer acted in bad faith, inexcusably delayed in making payments due, must pay interest on the award, and is liable for applicant's attorney's fees.

cc:
ATTORNEY THOMAS M DOMER
SHNEIDMAN MYERS

ATTORNEY PETER L ALBRECHT
LAFOLLETTE GODFREY & KAHN

Appealed to Circuit Court. Affirmed February 8, 2001. Appealed to Court of Appeals.  Affirmed December 20, 2001. [Court of Appeals decision] 

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Footnotes:

(1)( Back ) The exclusivity of the Worker's Compensation Act was not the sole rationale for the commission's decision in Lancour v. Mauer Bakeries, Inc., WC Claim No. 8454115 (LIRC Nov. 20, 1990).