Wis.LIRC WC Decision: Holbrook - September 21, 2000 - ND � 7.41 - Illegal Employment of Minors; � 8.9 - Dismissal of Application; Default Order for non-response - default order assessing increased compensation (for allowing minor applicant to do agric. work w/o labor permit) where employer failed to respond timely to department

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

CECIL HOLBROOK, Applicant

DIERCKS & SONS INC, Employer

SOCIETY INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998006956

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 September 21, 2000
holbroo.wsd : 175 : 5 ND � 7.41 � 8.9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the employer was required to pay double the amount otherwise recoverable to the applicant pursuant to Wis. Stat. � 102.60(1), since the employer is a potato farm and pursuant to Wis. Stat. � 103.70(1) the applicant was employed as a minor engaged in agricultural pursuits and did not need to obtain a work permit. The employer contends that the administrative law judge erred in entering a default order in this matter requiring the employer to pay double the amount otherwise recoverable. However, the evidence indicates that the department sent the employer a letter dated March 6, 1998 which informed the employer that the department's records demonstrated that the applicant was a minor while employed at the time of his injury, and that the department could find no labor permit on file as required by Wis. Stat. � 103.70. The letter indicated that if the department's records were correct double compensation may be due from the employer pursuant to Wis. Stat. � 102.60. The letter indicated that the employer was to contact its insurance carrier promptly to learn the amounts due for primary compensation and make payment of the appropriate extra compensation for employing a minor without the proper permit. The employer did not respond to the letter dated March 6, 1998.

The department sent the employer a second letter dated May 14, 1998 indicating that double compensation for employment of a minor without a labor permit was being assessed in the amount of $1,066.67. The letter stated that from the information the department had primary compensation and increased compensation were due and payable, and requested payment of the amount due. The letter indicated that if the department did not receive such payment or response within 14 days it would issue an order assessing the payment. The employer did not respond to the department's letter dated May 14, 1998. The department subsequently sent a third letter to the employer on September 21, 1998 again indicating that double compensation for employment of a minor without a labor permit was due. The letter again requested payment for increased compensation and notified the employer that if the department did not receive payment or response within 14 days it would issue an order assessing the payment. The department did not hear from the employer or its insurer or agent or attorney thereafter for a period of almost two years. The department issued a default order on July 7, 2000 which indicated that the matter was before the department because of the employer's failure to pay the applicant's increased compensation as requested by earlier correspondence from the department.

Under these circumstances the commission finds that the department was warranted in issuing a default order assessing the increased compensation against the employer. The fact that the employer has now come forward alleging that it had a valid reason for the applicant to work as a minor without a labor permit due to the agricultural nature of the work, at this late date is not sufficient. The employer had ample opportunity to respond and provide this information on a timely basis to the department. The department has a need to bring these cases to closure and issue default orders on appropriate cases based on the information presented and available to the department. Departmental letters informed the employer that if the department did not receive receipt of payment or response within 14 days that it would issue an order assessing such payment. However, the employer failed to file any response to the department's three letters and does not provide any reasonable explanation for its failure to do so. Under these circumstances the commission finds that the department appropriately issued a default order finding that the employer is required to pay double the amount otherwise recoverable under Wis. Stat. � 102.60.

cc: ATTORNEY JOHN B RHODE

Appealed to Circuit Court. Reversed May 4, 2001.

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