Wis.LIRC WC Decision: Bush - January 9, 2001 - ND � 9.3 - Mistake or Newly Discovered Evidence - LIRC authority under � 102.18(4)(c) to set aside final decision within 1 year must be exercised, and not merely requested, within that year - where party filed request for LIRC to exercise that authority on the last day of the year, LIRC was unable to do so in the few hours of the year that remained, and the request was therefore denied.

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

DUANE BUSH, Applicant

REPUBLIC AIRLINES INC, Employer

FRED S JAMES & CO, Insurer

NORTH RIVER INS CO

WORKER'S COMPENSATION DECISION
Claim No. 1998-059711

An administrative law judge (ALJ) for the Department of Workforce Development, Worker's Compensation Division (the division) issued a decision in this matter on October 27, 1999. Thereafter, on October 26, 2000, the commission received a "Petition for Review of Order of Administrative Law Judge and Motion to Set Aside Order of Administrative Law Judge" from North River Insurance Company (North River). North River's filing seeks review under Wis. Stat. � 102.18(3) and relief under Wis. Stat. � 102.18(4)(c). Essentially, North River claims the ALJ erroneously issued his October 27, 1999 order against it because North River was not and is not the workers compensation insurer for the employer.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant claims a December 4, 1984 work injury arising out of employment with the named employer. The commission offers the following recitation of procedural facts based upon documents in files maintained by the Worker's Compensation Division with respect to the applicant's December 4, 1984 injury. As explained below, most of the facts are provided solely as background, rather than as the basis for the commission's decision in this matter.

Division records show North River Insurance Company as the insurer on the risk from December 1, 1984, to December 1, 1985. Division records also include a "Claim Activity Report of 08/12/96" addressed to North River which shows payment of some compensation, including temporary disability compensation to July 1, 1986, and medical expense, based on the December 1984 date of injury.

The Claim Activity Report includes a handwritten comment referring to "our letter of 7/25"; attached to the Claim Activity Report is a July 25, 1986, letter from James/Fred S. James & Co of Wisconsin Inc. (Fred S. James Wisconsin.) Fred S. James Wisconsin's stationery describes the company as an insurance broker. Other documents indicate that at least some compensation was paid to the applicant for the December 4, 1984, work injury in July or August 1987. See particularly the letter from Larry R. Jakubowski to the Department dated January 27, 1987 (referring to a payment of permanent disability and bearing a corrected file number corresponding to the December 1984 date of injury), the letter from Larry R. Jakubowski to Christine Bremer dated June 5, 1987 (referring to conceded permanent disability by Fred S. James & Company), and the Division's February 4, 1987 benefit calculation worksheet for the December 1984 injury, addressed to North River as the insurer.)

Then, in November 1998, the applicant filed an application for hearing based on the 1984 date of injury. (1 ) The application and DWD's "Notice of Application" were sent to Fred S. James & Co. in Chicago (Fred S. James Chicago) as insurer. North River is not named in the application. However, North River was listed in the Division's Notice of Application dated November 19, 1998, though its copy was sent in care of Fred S. James Chicago.

The copy of the Notice of Application sent to the employer (Republic Airlines) was returned by the U.S. postal service. Evidently, Republic merged with some other airline and no longer does business at the South Howell Avenue address in St. Francis last known to the department. However, the copy sent to Fred S. James Chicago was not returned. At least, the Division's records do not include a returned copy.

Neither the employer nor Fred S. James Chicago answered the November 1998 hearing application. According to North River, Fred S. James & Company did not have a business relationship with North River in November 1998, and North River believes that Fred S. James & Company ceased doing business in Chicago well before November 1998.

In July 1999, ALJ Lawrence sent a letter to Sedgwick Claims Management Services (Sedgwick) noting that ALJ Lawrence would issue a default order if he did not receive a response. The commission concludes that Sedgwick is involved because in April 1999, Sedgwick returned to the applicant's current attorney (Thomas Domer) certain documents which Mr. Domer had previously sent to "North River Ins. Co. c/o Fred S. James & Co." The documents returned by Sedgwick included a vocational report that Domer had sent to Fred S. James Chicago. See Domer letters dated March 25 and June 8, 1999. Sedgwick returned documents the applicant's attorney had sent because it had no record of the applicant and "no longer handled the client." The commission infers from this that Sedgwick was receiving mail sent to Fred S. James Chicago, explaining why documents sent to Fred S. James Chicago in 1998 were not returned by the U.S. postal service.

At any rate, after sending his letter threatening default, ALJ Lawrence in fact issued a default order on October 27, 1999. ALJ Lawrence's default order lists both Fred S. James & Co. and North River as "insurance carriers," then orders the respondent's insurer to pay certain sums. Copies of ALJ Lawrence's October 27, 1999, order were sent to the employer (Republic Airlines), Fred S. James Chicago, and North River. North River's copy was addressed directly to North River, at an address in Brookfield, Wisconsin. The Division's records indicate that Republic Airline's copy was returned by the U.S. postal service, but copies sent to Fred S. James Chicago and North River were not.

On December 14, 1999, Michael Hicks, North River's attorney, wrote to the Division. Mr. Hicks's letter refers to a 1984 date of injury, and references the file number (1998-059711) assigned to the applicant's June 1998 hearing application and ALJ Lawrence's October 1999 default order. In his letter, Mr. Hicks asks for a copy of the file, and states Mr. Hicks's understanding that payments had been made to the applicant in 1984. Mr. Hicks's letter seeks information regarding when an application was filed in 1984 as well as "the more recent filing in November of 1998." The commission infers from notations on the copy of Mr. Hicks's letter in the Division's record that copies of the file were sent to him in December 1999.

Then, on October 26, 2000, the commission received North River's petition for review and motion to set aside ALJ Lawrence's October 27, 1999 decision. The commission thus received the petition-motion on the last day in the one year period beginning with the issuance of Lawrence's order on October 27, 1999 (and ten months after Hick's letter to DWD in December 1999.) The preliminary recitals of the document mention both the traditional LIRC review that must be filed within 21 days of the ALJ's order under Wis. Stat. � 102.18(3) (2 ), and the extraordinary relief permitting the commission to set aside orders within one year of issuance under Wis. Stat. � 102.18(4)(c). (3 ). As noted above, the petition-motion claims North River is not the proper insurer and that it never got proper notice.

On November 7, 2000, applicant's attorney Domer sent a letter asking the commission to dismiss the petition-motion as untimely. The next day, North River's attorney responded its petition-motion was timely filed under Wis. Stat. � 102.18(4)(c).

The commission first considers the petition for review under Wis. Stat. � 102.18(3). According to that statute, the commission must dismiss a petition for commission review of an ALJ's order if the petition was filed more than 21 days after a copy of the ALJ's order was sent to the petitioning party, unless the petitioner shows probable good cause that the reason for the untimely filing was beyond its control. In this case, the commission concludes that North River received the copy of ALJ Lawrence's October 27, 1999, order shortly after it was sent to its Brookfield address. Indeed, North River does not represent otherwise, nor does North River explain why a petition for commission review could not have been filed within 21 days of ALJ Lawrence's order. Consequently, the commission concludes that North River has not shown probable good cause that its failure to file a petition for review within 21 days after ALJ Lawrence's October 27, 1999, order was beyond North River's control. North River's petition requesting commission review under Wis. Stat. � 102.18(3) must be dismissed.

Turning to the motion for relief under Wis. Stat. � 102.18(4)(c), the commission notes, again, that there is no evidence that North River did not receive ALJ Lawrence's order shortly after it was mailed on October 27, 1999. Certainly, Mr. Hicks's December 14, 1999, letter establishes that North River knew about the default order by December 1999 at the latest. Yet North River waited until the last possible day ten months later to file a request for action under the one-year statute, Wis. Stat. � . 102.18(4)(c).

Wis. Stat. � 102.18(4)(c) requires the commission to act by setting aside an ALJ's order within one year of the order's issuance. The time deadline in the statute is not tolled if a party's motion asking the commission to act within a year is filed within the one-year deadline. The commission ordinarily attempts to expedite its consideration of even last-minute requests for action under Wis. Stat. � 102.18(4)(c) to prevent the one-year deadline to pass with no action taken. In this case, however, the commission was unable to process the applicant's motion for relief under Wis. Stat. � 102.18(4)(c) within the few hours that remained in the one-year period by the time of its receipt at the commission's office. Because the one-year period set out in Wis. Stat. � 102.18(4)(c) passed before the commission was able to consider North River's motion for relief under Wis. Stat. � 102.18(4)(c), that motion, too, must be dismissed.

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

ORDER

North River Insurance Company's petition for commission review under Wis. Stat. � 102.18(3) is dismissed. North River Insurance Company's request for relief under Wis. Stat. � 102.18(4)(c) is dismissed.

Dated and mailed January 9, 2001
bushdu.wpr : 101 : 1 ND � 9.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY THOMAS M DOMER
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER

ATTORNEY MICHAEL J HICKS
HILLS & HICKS SC

Appealed to Circuit Court.

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Footnotes:

(1)( Back ) Payments as late as 1987, described above, may explain why the Division treated the application as timely under the 12-year statute of limitations which runs from the date of injury or last payment of benefits. Wis. Stat. � 102.17(4). In any event, North River does not raise a statute of limitations defense in its petition-motion.

(2)( Back ) 102.18(3) 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 findings and order to the party's last- known address. The commission shall dismiss a petition which is not timely filed unless the petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control. If no petition is filed within 21 days from the date that a copy of the findings or order of the examiner is mailed to the last-known address of the parties in interest, the findings or order shall be considered final unless set aside, reversed or modified by the examiner within that time. If the findings or order are set aside by the examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the examiner the time for filing a petition commences with the date that notice of reversal or modification is mailed to the last-known address of the parties in interest. The commission shall either affirm, reverse, set aside or modify the findings or order in whole or in part, or direct the taking of additional evidence. This action shall be based on a review of the evidence submitted.

(3)( Back ) 102.18(4) (c) On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and, after further consideration, do any of the following: 1. Affirm, reverse or modify, in whole or in part, the order or award. 2. Reinstate the previous order or award. 3. Remand the case to the department for further proceedings.

uploaded 2001/01/16