Wis.LIRC WC Decision: Silberg, Robynn (2) - June 7, 1991 - ND � 8.29 - Administrative Notice -- fact dispute over whether injury was caused by on-the-job or off-the-job incident -- parties given notice of Commission intention to take "administrative notice" specified documents from the record of a related UC case, and opportunity to submit statement of position on the taking of such administrative notice

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

ROBYNN A. SILBERG, Applicant

AMSOIL, INCORPORATED, Employer

TRAVELERS INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 87-016478

On October 22, 1990 the Commission issued its decision and interlocutory order in the above matter, which set aside the Findings of Fact and Order of the Administrative Law Judge and ordered payment of certain compensation, reserving jurisdiction for further findings and orders as might be warranted. [previous commission decision] Respondents commenced an action for judicial review of the Commission's decision. On May 8, 1991, the Circuit Court for Douglas County, Judge Michael T. Lucci presiding, issued an order remanding the case to the Commission for reconsideration of its decision and such other proceedings as may be appropriate based on that reconsideration.

Considering the correspondence between counsel for the parties and the court leading up to the issuance of the court's order, the order itself, and the provisions of section 102.24, Stats., which authorizes the court to remand a matter to the Commission either upon the setting aside of the order of the Commission or for the purpose of allowing the department to act upon a proposed settlement or compromise, the Commission concludes that the purpose and effect of the court's order was to set aside the Commission's decision and order of October 22, 1990. The Commission therefore treats that decision and order as having been set aside.

In compliance with the court's order that the matter be remanded to the Commission for it to reconsider its decision of October 22, 1990, and for such other proceedings as may be appropriate based on the reconsideration, the Commission hereby gives notice to the parties that, in connection with its reconsideration of its decision of October 22, 1990, it proposes to take notice of the contents of the following documents contained in the DILHR Unemployment Compensation Division's file on Robynn Silberg's unemployment compensation claims history, copies of which are appended hereto:

Adjudicator's preliminary claim report (two page computerized record);
Employer's WCB-203 (Request For Work Record) form dated August 10, 1988;
Initial Determination dated August 25, 1988;
Request for hearing dated September 1, 1988;
Notice of Hearing dated November 9, 1988;
Appeal Tribunal Decision dated December 8, 1988;
Petition for Commission review dated December 27, 1988 (and attached December 22, 1988 letter);
Commission decision dated March 30, 1989.

The parties are further notified that the Commission intends to give the contents of those documents such weight as is appropriate under the circumstances. Neither the Appeal Tribunal Decision dated December 8, 1988 nor the Commission decision dated March 30, 1989 will be treated as conclusive on the question of whether Robynn Silberg's injury arose out of her employment while performing service growing out of and incidental to that employment.

Based on such consideration of those documents, and on the entire record made before the Worker's Compensation Administrative Law Judge, the Commission will thereafter render a decision on Robynn Silberg's petition for Commission review of the decision and order of the Worker's Compensation Administrative Law Judge.

The parties are allowed 30 days within which to file with the Commission comment on the Commission's proposal to take notice of those documents and further argument on the applicant's petition for review from the Worker's Compensation Administrative Law Judge's decision.

Dated and mailed June 7, 1991.
ND � 8.29

Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

NOTE: On reconsideration, the Commission has preliminarily determined that it is implicitly authorized by section 102.18 (3), Stats., to take notice of records of the Department to which it has access, but that this should be preceded by notice to the parties that the Commission intends to so take notice as well as opportunity for the parties to comment on the Commission's proposal that it take notice of such documents. The Commission has therefore identified those limited portions of the applicant's unemployment compensation claims history file of which it intends to take notice, and the parties are hereby being provided with an opportunity to state their positions on the matter.

[subsequent commission decision]

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