Wis.LIRC WC Decision: Brantner, Kevin - March 23, 2001 - ND � 8.18 - Hearing Procedure; Location and Notice, � 8.19 - Right to Further Hearing - employer failure to appear at hearing - employer's assumption that insurer would appear and defend at hearing on � 102.35(3) issue was not "excusable neglect"; however, order set aside and remanded where applicant might have misstated weekly wage

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

KEVIN BRANTNER, Applicant

BRICK OVEN BAKERY INC
LEHMAN'S BAKERY, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1999-011909

ORDER

Pursuant to authority granted in Wis. Stat. � 102.18(3), the commission hereby sets aside the administrative law judge's Findings and Interlocutory Order issued in this matter on October 31, 2000, and remands it to the department for opportunity for new hearing with regard to the issue of unreasonable refusal to rehire under Wis. Stat. � 102.35(3).

The employer's argument that it was merely excusable neglect for it to have concluded that the insurance carrier would defend it against the applicant's claim under Wis. Stat. � 102.35(3), is rejected. The employer was fully and fairly apprised of its responsibilities by the department's GL33 letter dated July 29, 1999. In addition, the employer's argument that the applicant did not make a prima facie case for unreasonable refusal to rehire is rejected. The applicant demonstrated that he had sustained an injury arising out of and in the course of his employment, and that he was subsequently denied continued employment. It then became the employer's burden to show reasonable cause for not continuing his employment. West Bend Co., v. LIRC, 149 Wis. 2d 110, 123, 438 N.W. 2d 823(1989).

However, the employer has submitted documents to the commission supporting its assertion that the applicant misstated or misrepresented his actual weekly wage at the hearing held on May 9, 2000. It also appears that the applicant's part-time wage was expanded to a full-time wage to reach the claimed wage figure of $260.00 per week. The normal expansion of part-time wage to full-time wage is not applicable to claims under Wis. Stat. � 102.35(3), which calls for a penalty not to exceed "one year's wages." See Muhbash-Shir Muhammed II, WC Claim No. 95002415 (LIRC May 8, 1997).

Given the fact that the commission has concluded that this matter should be remanded for further hearing concerning the wage issue, it has exercised its discretion to allow a new hearing with respect to all aspects of the claim under Wis. Stat. � 102.35(3). The commission prefers to avoid default orders whenever reasonably possible.

Dated and mailed March 23, 2001
brantke . wpr : 185 : 8 ND � 8.18 8.19

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc:
Attorney Daniel J. Kelley
Attorney Elaine Sutton Ekes

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