Wis.LIRC WC Decision: Schultz, Irvin - January 12, 2001 - ND � 8.9 - Dismissal of Application; Default Order for non-response - default order for 25% bad faith / inexcusable delay penalty for not complying with earlier order confirming compromise, is set aside where default order was not sought by applicant, who has advised the department of the non-payment but who had contemplated only that hearing would be held on the issue and who did not oppose respondent's request for an opportunity for hearing on the penalty issue

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

IRVIN G SCHULTZ, Applicant

DOWNEY PATRICK DRYWALL, Employer

UNITED SECURITY INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000017945

ORDER
The insurer filed a petition for commission review alleging error in the administrative law judge's order contained in her letter dated November 13, 2000 assessing a penalty for delay in payment under Wis. Stats. 102.22 (1). The commission has reviewed the record and correspondence in this matter and pursuant to the authority granted in Wis. Stat. § 102.18 (4) hereby sets aside the administrative law judge's order and remands to the department for a hearing on the applicant's claim for undue delay in payment and bad faith.

Dated and mailed January12, 2001
schulir . wpr : 175 : 3 ND � 8.9

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION
The administrative law judge issued an order affirming a compromise agreement between the parties on October 9, 2000, providing for payment to the applicant as well as attorneys' fees within ten days from the order. The applicant's attorney wrote to the department on November 3, 2000 indicating that payments had not been paid as of November 3, 2000 pursuant to the administrative law judge's order, and requested a 25 percent penalty pursuant to Wis. Stat. § 102.18 (1)(a) including a claim for bad faith and inexcusable delay in making payments. The applicant did not request a default order and in fact the applicant's letter presumes that a hearing would be held and that certain documents submitted would be received into evidence. The insurer filed a petition for commission review dated December 1, 2000, indicating that the administrative law judge's default order was in error and that the employer and insurer were not allowed the benefit of hearing in this matter, and requested that the order of November 13, 2000, be reversed and set for hearing. The applicant's attorney filed an answer to the petition stating that the applicant believed that the insurance carrier is merely attempting to delay the inevitable but stated that the applicant would not resist the insurer's request that the order of November 13, 2000, be set aside, and that this matter be set for hearing with respect to the penalty claims requested by the applicant. Under these circumstances the commission finds that it is appropriate that the administrative law judge's default order on November 13, 2000 be set aside and the matter be remanded to the department for hearing on the applicant's claim of inexcusable delay in payment as well as bad faith, to provide the parties an opportunity to present all the relevant facts and evidence to appropriately resolve the applicant's claim.

cc: ATTORNEY STEVE M JACKSON
PARRONI SIEDOW JACKSON SC

ATTORNEY LINDA D KIEMELE
BORGELT POWELL PETERSON & FRAUEN SC

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uploaded 2001/07/16