KIRBY E JESKE, Applicant

MCDERMID SALES & SERVICE INC, Employer

WEST BEND MUTUAL INSURANCE CO, Insurer

The applicant filed an injury report for a work-related injury with McDermid Transportation on November 17, 1999. The department sent a letter to McDermid Sales and Service on April 17, 2000, indicating that it appeared that there was a delay in payment and requesting the employer to respond within 30 days with an explanation for the delay in payment, and notifying the employer that if it failed to respond a default order would be issued. The department subsequently issued a default order to McDermid Sales and Service on August 29, 2001. The employer, McDermid Transportation, filed a timely petition for commission review which was received on September 4, 2001. The administrative law judge issued a subsequent order on September 10, 2001, setting aside his previous order on the basis that the prior order assessing the penalty was issued in error. This order is null and void since the department lacked jurisdiction to issue any order in this matter once the petition for commission review had been received on September 4, 2001, and the commission gained jurisdiction. However, the commission agrees with the administrative law judge that his initial order was issued in error since it involved the wrong employer and will be set aside. NOW, THEREFORE, this

The administrative law judge's default order dated August 29, 2001, assessing a penalty for inexcusable delay in payment is hereby set aside.

Dated and mailed November 19, 2001
jeskeki . wpr : 175 : 8    ND § 8.32  § 9.2 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

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uploaded 2001/12/03