KATHLEEN JOHNSON, Applicant

AMERICAN BUDGET INN HURLEY, Employer

MILWAUKEE MUTUAL INSURANCE COMPANY, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed November 28, 2001
johnska . wsd : 175 : 8   ND § 8.9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant asserts in her petition for commission review that the administrative law judge erred in dismissing her application for hearing with prejudice in a default order. The applicant has been given repeated opportunities to present medical documentation to support her claim. The applicant's first two applications for hearing were dismissed without prejudice for failure to provide medical documentation. The applicant subsequently filed an application for hearing in 1997 and indicated that she would be ready for hearing at any time, but failed to provide any further medical documentation for her claim. Dr. Garvey's initial WC-16-B simply checked the box no for any work-related causation due to a traumatic injury as the applicant had claimed, or due to an aggravation beyond normal progression. Dr. Garvey's subsequent WC-16-B in 1999, simply checked the box yes for an aggravation beyond normal progression without any discussion or explanation for why he had changed his opinion. Dr. Garvey clearly indicated in 1996 that he did not believe that the applicant's work for the employer had aggravated her condition beyond its normal progression, but that her reason for back problems and surgery were due to her degenerative condition from 1970 through 1993. The commission finds that the applicant has not presented medical documentation to support her claim although given repeated opportunities to do so.

The applicant's attorney did not present any explanation why he was not able to meet the original 90-day deadline to obtain Dr. Garvey's deposition or any other medical documentation to support the applicant's claim. The applicant was not ready for her initial hearing in September 2000, despite the fact that it was more than two years after her original application for hearing when she said she would be ready for hearing at any time. Subsequently, given another 30-day grace period in February and March 2001, the applicant again did not present medical documentation but simply asked for further delay.

The applicant contends that the administrative law judge had no legal authority to order a dismissal with prejudice in this case. However, Wis. Stat. § 102.18(1)(a) specifically provides that an application may be disposed of by default without hearing, and it is not limited to defaults without prejudice. In past cases the department has been given broad discretion in dismissing cases with prejudice. In this case the applicant had been warned that if she failed to provide medical substantiation and produce a prima facie case, her claim would be dismissed with prejudice, and she failed to meet the guidelines and timelines presented. The applicant has not provided any explanation to establish good cause or a reasonable basis for failing to promptly prepare for hearing or present a prima facie case or medical documentation, even though she has been given several years, and several opportunities to file the proper medical documentation.

The administrative law judge appropriately cited the case of Baldwin v. LIRC, 228 Wis. 2d 601 (1999) to support his findings that a dismissal with prejudice is appropriate in this case. The administrative law judge appropriately noted that the timeline in this case particularly with the applicant's failures to act and her tardiness demonstrated precisely the kind of conduct for which the Wisconsin Legislature in its wisdom authorized the department to issue a default order. Under the circumstances the commission finds that the administrative law judge appropriately dismissed the applicant's claim with prejudice.

cc: 
Attorney Marvin E. Marks
Attorney David A. Piehler

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uploaded 2001/12/03