JEFFREY A WISCHER (Dec'd), Employee
c/o TRISH WISCHER
WILLIAM R DEGRAVE (Dec'd), Employee
c/o MARGERY DeGRAVE
JEROME STARR (Dec'd), Employee
c/o RAMONA DULDE-STARR
MITSUBISHI HEAVY INDUSTRIES AM INC, Employer
Mitsubishi Heavy Industries (Mitsubishi) seeks commission review, under Wis. Stat. § 102.18(3) and (4)(c), of an October 4, 2001 letter from Administrative Law Judge James O'Malley of the Department of Workforce Development, Worker's Compensation Division, which stated that he was keeping the cases dealing with the Mitsubishi's liability to the employees under Wis. Stat. § 102.57 in "not-ready" status.
Because the commission lacks jurisdiction to review ALJ O'Malley's decision to keep the cases in "not-ready" status, the petition for commission review must be dismissed.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The petition for review is dismissed.
Dated and mailed November 29, 2001
wischer . wpr : 101 : 9 ND § 8.32 § 8.33 § 9.2
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
Mitsubishi asserts that ALJ O'Malley's letter is in fact an "order," and that LIRC has jurisdiction to review the matter both under Wis. Stat. § 102.18(3), (1) under which a party may petition for review orders which grant or deny compensation, and also under the one-year statute, Wis. Stat. § 102.18(4)(c), (2) which permits LIRC to set aside awards of examiners based on mistake or newly-discovered evidence.
ALJ O'Malley's October 4, 2001 letter does not award or deny compensation. The letter is, in effect, a scheduling order, and does not finally decide a compensation issue. The commission has consistently declined to review scheduling orders, such as orders granting or denying postponement requests. Consequently, the commission does not have authority under Wis. Stat. § 102.18(3) to review ALJ O'Malley's October 4, 2001, letter keeping the cases in "not-ready" status.
Nor does the commission have jurisdiction under Wis. Stat. § 102.18(4)(c) to review the decision on the grounds of mistake of fact or law. First, LIRC's authority under Wis. Stat. § 102.18(4)(c) is limited to final orders of the commission or examiners. While there may be some question as to which orders are "final," it seems reasonable to conclude that ALJ O'Malley's decision to keep the cases in "not-ready" status is not final.
Nor does the commission see a mistake of fact or law. The courts have recognized that Wis. Stat. § 102.17(1)(a) gives the WC Division express authority to control its calendar and manage its internal affairs, (3) and its decisions in this regard are entitled to deference. Baldwin v. LIRC, 228 Wis. 2d 601, 599 N.W.2d 8 (Ct. App. 1999).
Mitsubishi argues that, because the law requires the Worker's Compensation Division to serve a notice of hearing when an application is filed (Wis. Stat. § 102.17(1)(a)), and because the use of "shall" is mandatory rather than directory, ALJ O'Malley's refusal to schedule a hearing as Mitsubishi requested was an error. However, ALJ O'Malley did not refuse to hear the case in the sense of dismissing it without a hearing; rather he deferred the issue for later hearing. While Mitsubishi asserts that the case "theoretically" could be deferred permanently, the commission declines to find error based on the record at this point. In short, the statutory requirement that issues raised in application be heard is not the same as requiring that they be heard immediately, or at the time one party wants the issues heard. This seems especially true, given the authority of the Worker's Compensation Division, recognized in case law, to control its own calendar.
cc:
Trish Wischer
Margery DeGrave
Ramona Dulde-Starr
Attorney Virginia M. Antoine
Attorney Mark S. Young
Attorney Daniel A. Rottier
Attorney David P. Lowe
Attorney Michael L. Bertling
Attorney Robert T. Ward
Attorney Patrick J. Knight
Attorney William R. Sachse, Jr.
Attorney William P. Croke
Appealed to Circuit Court. Appeal dismissed October 15, 2002.
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(1)( Back ) 102.18(3) A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's findings and order to the party's last-known address. The commission shall dismiss a petition which is not timely filed unless the petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control. If no petition is filed within 21 days from the date that a copy of the findings or order of the examiner is mailed to the last-known address of the parties in interest, the findings or order shall be considered final unless set aside, reversed or modified by the examiner within that time. If the findings or order are set aside by the examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the examiner the time for filing a petition commences with the date that notice of reversal or modification is mailed to the last-known address of the parties in interest. The commission shall either affirm, reverse, set aside or modify the findings or order in whole or in part, or direct the taking of additional evidence. This action shall be based on a review of the evidence submitted.
(2)( Back ) 102.18(4)(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and, after further consideration, do any of the following: 1. Affirm, reverse or modify, in whole or in part, the order or award. 2. Reinstate the previous order or award. 3. Remand the case to the department for further proceedings.
(3)( Back ) Wis. Stat. § 102.17(1)(a) provides in part: "...The hearing may be adjourned at the discretion of the department, and hearings may be held at such places as the department designates."
uploaded 2001/12/03