JERRY G SMITH, Applicant

FABCO EQUIPMENT INC, Employer

THE INSURANCE COMPANY OF STATE

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 December 19, 2001
smithje . wsd : 175 : 8  ND § 8.8

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employer contends that the administrative law judge erred in entering a default order because the applicant's claim was not supported by the evidence submitted prior to the hearing on August 7, 2001. The employer points to the fact that the applicant's application for hearing alleges a date of injury of October 2, 1997, but that the default order concerns an alleged injury date of April 21, 1997. However, although on the face of the applicant's application for hearing the applicant indicated in box 38 that the date of injury was October 2, 1997, in the narrative portion of the application there is a reference to the automobile accident on April 21, 1997, as the date of injury. Wis. Admin. Code § DWD 80.05(2) provides that the adverse party shall file an answer to the application for hearing with the department within 20 days after the service and likewise serve a copy of the answer on the party making application. The regulation provides that if no answer is mailed by the employer within 20 days of mailing by the department, the department may issue an order by default without hearing. In addition, Wis. Admin. Code § DWD 80.08 provides that amendments to the application for hearing may be made by letter mailed to the department prior to the date the notice of hearing is mailed, and copies of the letter shall be sent directly to the other parties.

The employer and its insurer provide no explanation or reasonable excuse for failing to file an answer in this case, or for failing to appear at the hearing. If the employer and insurer disagreed with the date of injury listed on the application for hearing, the employer merely had to check box number one on the answer and deny that the accident alleged in the application actually occurred on or about the time claimed. Instead, apparently the employer believed that a mistake had been made on the application for hearing and it could take no action at all when an answer was required.

In addition, the applicant was warranted in filing his amendment to the application for hearing on February 9, 2001, several months before the hearing notice went out in May 2001, under the provisions of Wis. Admin. Code § DWD 80.08. The employer and insurer do not deny that they received the applicant's amendment, but simply state that there is no documentation that an amended application was served upon the employer and insurance carrier. In its initial brief, the employer and insurer do not indicate that they did not receive the hearing notice or the application for hearing, but point to defects in the dates contained in those documents. It is only in the reply brief that the employer and insurance carrier now contend that they never received a copy of the application for hearing or any other notice sent by the department regarding the applicant's claim. The commission does not find the employer's assertions in the reply brief to be credible. None of the materials sent to the employer and its insurer were returned to the department and they were mailed to the correct address.

The administrative law judge was authorized to issue a default order pursuant to the Wisconsin Administrative Code regulations requiring that an answer be provided within 20 days or a default order may issue. In addition, the hearing notice contains instructions that if a party fails to appear that a default order may issue. Therefore, the employer and its insurer had sufficient warning that if it failed to answer or appear that a default order could issue. The applicant made a timely amendment to his application for hearing to correct the date of injury, and the date is corroborated by his physician's WC-16-B which lists an injury date of April 21, 1997. In addition, the narrative portion of the application for hearing put the employer on notice that the applicant was claiming a date of injury due to an automobile accident on April 21, 1997.

As to the employer's contention that the administrative law judge erred in awarding medical expenses for a right shoulder injury, the medical notes clearly indicate in several instances that the applicant suffered bilateral shoulder problems following the automobile accident while working on April 21, 1997. However, the applicant is only claiming permanent disability as to his left shoulder injury as substantiated by Dr. Grace's medical report. The medical notes dated September 25, 1997, indicate that the applicant was involved in a motor vehicle accident in April 1997, and sustained bilateral shoulder injuries. The applicant's initial report on April 21, 1997, immediately following the work incident noted that the applicant has some tenderness and irritation in the left shoulder with some limited range of motion with abduction and external rotation and moving, and he also has some crepitus and irritation with flexion, extension and rotation of the shoulders.

The employer presents along with its reply brief, a copy of an independent medical examination that it had done on December 7, 1998, which purports to contest that the applicant's right shoulder symptoms were related to the automobile accident in April 1997. However, if the employer wanted to contest the claim it should have made an answer or at least appeared at the hearing where it could have presented such evidence and had it entered into the record. However, the employer failed to appear at the hearing and failed to provide any reasonable excuse for failing to do so. Based on the evidence presented at the date of hearing and given the fact that the employer failed to file an answer in this case, and also failed to appear at the hearing, the commission finds that the administrative law judge appropriately entered a default order in this case awarding the applicant ten percent permanent partial disability to the left shoulder as a result of his work injury on April 21, 1997, and additional treatment expenses.

cc: 
Attorney Debra R. Mancoske
Attorney Peter M. Silver

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