REBECCA FORBES, Applicant

SCHNEIDER NATIONAL CARRIERS INC, Employer

SCHNEIDER NATIONAL CARRIERS INC, Insurer

Pursuant to authority granted in Wis. Stat. § 102.18(4)(c), the commission hereby sets aside the department order issued in this matter on August 29, 2001, on the grounds of mistake. The order allowed the applicant to obtain a certain medical report and submit it with a new application for hearing within 120 days of the date of the order. The 120 days expired on October 25, 2001. On November 7, 2001, the department appears to have received an e-mail from the applicant which indicated that she had been "trying for weeks" to obtain a hearing application form from the department, but had not received a response after twice leaving her name and address with a department answering service, and after twice being put on hold when she had telephoned long distance. She further indicated that she had received a medical report "a few days" after the expiration of the 120-day period.

The department, which never issued an order subsequent to August 29, 2001, apparently has deemed the applicant's application to be dismissed with prejudice, because she missed the 120-day deadline for submitting a new application for hearing. However, the department' s order did not provide any explanation for the exercise of discretion which called for dismissal of the application with prejudice as of October 25, 2001. No subsequent department order was issued. Furthermore, the applicant submitted an alleged explanation to the department for missing the 120-day deadline.

Sound reasons must exist for the discretionary dismissal of any application for hearing, and those reasons must be articulated. The commission herein makes no finding with regard to the soundness of the department's reasons for its action in this matter, but it does find error in a dismissal made without reviewable explanation. Accordingly, the department's order is set aside and the matter is remanded to the department for exercise of its discretion under Wis. Stat. § 102.18(1)(a), with respect to whether the applicant is entitled to another opportunity for hearing, and for an order explaining its decision. The applicant and the respondents each shall have the right to petition the commission for review of such order.

Dated and mailed January 7, 2002
forbere : 185 : 8  ND § 8.9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: Attorney Robert H. Zilske

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2002/01/16