DAVID G GREGORY, Applicant
USF HOLLAND INC, Employer
USF HOLLAND INC, Insurer
The employer submitted a petition for commission review alleging error in the administrative law judge's default order dated November 2, 2001. At issue is whether a default order was properly entered in this matter.
The commission has carefully reviewed the entire record in this matter and hereby sets aside the findings and order below and substitutes the following therefor:
The applicant suffered a work related knee injury on June 1, 1999. The department sent the employer a letter dated April 3, 2001, indicating that its records showed that a delay in payment had occurred, and that a penalty of $54.81 was due to the employee, and that the employer should respond with payment or an explanation as to the reason for the delay. It does not appear that the employer sent a direct response to the department's letter of April 3, 2001. Subsequently the department issued a default order on November 2, 2001, holding that the applicant had suffered a work injury on June 1, 1999, and that the first payment of compensation was not made until August 15, 2000. The order found that the employer was guilty of inexcusable delay in payment and assessed a penalty of $54.81.
The employer states in its petition for commission review that compensation was not paid untimely as there was no compensable lost time in this claim until June 24, 2000, at which time the applicant was scheduled for a second opinion on behalf of the employer and compensation benefits were paid accordingly. The department had also sent the employer a letter dated August 7, 2001, concerning permanent partial disability payments due. In response to that letter the employer sent a letter dated August 23, 2001, which included a computer printout of temporary total disability payments made beginning on July 14, 2000. The employer indicated in its letter that the applicant had not missed any work for his June 1, 1999, injury until June 24, 2000, and payments began promptly on July 14, 2000, for that wage loss. It appears that the employer promptly reported the applicant's injury to its insurer on June 1, 1999, and there is nothing in the file to indicate that the applicant's first lost time for his work injury was anything other than June 24, 2000. A WKC-13 dated March 9, 2001, indicates that the applicant's last day at work was June 23, 2000, and that he was off of work for 14 weeks and four days.
The commission finds that subsequent to the department's letter on April 3, 2001, the employer provided information in a letter dated August 23, 2001, indicating that it had made payment promptly beginning on July 14, 2000, for the applicant's first lost time from work on June 24, 2000. This information is consistent with the employer's contention in its petition for commission review that compensation was paid timely as that there was no compensable lost time in this claim until June 24, 2000. Therefore it appears that the employer has offered a reasonable explanation for any delay in payment, since the employer is alleging that in fact that there was no delay since the applicant did not have any lost time from work due to his work injury until June 24, 2000. It also appears that the employer provided this information to the department prior to the issuance of the default order on November 2, 2001. Therefore, under these circumstances the commission finds that the department's default order should be set aside and the matter remanded to the department for a hearing on whether the employer inexcusably delayed payment to the applicant.
The findings and order of the administrative law judge are set aside and the commission's findings and order are substituted therefore. The matter is remanded to the department for a hearing on the merits of the inexcusable delay in payment issue.
Dated and mailed January 31, 2002
gregoda . wrr : 175 : 3 ND § 8.9
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
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