STACEY L EJNIK, Applicant

ANCHOR FOOD PRODUCTS, Employer

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 March 28, 2003
ejnikst . wsd : 175 : 1  ND § 8.8  § 8.32  § 8.9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in entering a default order in this matter. The employer submitted two affidavits indicating that it had good cause for failing to file an answer, and for failing to appear at the hearing. The employer contended that its failure to file an answer and failure to appear were due to excusable neglect. The affidavits indicate that the employer, Anchor Foods, was acquired by McCain Foods on September 4, 2001. The affidavit states that Mr. Guzik, who was the human resource manager at Anchor Products before and after the acquisition, and was the individual responsible for handling the applicant's worker's compensation matter, became ill on December 28, 2001, and did not recover from his illness and return to work, but rather retired in March 2002. The affidavits state that the human resource specialist and the occupational health nurse did not have any knowledge as to the existence of any worker's compensation claim asserted by the applicant at any time until the employer received the administrative law judge's default order dated September 9, 2002.

However, the applicant's notice of hearing which notified the employer of the possibility of a default order was sent to the employer on July 16, 2002 and was not returned by the post office. The department also sent the employer a letter dated November 28, 2001 informing the employer the applicant had filed an application under Wis. Stat. § 102.35(3) alleging an unreasonable refusal to rehire. The department's letter informed the employer that its worker's compensation insurance carrier had no responsibility to defend or pay this potential claim and that a formal hearing would be scheduled in due course. The letter stated that if the employer had any questions to contact the department. In addition, the applicant's personnel file with the employer contained a copy of the application for hearing filed on October 29, 2001, putting the employer on notice that such a claim had been filed. The personnel file also admittedly contained the letter from the department dated November 28, 2001. The affidavit from Ms. Moua, the employer's human resource specialist, states the employer believed upon review of the personnel file that the insurer was handling or would be handling any issues related to the matter. However, the department's letter dated November 28, 2001, clearly states that the employer's insurer had no responsibility to defend or pay this claim for an unreasonable refusal to rehire.

The department's letter dated November 28, 2001, would have been received by Mr. Guzik far in advance of his leave of absence at the end of December 2001. The applicant's personnel file also contained the application for hearing filed on October 29, 2001. Yet the employer took no action to file an answer or to respond to the department with questions even though it received both the notice of claim and the application for hearing well in advance of Mr. Guzik's leave of absence.

Even though the employer changed ownership the mailing address remained the same, and there is no indication the employer had any difficulty in receiving its mail from the department. It appears from the record the employer was simply negligent in noting the terms of the compromise agreement, which specifically provided that the applicant may maintain a claim for unreasonable refusal to rehire. Further, the employer was negligent in ignoring the application for hearing in October 2001 and the notice from the department which informed the employer of the claim for unreasonable refusal to rehire, and the fact that the employer's insurer was not responsible for defending the claim.

While it was unfortunate that Mr. Guzik became ill, there were other members of the employer's human resources department who were available to respond to the department or to ask questions. Although the employer makes reference to the fact that the applicant's personnel file was lost in the transition from Anchor Foods to McCain Foods, someone with the employer obviously received the application for hearing and hearing notice and put these materials into the applicant's personnel file because the affidavit indicates that once the personnel file was located these documents were contained therein. Therefore, someone who received the materials for the employer failed to read them properly and take the appropriate action required by these notifications.

The employer has not established excusable neglect for its failure to appear at the hearing. The applicant established that he was employed with the employer and suffered a work injury and was released to return to work and was terminated by the employer. Therefore, the applicant established a prima facie claim for unreasonable refusal to rehire which was not rebutted. Given the fact the notice of hearing was sent to the proper address and it was not returned by the post office, and given the employer's failure to appear in this matter, the commission finds that the administrative law judge appropriately entered a default order in this matter.

cc: 
Attorney Michelle L. Danielson
Attorney Peter Nelson

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