Wis.LIRC WC Decision: Zastrow, Robert - July 24, 2003 - ND � 8.16 - Impleading Additional Parties � 9.2 - Petition for Review - No jurisdiction over a respondent's petition for LIRC to review ALJ's order dismissing other respondents from a proceeding without prejudice - not an order "awarding or denying compensation" - Bearns case distinguished - petitioner can try to persuade department to implead the other respondents - if unsuccessful, petitioner's due process rights can be exercised at hearing by presentation of evidence it is not liable

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ROBERT J ZASTROW, Applicant

UNIVERSAL BRIXIUS INC, Employer

WAUSAU GENERAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-025230

Petitioner Universal Brixius, Inc. / Zurich American Insurance Company (hereinafter petitioner) submitted a petition for commission review alleging error in the administrative law judge's order which dismissed, without prejudice, the claim against Universal Brixius, Inc. / Wausau General Insurance Company (respondents). Petitioner asserts that it constituted error for the administrative law judge to issue this dismissal.

The commission reviewed the petition for commission review dated June 4, 2003, the answer to the petition, and the petitioner's responsive letter dated July 10, 2003. The commission has concluded that no briefs will be required, because it does not have jurisdiction to review ALJ Kaiser's order dated May 14, 2003, wherein he dismissed the respondents from the proceeding without prejudice.

Because the dismissals were without prejudice, no compensation was awarded or denied, thus leaving the commission without jurisdiction over the petition which has been filed in this matter. (1 )

In arguing against the applicability of Wis. Stat. § 102.18(3) to this case, petitioner asserts that ALJ Kaiser's order disposes of the entire matter in litigation. Citation is made to Bearns v. DILHR, 102 Wis. 2d 70, 306 N.W.2d 22 (1981), in support of that argument. In Bearns, the commission issued a final order awarding five percent permanent partial disability to the injured applicant. The applicant appealed that order to the circuit court, which in turn set aside the commission's order and remanded it to the commission for further proceedings. In holding that this decision was appealable, the Supreme Court noted that when the circuit court set aside the commission's order awarding compensation, it disposed of the entire matter in litigation. Id. at 76. The case is not analogous to the matter at hand, because no final order was issued in this matter with respect to the respondents.

Petitioner's assertion that respondents could be liable for the applicant's claim(s) under Chapter 102, should lead the petitioner to present to the department any additional evidence it may have in support of that assertion. If the petitioner cannot persuade the department to implead the respondents, then the petitioner's due process rights may be exercised at the administrative hearing by the presentation of evidence demonstrating that it is not liable for the applicant's claim(s). Normally, the department is very receptive to impleading parties, who under any reasonable, preliminary assessment of the asserted facts, could be found liable. It certainly behooves the department to have all the potentially liable parties at one hearing. Of course, the department may conclude that there is no reasonable basis for including certain parties, which is apparently what occurred in this case. Again, the hearing procedure should give the petitioner full and fair opportunity to demonstrate that it is not liable; and if the petitioner is found not liable, the applicant may find it necessary to request additional hearings involving other parties.

All the commission could do at this point would be to speculate as to the department's judgment and the petitioner's judgment concerning who should or should not be included as a party. No formal hearing has yet been held in the matter and therefore no record exists for the commission to review. The commission recommends that the petitioner provide the department with any additional evidence it currently has, which might lead the department to conclude that any of the parties previously dismissed without prejudice should be impleaded. Regardless of whether or not the department agrees, the petitioner must present its best evidence at hearing. If the decision is not in its favor, that would be the appropriate time to petition to the commission.

NOW, THEREFORE, this

ORDER

The administrative law judge's order, which dismissed the respondents from this proceeding without prejudice, is affirmed.

Dated and mailed July 24, 2003
zastrro3 . wrr : 185 : 2 ND � 8.16 � 9.2

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Thomas K. Mullins
Attorney Paul M. Erspamer
Attorney J. Patrick Condon
Attorney John T. Thul
Attorney Peter M. Silver
Attorney Craig B. Nichols

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Footnotes:

(1)( Back ) Wis. Stat. � 102.18(3) provides in relevant part:

"(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." (emphasis added).

uploaded 2003/07/28