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

CURTIS L VOGEL, Applicant

KOTTWITZ ELECTRIC MOTORS, Employer

AMERICAN HARDWARE MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89062446

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed April 30, 1996
vogelcu.wsd : 101 :  ND § 8.17  § 8.18

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

1. Generally.

Following a hearing at which only the applicant appeared, the ALJ found the employer violated sec. 101.11, Stats., and 29 CFR 1910.133. (1) Based on his findings, the ALJ increased the applicant's compensation award by 15 percent under sec. 102.57, Stats.

The employer and the insurer have filed separate petitions for review. Both seek another hearing, alleging inadequate notice of the first hearing which neither attended. (2)

2. The insurer's failure to appear.

On this issue, the insurer points out that it was not named as a party in the ALJ's decision and that it was not sent a copy of that decision. The commission agrees that the ALJ's decision should have named the insurer, given its potential liability under sec. 102.57 and 102.62, Stats. More importantly, a copy of that decision should have been sent to the insurer. However, the fact remains that the ALJ's decision was not mailed until after the hearing. Stated another way, errors in the ALJ's decision issued after the hearing do not retroactively excuse the insurer's failure to appear at the hearing on which the decision was based. (3)

The document most relevant to a party's failure to appear at hearing is the "Notice of Hearing." The hearing notice in this case was dated September 6, 1995, several weeks before the October 19, 1995 hearing. The notice lists the insurer as a party to whom the notice was sent.

The insurer has evidently seen a copy of the hearing notice. (4) The insurer should therefore know it was listed as an intended recipient. The insurer's petition does not deny that it received a copy of the hearing notice. The commission must therefore conclude that the insurer in fact received the hearing notice.

In sum, the insurer had notice of the hearing, and still failed to appear. Its request for further hearing based on the irregularities in the ALJ's decision issued after the hearing is denied.

3. The employer's failure to appear.

Leonard Kottwitz files a petition asserting that he did not receive a notice to appear. Instead, the notice was sent to "Kottwitz Electric Motors" on Water Street in Watertown. Although Mr. Kottwitz does not mention it in his petition, the insurer explains that "Kottwitz Electric Motors Inc." is insolvent, out-of-business, and has sold out to a successor, Kottwitz Electric Motors.

On this record, the commission is not certain whether Mr. Kottwitz' position is that he should have received notice personally as the employer because "Kottwitz Electric Motors" is the trade name of Leonard Kottwitz as an individual, or that he should have received notice on behalf of Kottwitz Electric Motors as its agent or representative. For its part, the insurer points out that the notice of the hearing and the order were sent to "Kottwitz Electric Motors," instead of "Kottwitz Electric Motors Inc." and implies that this was somehow incorrect.

The law requires the department to send the notice of hearing to a party's last-known address. Section 102.17 (1)(a), Stats. For the employer, this appears to be the Water Street address to which the notice of hearing was sent. This is the address shown on the employer's answer to the application on the underlying claim filed in October 1994.

The department's files contain no letter from the employer or its successor specifically informing the department of an address change, or even using a different address. Nor does Leonard Kottwitz or the insurer claim that the department was ever notified of an address change. To the contrary, the files contain a WC-13 supplemental report filed by the insurer as recently as August 25, 1995 using the same name and address for the employer as shown in the notice of hearing sent out less than two weeks later.

Finally, the commission is not inclined to grant additional hearing because the notice of hearing did not name both "Kottwitz Electric Motors" and "Kottwitz Electric Motors Inc." The difference is trivial, at least for notice purposes. Again, the commission notes that the hearing notice uses the name as given in the answer to the application on the underlying loss and in the WC-13 supplemental report. If the insurer and employer used the "wrong" name in their answer and reports filed with the department, the commission cannot find that it somehow prejudiced the employer for the department to use the same "wrong" name in the notice of hearing.

In sum, the employer's notice was sent to its last known address in the name the department reasonably believed accurately identified the employer. The employer is not entitled to further hearing on a claim of failure of notice.

4. The merits of the safety claim.

This leaves the merits of the case. Federal regulations, as adopted by the department, required that persons doing the type of task the applicant was doing at the time of his injury wear protective eye or face equipment, and that the employer make such equipment available. See: 29 CFR 1910.133 and footnote 1 of this decision. The only testimony at the hearing was that the employer neither provided protective equipment to the applicant for this task (although safety glasses were provided for other tasks) nor required its workers to wear protective equipment for this task until after his injury. On this record, the only reasonable conclusion was the one reached by the ALJ.

cc: LEONARD S KOTTWITZ
1138 RIVER DR

ATTORNEY KENT I CARNELL
LAWTON & CATES SC

ATTORNEY HUGH E RUSSELL
KASDORF LEWIS & SWIETLIK SC

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Footnotes:

(1)( Back ) 29 CFR 1910.133 has been adopted by the department of industry, labor and human relations (DILHR) by administrative rule. Section 101.055 (3)(a), Stats., allows DILHR to adopt federal occupational safety regulations by reference. Under that authority, DILHR has specifically adopted 29 CFR part 1910. See sec. Ind 32.50-1 (table), Wis. Adm. Code.

(2)( Back ) Section 102.18 (1)(a), Stats., authorizes the department to issue decisions in workers compensation cases by default. The court of appeals has affirmed the practice of LIRC and DILHR to issue decisions on a hearing at which only the applicant appears on the theory that the non-appearing respondent is in default. County of Juneau v. LIRC and Skalak, court of appeals case no. 84-1746, district IV unpublished decision (October 24, 1985). However, a non-appearing party may be entitled to relief in the form of further hearing if his or her failure to appear was the result of excusable neglect. Auclair v. LIRC and Friendly Village, Inc., court of appeals case no. 83-836, district III unpublished decision (May 22, 1984). Excusable neglect is that neglect that might have been the act of a reasonably prudent person under similar circumstances. Auclair, slip opinion at 3, and Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 451, 468 (1982). Excusable neglect is not the same as neglect, carelessness or inattentiveness. Id.

(3)( Back ) The fact that the insurer was not named as a party in the ALJ's decision, and the insurer's allegation that it did not receive a copy, would probably excuse a late appeal from that decision. But both the insurer and the employer filed timely petitions for review in this case.

(4)( Back ) The insurer points out in its petition that the hearing notice was served on Kottwitz Electric Motors.