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

THOMAS E BRUEMMER, Applicant

STROH BREWING CO, Employer

AMERICAN MOTORISTS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2002-034179


Stroh Brewing Company and American Motorists Insurance Company (respondents) submitted a petition for commission review alleging that the default order issued by the administrative law judge on June 4, 2003, should be set aside. Briefs have been submitted by the parties. At issue is whether the issuance of the default order was a reasonable exercise of the discretionary authority granted in Wis. Stat. § 102.18(3).

The commission has carefully reviewed the administrative record in this proceeding, and hereby sets aside the default order and remands the matter to allow the filing of a new amended application. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


On August 12, 2002, the department received the applicant's application for hearing claiming an occupational deafness injury with the date of injury being the applicant's last day of work on "10-1999." The employer was named as Stroh Brewing and the insurance carrier as "unknown."

On August 16, 2002, notice of the application was sent to Stroh Brewing and to Employer's Mutual Casualty Company, which the department identified as the insurer on the risk in October of 1999.

On September 13, 2002, Employer's Mutual wrote back to the department and asserted that its insurance policy covered only Stroh's clerical employees, not its production employees (the applicant was a production employee).

On October 24, 2002, the department received from applicant's counsel a copy of the notice of application on which counsel penned a handwritten request that the injury date be amended to "8-15-99," and that the insurer on the risk be amended to Kemper/American Motorists (KAM). No reason was given for the proposed amendment nor was a copy sent to Stroh Brewing.

On October 28, 2002, the department sent out a new notice of application listing Stroh Brewing as the employer and KAM as the insurer. On March 6, 2003, the department sent a letter to KAM advising it that an answer should be filed or a default order could be issued. On April 1, 2003, an administrative law judge faxed a handwritten notice to KAM stating: "File an answer now." On April 28, 2003, the applicant's attorney wrote to the ALJ requesting the issuance of a default judgment against Stroh Brewing/KAM.

On June 4, 2003, the ALJ issued a default order against Stroh Brewing/KAM for the claimed compensation. The order was interlocutory for future medical expense.

As respondents point out in their petition, the applicant's amended application did not state any reason for the requested amendment. Neither did the applicant send a copy of the document requesting the amendment to Stroh Brewing. Wisconsin Administrative Code § DWD 80.08 provides:

"Amendment may be made to the application or answer by letter mailed to the department prior to the date the notice of hearing is mailed. Copies of the letter shall be sent directly to the other parties. The letter shall state reasons for the amendment."

The failure to state the reason for the requested amendment was particularly troubling from a due process standpoint, because the amendment changed the date of injury and the insurer on the risk. Given the applicant's attorney's failure to follow the proper procedure for amending the application, the amendment should not have been approved by the department. Of course, KAM should not have failed to respond to the new notice of application mailed to it by the department on October 28, 2002, if only to protest the validity of the amendment. However, that failure is secondary to the applicant's failure to follow the required procedure for filing an amended application. Accordingly, it was not a proper exercise of discretion to issue the default order on June 4, 2003.

Now, therefore, this

ORDER

The default order issued by the administrative law judge on June 4, 2003, is set aside. The matter is remanded to the department to allow the applicant the opportunity to file a proper amendment to his original application of August 12, 2002. The applicant shall have 30 days from the date of this order to file such amendment.

Dated and mailed May 7, 2004
bruemth . wpr : 185 : 9  ND § 8.7  § 8.8 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


cc: 
Attorney Douglas Johnson
Attorney James W. Goonan


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