THOMAS C. W. PAINE, Applicant

SCHOONOVER MOTORS & TRAVEL EQUIPMENT INC., Employer

GENERAL CASUALTY COMPANY OF WISCONSIN, Insurer

The employer and its insurance carrier submitted a petition for Commission review alleging error in the Administrative Law Judge's Order issued on October 14, 1988. The applicant submitted an answer to the petition.

The Department file in this matter indicates that the applicant sustained a conceded work injury to his left shoulder on October 23, 1985. The insurance carrier paid certain periods of temporary total disability, medical expense, and is paying or has paid 11 percent permanent partial disability. On July 6, 1988, the parties reached a compromise agreement whereby the applicant would settle the remainder of his claim for the lump sun of $5,500. The compromise was submitted to the Administrative Law Judge, who on July 22, 1988, wrote a letter to the parties rejecting the compromise for reasons set forth in that letter.

On August 4, 1988, the applicant's attorney wrote to the Administrative Law Judge, indicating that for various reasons he believed the compromise offer was a good one and the applicant desired to accept it. On August 24, 1988, the judge wrote a letter to both parties suggesting that the compromise be transformed into a limited compromise. He suggested that the $5,500 be taken to represent temporary total disability to date, vocational retraining to date, and the balance due for 15 percent permanent partial disability at the shoulder. He further suggested that this limited compromise be drafted to permit the applicant to claim additional permanent partial disability, if in the future it became apparent that such additional disability had been sustained. He suggested that each party get back to him within 15 days to let him know if this limited compromise could be accomplished. Applicant's attorney replied on September 1, 1988, indicating that he had no problems with the judge's suggestions. On September 16, 1988, the insurance carrier wrote to the judge and indicated that its attorney would be in touch shortly. The attorney did not contact the judge prior to October 14, 1988, when the judge issued an order "affirming" the "limited compromise" under the terms he had suggested in his letter of August 24, 1988.

Counsel for the employer and insurance carrier protests this order in the petition, noting that neither the employer nor its insurer ever agreed to the "limited compromise" as suggested by the judge. Counsel for the insurance carrier should have responded to the Administrative Law Judge's suggestions in a prompt fashion. Almost one full month passed between the letter of September 16, 1988, and the judge's order on October 14, 1988. Nevertheless, the Commission concludes that under the circumstances, the judge exceeded his discretionary powers by effectively ordering a limited compromise which one side to the dispute had never agreed to accept. The judge did not warn the employer/insurer that an order would be forthcoming if a response was not received by a certain date.

Therefore, pursuant to authority granted in section 102.18(3), Stats., the Commission hereby sets aside the Administrative Law Judge's order of October 14, 1988. and remands the matter to the Department for further attempt at compromise. If compromise cannot be reached then the matter should be set for hearing.

Dated and mailed March 15, 1989
ND § 10.3

Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

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