Wis.LIRC WC Decision: Webb, Danna - March 18, 2005 - ND � 8.9 - Dismissal of Application; Default Order for non-response - employer ignored demands for payment, application for hearing, and department letter - asserted, after ALJ issued order, that it had never been on risk and also that applicant had already been fully paid - while no excuse offered for employer's failures to respond, would be unjust to penalize it if that was true

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

DANNA M WEBB, Applicant

HOOVER UNIVERSAL INC, Employer

PACIFIC EMPLOYERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-005066

ORDER
Pursuant to authority granted in Wis. Stat. § 102.18(4)(c), the commission hereby sets aside the administrative law judge's order issued in this matter on November 1, 2004, and remands the matter to the department for opportunity for hearing. Pacific Employers Insurance Company has asserted that it was not on the risk for the alleged work injury occurring on September 13, 2001. It further asserts that prior to the issuance of the department order, the insurer who was on the risk, together with the employer, timely made all payments due the applicant. These assertions were recounted in a letter sent to the applicant's attorney dated February 22, 2005.

The applicant responded to Pacific Employer's late petition with a brief arguing that the department order should not be set aside because Pacific Employers failed to timely respond to that order (filed a late petition), it failed to respond to a December 2004 letter from applicant's attorney requesting immediate payment, and it failed to timely submit an answer to the January 2005 hearing application for nonpayment penalties. The applicant's arguments point out that Pacific Employers was remiss in this matter by not timely responding to the department's order or to the applicant's application and correspondence. While no excuse has been offered for this culpable behavior, the commission cannot overlook the alleged fact that it was department error that began this entire controversy in the first place. If as alleged, Pacific Employers was never on the risk for the applicant's injury, and the applicant timely received all compensation due for the injury, it would simply be unjust to attach any penalty to Pacific Employers for a matter in which it should never have been involved. Accordingly, if the facts are as alleged by Pacific Employers, the commission would exercise its discretion not to assess any penalty and not to uphold an order requiring Pacific Employers to pay compensation that was previously paid to the applicant. If the facts are not as alleged by Pacific Employers, the department retains authority to reissue an appropriate order that could include penalties.

Dated and mailed March 18, 2005
webbda . wpr : 185 : 8 ND � 8.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney James G. Budish
Attorney Jeffrey J. Klemp

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uploaded 2005/03/25