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

TRIXIE MELIN, Applicant

GREGORY & COOK CONSTRUCTION INC, Employer

ZURICH AMERICAN INS OF IL, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-016600


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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 28, 2005
melintr . wsd : 101 : 1   ND § 5.11

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

On June 23, 2004, ALJ James O'Malley issued a decision awarding primary compensation in the amount of $7,139.70 plus a 10 percent assessment for inexcusable delay in payment of $713.97. The employer and its insurer (respondent) appeal, contending they have paid all compensation due and have no idea why ALJ O'Malley believes additional compensation is due.

The commission believes ALJ O'Malley's order is the result of the respondent's failure in making payment to take into account the escalated TTD rate for periods of renewed temporary disability under Wis. Stat. § 102.43(7). Under that statue, escalated rates are required whenever an employee has a renewed period of TTD occurring more than 2 years after the date of injury, and has returned to work for at least ten days in the interim. Special rules apply to TTD paid during periods of vocational rehabilitation.

In this case the applicant's date of injury is August 23, 1998, and she had a break in TTD benefits between 2000 and 2002. The payment of temporary partial disability establishes that she returned to work for at least ten days. According to a letter the Worker's Compensation Division sent to the insurer on January 22, 2004, the department calculated the insurer's TPD/TTD liability for certain periods between March 2, 2002 and July 13, 2003 to be $7,189.741 (1)  more than the insurer paid for those periods. It is evident from the department's January 22, 2004 letter, and from the material submitted on appeal by the respondent, that the department used escalated -- that is higher -- TTD rates for periods at issue than the insurer did.

Further, the respondent had adequate notice of the department's use of the escalated rates, but did not dispute them when it received DWD's January 22, 2004 letter demanding payment on the escalated rate. The respondent did not respond to that letter, and the respondent was warned in the letter that a nonresponse or nonpayment within 30 days would result in a default order. (2)  This justifies not only the default order under Wis. Stat. § 102.18(1)(a) itself, (3)   but also the penalty for inexcusable delay under Wis. Stat. § 102.22(1).

cc:
Attorney Daniel D. Hannula
Attorney Edward W. Stewart



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Footnotes:

(1)( Back ) The commission realizes ALJ O'Malley's order shows a slightly different, lower amount outstanding ($7,139.50) than the department's January 22, 2004 letter ($7,189.74).

(2)( Back ) See Enus Brown v. Select Staff and Firemans Fund Insurance Company, claim no. 89-043390 (LIRC, July 2, 1990).

(3)( Back ) The department has the authority to order payment of compensation on default without a hearing, even though no formal application for hearing has been filed, under certain circumstances. Wis. Stat. § 102.17 (2); Valentine v. Industrial Commission, 246 Wis. 297, 300-01 (1944).

 


uploaded 2005/05/02