JEFF J TIENOR, Applicant

J S J CUSTOM BUILDERS, Employer

ACUITY INSURANCE CO, Insurer

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.

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

Dated and mailed August 24, 2005
tienoje . wsd : 175 : 1  ND § 8.6  § 8.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission the administrative law judge erred in determining the division's file materials establish a factual basis supporting the applicant's claim the employer violated Wis. Stat. § 102.35(3) and awarded the applicant one year's lost wages. The employer states the applicant was injured due to his own negligence, and he neglected to call the employer when he was finished with his therapy. However, a review of the file materials indicates the employer failed to file an answer to the applicant's claim although given several opportunities to do so. In addition the department sent the employer a notice of pre-hearing dated October 26, 2005. The applicant appeared at the pre-hearing but the employer failed to appear. The information on the pre-hearing which was not returned by the United States Post Office indicates that failure to appear as scheduled may result in a decision by default under Wis. Stat. § 102.18(1)(a). There is no indication the employer did not receive notice of the pre-hearing, and the employer does not indicate in its petition for commission review it did not receive notice of the pre-hearing scheduled for June 7. 2005. The employer has not provided any reasonable explanation for its failure to appear at the pre-hearing.

The information presented at the pre-hearing established the applicant was injured at work and subsequently laid off by the employer on December 8, 2002, and was not given any reason for the layoff although the employer had work available, and the applicant was the only person laid off. The commission agrees with the administrative law judge that the division's file materials establish a factual basis supporting the applicant's claim that the employer violated Wis. Stat. § 102.35(3). The administrative law judge appropriately awarded the applicant one year's lost wages in the amount of $31,200.00.

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uploaded 2005/08/29