KEVIN J ZIEBARTH, Applicant

DODGEVILLE TIRE & SERVICE CTR, Employer

UNIVERSAL UNDERWRITERS INS 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
ziebake . wsd : 175 : 4  ND § 8.6 § 8.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer's insurer contends in its petition for commission review the administrative law judge erred in entering a default error awarding the applicant temporary total disability benefits and permanent partial disability benefits for a work-related back injury. The employer's attorney states that he was out of the office from March 25, 2005 to April 4, 2005, and the information concerning the applicant's claim, including the application for hearing, was not forwarded to his office until March 31, 2005 and he was first able to file an answer on April 7, 2005. The administrative law judge issued her default order on April 4, 2005.

Information in the file indicates the applicant's attorney wrote a letter to the employer on August 21, 2002 notifying the employer of the applicant's claim for a work-related back injury, and requesting the employer to pass on the notice of the claim to its insurer. The applicant's attorney also wrote a letter dated July 9, 2003 notifying the employer's insurer of the applicant's claim and requested immediate payment of his medical bills for his work-related back injury. The employer and its insurer did not respond to these letters. On December 15, 2004, the department served the application for hearing, filed by the applicant on November 26, 2004, with the employer and its insurer. The insurer did not file an answer. On January 31, 2005, the department sent a letter to the employer's insurer notifying the insurer that an answer had not been timely filed, and notified the insurer to file an answer within 20 days from the date of the letter, and failure to do so may result in the department issuing a default order. The insurer failed to file an answer in response to the department's letter dated January 31, 2005. The department sent a subsequent letter to the insurer on March 9, 2005, again notifying the insurer that an answer had not been filed, and requested the insurer to file an answer within 20 days. The department notified the insurer that failure to file an answer within 20 days may result in a default order. The insurer failed to file an answer within the time limit specified by the department.

The insurer has not provided any reasonable explanation for its failure to file a timely answer in this matter. The insurer was given several opportunities to file an answer, but failed to do so. The information in the file does not indicate the insurer did not receive the applicant's application for hearing and the subsequent requests to file an answer, but simply ignored these requests. The fact that the insurer's attorney was out of the office from March 25, 2005 through April 4, 2005 does not provide any explanation for the insurer's failure to file a timely answer subsequent to December 16, 2004. The commission agrees with the administrative law judge that the medical evidence submitted from the applicant's treating physicians support the applicant's claim for an occupational back condition as a result of his work for the employer. The administrative law judge appropriately awarded the applicant temporary total disability benefits from June 12, 2001 to December 4, 2003 as well as 30 percent permanent partial disability to the body as a whole, and entered an interlocutory order in this matter. The evidence does not indicate the administrative law judge abused her discretion in entering a default order in this matter.

cc:
Attorney Robert P. Ochowicz
Attorney Ronald N. Walker

Note: This decision was modified in part by an Order dated October 21, 2005, which set aside the monetary amount due the applicant and remanded the matter to the department for further appropriate action to recalculate the amount due taking into account a social security reverse offset.  The underlying period of TTD and the PPD award were not modified or changed.

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uploaded 2005/08/29