LORI A KITELINGER, Applicant

J B I INC, Employer

TRANSPORTATION 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 makes the following:

The applicant filed an application seeking compensation relating to a June 26, 2002 injury to the bilateral hands/wrists, upper back, neck and upper extremities. The medical records attached to her hearing application include a diagnoses right wrist pain, from "right intersection syndrome," which at least some doctors stated was caused by the applicant's work exposure.

The matter was scheduled to be heard on April 20, 2005. That morning, the applicant called the presiding ALJ and the counsel for the employer and insurer (collectively, the respondent) asking to withdraw the application. The respondent's attorney objected to the request for withdrawal, and wanted to go forward with the hearing. It asked if the application was dismissed, that it be done with prejudice so the claims could not be brought again.

The ALJ issued her decision based on the department's files and letter briefs from the parties. She dismissed most of the applicant's claims with prejudice, noting in some instances that there was no support for the claim and in other instances that the burden on the respondent of having to prepare twice to defend against the claim justified a with prejudice dismissal.

In her decision, the ALJ acknowledged that the normal practice is for the department only to dismiss claims with prejudice after the statute of limitations has run or if a hearing has actually started and witness sworn in. However, the court of appeals has held that applicants do not have the right withdraw at any time for any reason, Baldwin v. LIRC, 228 Wis. 2d 601, 616-18, 599 N.W.2d 8 (Ct. App. 1999), and that the department and the commission have the discretion to dismiss claims with or without prejudice on default for failure to appear depending on the facts involved. Id., at 228 Wis. 2d 620.

After the ALJ's decision, the applicant's attorney withdrew from her representation when he changed employers. She has now retained new counsel, who filed the petition for review in her behalf.

In this case, the commission concludes a dismissal without prejudice as to all claims is warranted. This not a case, as in Baldwin, where an applicant's motion to withdraw was denied, and then the applicant refused to appear at the ensuing hearing on the merits. The commission does not suggest that a "with prejudice" dismissal should be limited to that situation (or situations where testimony has been taken or the statute of limitations has run.) See: Baldwin, at 228 Wis. 2d 619-20. Nor does the commission lightly regard a last-minute request to withdraw a hearing application. However, after reviewing the facts, the commission cannot conclude that the respondent's inconvenience in having to prepare twice to defend supports finally denying the applicant's claims without further opportunity to be heard.

In dismissing the applicant's hearing application on all claims without prejudice, however, the commission reiterates the ALJ's statement that if the applicant chooses to pursue the dismissed claims, she must file a new application that identifies her specific claims, the date of injury applicable to each claim, and the medical support for each claim.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part. The application for hearing is dismissed on all claims without prejudice.

Dated and mailed January 30, 2006
kitelil . wrr : 101 : 1  ND § 8.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Thomas Siedow
Attorney Mary E. Hughes

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