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

LOUIE ZABALA, Applicant

STANLEY STEAMER, Employer

AMERICAN MANUFACTURERS MUTUAL, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-035551

On December 7, 2005, the department issued a default order awarding compensation attributable to the applicant's alleged work injury to his left knee, allegedly occurring on May 12, 2001. On December 28, 2005, the insurance carrier faxed a letter to the department disputing the default order.

The threshold issue is whether this faxed letter constitutes a timely petition for commission review, pursuant to Wis. Stat. § 102.18(3). If the petition is found to be timely, the issue arises as to whether or not the insurance carrier had good cause for failing to timely answer the application for hearing.

The commission hereby sets aside the default order and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The faxed letter from the insurance carrier was received by the department within the statutory appeal period of 21 days from the date of the department's order (see Wis. Stat. § 102.18(3)). The letter disputed the default order on the basis that the insurance carrier had never received a copy of the applicant's application for hearing, nor had it received other correspondence regarding the applicant's claim, other than the default order of December 7, 2005.

The commission has routinely accepted written communications addressed to the department, but disputing a department order, as petitions for commission review. Wis. Admin. Code ch. LIRC 1.025 allows petitions to be faxed, and Wis. Admin. Code ch. LIRC 3.01 allows the department to receive petitions on behalf of the commission. Accordingly, the commission finds that the insurance carrier's faxed letter of December 28, 2005, constituted a timely petition for commission review.

The next question is whether the petition contains sufficient reason(s) for remanding the matter to allow the insurance carrier to present evidence that it did not receive a copy of the application or subsequent department correspondence. Unless there is objective indication that such correspondence was received, for due process reasons, the commission remands such matters to allow opportunity to present evidence of the alleged non-receipt. In this case, there is no objective evidence in the file to refute the insurance carrier's assertion of non-receipt, and therefore the commission will remand the matter to the department for opportunity for hearing on the issue of alleged non-receipt. Should the department find that the insurance carrier did not receive the application for hearing and subsequent correspondence from the department, good cause shall be granted for the failures to respond to the application and correspondence, and a hearing and decision on the merits shall be had. Should the department find that the insurance carrier did timely receive the application and correspondence, the default order may be reinstated.

NOW, THEREFORE, this

REMAND ORDER


The default order issued by the department on December 7, 2005, is set aside. The matter is remanded to the department for opportunity for hearing and decision in accordance with the above findings.

Dated and mailed February 23, 2006
zaballo . wpr : 185 : 8  ND § 8.8   § 9.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney James Goonan
Attorney David Weir

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