JEREMY W WEIHBRECHT, Employee

CUSTOM EXTERIORS, Employer-Applicant
GERALD SCHOOL

WIS WC UEF, Insurer
c/o GALLAGHER BASSETT SERVICES INC

This matter arises from the "reverse application" of Gerald School, doing business as Custom Exteriors. On November 21, 2005, a pre-hearing conference was held before an administrative law judge (ALJ) of the Department of Workforce Development, Worker's Compensation Division (the department.) Mr. School did not appear at the pre-hearing conference.

By order dated November 28, 2005, the ALJ found that Mr. School had received notice of the pre-hearing conference, so that his failure to appear at the pre-hearing conference was a ground for default of his reverse application. Accordingly, the ALJ dismissed Mr. School's reverse application with prejudice, with the effect of conclusively determining that Jeremy Weihbrecht was the employee of Gerald School doing business as Custom Exteriors as of the date of injury, and that Gerald School was subject to the Wisconsin Worker's Compensation Act at that time.

On December 15, 2005, the department received a facsimile transmission from Mr. School in which he requested a petition for review, and stated that he had not known about the pre-hearing conference held on November 21, 2005. Mr. School's December 15, 2005, facsimile transmission has been accepted as a timely petition for commission review of the ALJ's findings and order.

In his petition, Mr. School stated that because he himself had requested the hearing, he would have appeared at the pre-hearing conference if he had been aware of it. He suggested that the pre-hearing conference notice might have been mis-addressed, noting that other correspondence concerning the case had been mis-addressed. He stated his correct address is 9839 Lillian Drive, Suring WI 54714.

In fact, in his separate application seeking disability compensation, Mr. Weihbrecht listed the "employer" as "Custom Exteriors, 830 North Street." This address was used by Gerald School for Custom Exteriors in a check and a 1099-MISC issued to Mr. Weihbrecht. However, the department sent at least some correspondence in this case, including the notice of Mr. Weihbrecht's separate application, to Custom Exteriors, Tim Rau and Ben Brown, 800 North Street, rather than Custom Exteriors, Gerald School, 830 North Street.

When the department became aware that Messrs. Rau and Brown were not involved in this case, it dismissed them as parties by order dated July 12, 2005. Subsequently, on October 6, 2005, the department sent the pre-hearing conference notice at issue here to

"CUSTOM EXTERIORS
 GERALD SCHOOL
 830 N ST
 SURING WI 54714"

The ALJ's November 2005 decision, which dismissed Mr. School's reverse application based on his failure to appear at the pre-hearing conference, was sent to that address as well.

The commission is aware that "N" is common abbreviation for "North," that Mr. School received the ALJ's November 2005 decision even though it, too, was addressed to "N ST" instead of "North ST;" that Suring is -- according to the 2005-2006 Wisconsin Bluebook -- a village of approximately 600 people; and that the address Gerald School used in his business dealings with Mr. Weihbrecht was the 830 North Street address, not the 9839 Lillian Drive address which Mr. School now provides in the transmission serving as his petition for review. Nonetheless, the use of "N" Street rather than "North" Street coupled with Gerald School's assertion that he did not get the pre-hearing conference notice leads the commission to conclude that Mr. School did not receive adequate notice of the pre-hearing conference in this case. It shall therefore set aside the ALJ's November 28, 2005 default order.

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

The findings and order of the administrative law judge are set aside. The matter is remanded to the department for further appropriate action.

Dated and mailed February 28, 2006
weihbre . wpr : 101 : 8  ND § 8.9  § 8.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Michael H. Gillick
Attorney Jeffrey J. Strande

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