[NOTE: LIRC no longer accepts petitions for review in cases such as this. See, Michael E. Lawrence, Nov. 19, 1997.]
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
STEPHEN GORSKI, Applicant
CRANBERRY LAKE CORP, Employer
COMMERCIAL UNION INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 96027611
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 February 26, 1997
gorskst.wsd : 101 : 8 ND § 8.9
Pamela I. Anderson, Chairman
Richard T. Kreul, Commissioner
David B. Falstad, Commissioner
The applicant filed an application for hearing in May 1996. The employer answered in July 1996, denying the injury was compensable. A prehearing conference was scheduled for December 18, 1996, but the applicant failed to appear at the prehearing conference. The attorney for the employer and the insurer (collectively, the respondent) did appear, and filed a report from an independent medical examiner.
According to the respondent, when it became apparent that the applicant was not going to appear, the ALJ told the respondent's attorney he intended to dismiss the case "without prejudice." The attorney requested a "with prejudice" dismissal. However, the ALJ went ahead with a "without prejudice" dismissal.
On petition for commission review, the respondent contends it has been prejudiced by the applicant's failure to prosecute his claim, and that it has been unable to obtain medical releases from the applicant. It also asserts that it has been forced to go to the expense of preparing to defend against his claim; this assertion is undeniable. The respondent again requests a "with prejudice" dismissal, so that the applicant is not rewarded for his lack of diligence.
In general, dismissals with prejudice are rare, and limited to situations where testimony has been taken or the statute of limitations has run. (1) Moreover, while the commission has the authority to review an ALJ's decision to dismiss a case "with prejudice" or "without prejudice," it generally defers to an ALJ's discretion in that area. (2) The commission appreciates the respondent's position; however, the ALJ properly issued a "without prejudice" dismissal under the department's consistent practice in this type of case.
cc: ATTORNEY JOSEPH BERGER
OTJEN VAN ERT STANGLE LIEB & WEIR SC
(1)( Back ) Neal & Danas, Worker's Compensation Handbook, sec. 8.8 (3d ed. 1990).
(2)( Back ) In Douglas Mortenson v. Paul Bugar Trucking, WC case no. 94005130 (LIRC, August 31, 1995), the commission reversed a "without prejudice" dismissal and issued a "with prejudice" dismissal instead. In that case, the applicant failed to appear at the hearing, failed to explain his nonappearance, failed to ever submit any expert evidence to support his claim, and failed to respond to the employer's PCR to LIRC requesting with prejudice dismissal. Most significantly, in that case the employer introduced into the hearing record the treating doctor's opinion that there was no work injury. By contrast, the case now before the commission is at the pre-hearing stage, not the hearing stage. A "with prejudice" dismissal is more appropriate when an applicant fails to appear at a hearing, as opposed to missing a pre- hearing, particularly where the appearing employer introduced into the hearing record a medical opinion from the employe's own physician that there is no work injury.
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