BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


DALE A. KRAUS, Applicant

REPCO, Employer

AMERICAN MUTUAL OF BOSTON, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88-067182


The respondent submitted a petition for Commission review alleging error in the Administrative Law Judge's order issued on March 21, 1990. At issue is whether the respondent is liable for the payment of treble compensation pursuant to section 102.60 (3), Stats.

Having carefully reviewed the entire record in this matter, the Commission has concluded, for the reasons set forth in the attached memorandum opinion, that the Administrative Law Judge's order must be set aside.

NOW, THEREFORE this

ORDER

The order of the Administrative Law Judge dated March 21, 1990 is set aside, and this matter is remanded to the Worker's Compensation Division.

Dated and mailed July 2, 1990
ND 8.9

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

Section 102.60 (3), Stats. provides that when an injury is sustained by a minor illegally employed, compensation shall be treble the amount otherwise recoverable, if the minor is under permit age and is illegally employed. In his decision, the Administrative Law Judge recited (although he did not formally describe as a finding of fact) that "it appears that the injured worker on the date of the injury of November 2, 1988 was injured at employment prohibited under Industry Regulation 70.06 (17)". However, the file in this matter contains no evidence that this is so. No hearing was ever held at which evidence could have been introduced on that question, and there was thus no way for the Commission to carry out the statutory mandate of sec. 102.18 (3), Stats., that its action on a petition for review "shall be based on a review of the evidence submitted". No application for hearing was ever filed which so asserted. No other materials are present in the file which, even though not received at a hearing, the Commission could legitmately take official notice of, and which would support the assertion of fact made by the Administrative Law Judge. Before the Commission will be inclined to affirm an order imposing a penalty such as this, there must be something in the file before it which tends to establish that the order is justified. Schoener v. G & R Transport and American Insurance Co. (Claim No. 87-055955, LIRC, March 13, 1990 . This file is inadequate in that respect. Therefore, no finding can be made that the applicant was injured while employed in prohibited employment as a minor. The order is thus insupportable.

NOTE: While the respondent was advised by the Department in writing that it believed that the employe was a minor who had been injured while illegally employed and that liability had to either be denied or treble compensation be paid, and while the respondent failed to either pay the treble compensation or to respond to the Department's letter by denying liability, this would not provide an adequate basis on which to issue the order on review herein on the theory (which was in any event not relied on by the Administrative Law Judge) that there had been a "default" warranting issuance of an order without hearing pursuant to section 102.18 (1)(a), Stats. The conduct of the respondent, in apparently intentionally ignoring the Department's correspondence, is regrettable. However, the Commission cannot find that respondent knew that it was thereby courting a default order. The letter which was sent to the respondent did not in any fashion warn that an order would be issued against it on a default basis if it did not pay the treble compensation or, alternatively, respond to the Department denying liability within a certain specified period of time. Where there is no adequate warning of the potential for the issuance of a default order, issuance of such an order is an unreasonable exercise of discretion. Luedke v. Lakewood Filters, Inc. and Fireman's Fund Ins. Co. (Claim No. 89-040356, LIRC, 3/27/90)

cc:
Harry N. Loeb, Attorney
Loeb and Ching, S.C.

110 : CD0157


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