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


RICHARD L PETERS, Applicant

AARROW ELECTRIC CASTINGS, Employer

VIRGINIA SURETY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93068348


The insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on September 6, 1996. The applicant submitted an answer to the petition. At issue is whether the insurance carrier inexcusably delayed payment of a compromise order, within the meaning of sec. 102.22 (1), Stats.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order.

The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On July 6, 1995, Administrative Law Judge Thomas M. Landowski issued an Order approving a compromise agreement between the parties. The Order called for a payment to the applicant, a payment to applicant's attorney, and a payment to a restricted bank account, all to be made within ten days from the issuance of the Order. The insurance carrier received this Order on July 11, 1995, and it was routed to one of its senior claims representatives, Sue Wisner, for disposition.

Ms. Wisner had returned from a six-week maternity leave on July 10, 1995, and could not recall when she first saw the Order. However, she did recall that on Friday, July 14, 1995, she gave the Order to a claims technician who makes out checks. She told the claims technician that the Order needed to be paid that day, but did not follow up on the matter. The claims technician had checks made out to the applicant and his attorney on Monday, July 17, 1995, and mailed on July 18, 1995. Due to a processing problem the check to the restricted account was not made out until July 18, 1995, and was mailed on July 19, 1995.

Not counting Sunday, July 16, 1995, the tenth day after ALJ Landowski's Order was July 17, 1995. Therefore, the checks were mailed one day late to the applicant and his attorney, and two days late to the restricted account. (1) The question before the commission is whether these one-day and two-day delays constituted inexcusable delay under sec. 102.22 (1), Stats. Inexcusable delay means without a bona fide justification or motivation. This is not to be determined by hindsight, but by a realistic appraisal of the facts at the time of the delay. Milwaukee County v. ILHR Department, 48 Wis. 2nd 392, 399, 180 N.W. 2nd 513 (1970).

The administrative law judge determined that the delay was inexcusable because it was caused by administrative inefficiencies, and the commission agrees that administrative inefficiency does not constitute bona fide justification for delay. However, the delay in this case was of exceedingly short duration, and the applicant did not demonstrate that such delay caused him any actual harm. While the commission does not condone any delay in payment of a department order, the facts and circumstances of this case lead the commission to conclude that the short delay was excusable. Accordingly, the application will be dismissed.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are reversed. The application for a penalty against the insurance carrier under sec. 102.22 (1), Stats., is dismissed.

Dated and mailed November 25, 1996
peterri.wsd : 185 : 8  ND 7.24

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission's reversal of the administrative law judge's decision was done as a matter of law. No question of credibility or demeanor entered into the decision.

cc: ATTORNEY JOHN B EDMONDSON
EDMONDSON LAW OFFICE

SUSAN WISNER
SR CLAIM REPRESENTATIVE
UNITED HEARTLAND


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Footnotes:

(1)( Back ) The applicant asserted that all the payments should have been made to him "in person," in accordance with his interpretation of sec. 102.26 (3)(a), Stats. However, the intent of that statute is to provide that unless the deparment has directed payment of an attorney's fee directly to the attorney, payment of all compensation shall be made directly to the claimant (see the explanatory END NOTE 85 appended to this statute in the department pamphlet Worker's Compensation Act of Wisconsin). There is no requirement that payments be hand delivered rather than mailed.