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


COREY W FRENCH, Applicant

WESTERN TEMPORARY SERVICES, Employer

TRAVELERS INDEMNITY OF IL, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94041080


REMAND ORDER

On April 17, 1996, an administrative law judge with the Worker's Compensation Division in the Department of Workforce Development (the department) issued his findings and order in this matter. Pursuant to sec. 102.18 (3), Stats., the Labor and Industry Review Commission sets aside the findings and order of the administrative law judge, and remands this matter to the same administrative law judge for further hearing and another decision on the application for hearing.

Dated and mailed September 30, 1996
frencco.wpr : 101 : 0  ND  8.18

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer and its insurer (collectively the respondent) failed to appear at the March 11, 1996 hearing in this case. Following the hearing, the presiding ALJ issued a decision in the applicant's favor. Thereafter, the respondent requested the ALJ to set aside his order and allow further hearing or, failing that, that the request be treated as a petition for commission review.

The respondent's request has been treated as a petition for commission review. Included with the request is an affidavit from the respondent's attorney, Thomas J. Niemiec, setting out the following factual scenario: On October 10, 1995, Attorney Niemiec, filed a Notice of Retainer with the department on behalf of the respondent. He later sent several other documents to the department in the respondent's behalf. However, when the department sent out its Notice of Hearing on March 11, 1996, copies were sent only to the applicant, his attorney, the insurer and the employer. No copy was sent to respondent's Attorney Niemiec.

Section 102.18 (1)(a), Stats., authorizes the department to issue decisions in workers compensation cases by default. The court of appeals has affirmed the practice of the department to issue decisions on a hearing at which only the applicant appears on the theory that the non-appearing respondent is in default. County of Juneau v. LIRC and Skalak, court of appeals case no. 84-1746, district IV unpublished decision (October 24, 1985).

However, a non-appearing party may be entitled to relief in the form of further hearing if his or her failure to appear was the result of excusable neglect. Auclair v. LIRC and Friendly Village, Inc., court of appeals case no. 83-836, district III unpublished decision (May 22, 1984). Excusable neglect is that neglect that might have been the act of a reasonably prudent person under similar circumstances. Auclair, slip opinion at 3, and Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 451, 468 (1982). Excusable neglect is not the same as neglect, carelessness or inattentiveness. Id.

For the purposes of determining whether to remand for hearing on a failure to appear issue, the first step is to assume that statements offered by the non-appearing party to explain its failure to appear are true, unless something in the record makes them appear inherently incredible. The next step is to consider whether, if believed, the statements establish that the failure to appear was from "excusable neglect" (that is, an act or omission that could have been made by a reasonably prudent person under similar circumstances.) If the statements, even if believed, do not meet that standard, remand is unnecessary; the commission simply denies further hearing. If the stated explanation for the failure to appear does show excusable neglect, the commission may either remand for hearing to determine the accuracy of the stated explanation or simply remand for hearing on the application.

In this case, there is no real dispute as to the accuracy of the statements made in the affidavit of Attorney Niemiec. The department's file indicates that it was notified that Attorney Niemiec represented the respondent before the hearing notice was sent, but no copy of the notice was sent to him. The real issue here is whether this explanation establishes excusable neglect for the respondent's failure to appear.

The applicant contends that the respondent has not shown excusable neglect. He points out that the insurer and the employer each received their copies of the notice, even though their attorney did not; that they should have known from those notices that the hearing was scheduled and that a default could result on their failure to appear; and that they could have told from the "cc" line that their attorney did not receive a copy of the notice. In addition, the statutes do not require that a copy of hearing notice be sent to a party's attorney, but only to the party's last-known address. Section 102.17 (1)(a), Stats.

However, the fact remains that parties have a right to representation by counsel. Section 102.17 (1)(c), Stats. Moreover, the commission has previously accepted a party's late petition when its attorney's copy of a decision was sent to the wrong address. The facts were somewhat different (1), but the commission did state:

". . . the employer contends that a copy of the administrative law judge's decision was mailed to the applicant, and thus the statute was complied with even if the applicant's attorney never received his copy. However, a strong argument could be made that once a party appears by attorney in a worker's compensation case, the party's last-known address for the purposes of the legal proceedings arising from that case could reasonably be considered to be his or her attorney's address. Certainly, when an applicant hires an attorney to represent him or her in a worker's compensation claim, he or she may reasonably understand that a copy of any decision will be sent to that attorney who will take further action on the decision, whether to appeal it, defend it against an appeal or simply explain it to the applicant."

Toni L. Palmer v. Toro Company, WC claim no. 86012679 (LIRC, June 10, 1993), opinion at page 3.

The commission therefore concludes that, under the facts of this case, after Attorney Niemic filed a notice of appearance on behalf of a party, the department's failure to send him a hearing notice excuses the respondent's failure to appear at hearing. The commission cannot conclude that a reasonably prudent person in the position of the employer or the insurer in this case would proof-read a hearing notice to make sure its attorney got a copy.

In sum, it is one thing when a hearing notice is mis-addressed or not delivered because a party fails to provide a correct address or follow-up on an address change. See Raymond Podgorski v. ABB Paint Finishing, Inc., WC claim no. 95035783 (LIRC, August 29, 1996). It is another thing where, as here, the department does not follow its normal practice of mailing an attorney of record a notice of hearing. Accordingly, the commission finds excusable neglect here and remands for hearing on the merits.

cc: ATTORNEY DAVID M ERSPAMER
ERSPAMPER LAW OFFICE

ATTORNEY THOMAS J NIEMIEC
BASSFORD LOCKHART TRUESDELL & BRIGGS PA


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Footnotes:

(1)( Back ) For one thing, the attorney's copy was mis-addressed, not simply omitted altogether.