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


JANET CRAN, Applicant

UFE INC, Employer

AMERICAN MOTORISTS INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 92029355, 94001877


An administrative law judge (ALJ) for the Workers Compensation Division of the Department of Industry, Labor and Human Relations 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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed May 25, 1995
ND 8.9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The applicant applied for a hearing on January 7, 1994. On September 26, 1994, the workers compensation division sent out Notice of Hearing scheduled for November 17, 1994. The applicant's attorney contacted the division by letter dated October 10, 1994, requesting a postponement because "we have now learned that Ms. Cran needs to be scheduled for further diagnostic tests, including specifically a chemical challenge test [and t]here is no possibility the testing and complex evaluation can be completed before the hearing date."

The division responded by letter from James T. O'Malley on October 19, 1994. Mr. O'Malley stated that he would not postpone the hearing, and suggested that the applicant ask the administrative law judge presiding at the hearing for an interlocutory order to reserve jurisdiction on unresolved claims. The administrative law judge assigned to the case was Andrew M. Roberts.

On November 15, 1994, ALJ Roberts and the attorneys for the parties conferred by telephone. The applicant's attorney admitted that he did not have sufficient medical support to support the applicant's claim for compensation. He asked that the application be dismissed, without prejudice, so that he could have the "challenge test" done and obtain an expert opinion supporting her claim. The attorneys for the insurers objected to a dismissal without prejudice.

ALJ Roberts informed the applicant's attorney that his request for dismissal without prejudice would be denied, and that the hearing would go forward. The applicant's attorney then asked for a chance to submit a brief explaining why the "challenge test" could not be done before the hearing. A briefing schedule was set, and briefs were submitted.

On January 20, 1995, ALJ Roberts issued a written decision. After reviewing the facts of the case, he dismissed the application with prejudice. He concluded that to do otherwise would be an abuse of process and prejudicial to the insurers and employer.

The applicant petitioned for review. Her attorney argues that ALJ Roberts erred in finding prejudice to the insurers and employer. He also states that neither insurer had gotten an independent medical examiner, and had done nothing besides get copies of the medical records, prior to her request for a postponement. The applicant's attorney also noted the matter was only pending for nine months between the time the application for hearing was filed and the hearing was scheduled. He concludes that the matter was simply not yet ready for hearing, emphasizing the complexity of the medical diagnosis.

The insurers respond that the applicant is trying to litigate twice a claim that should not have been brought once. They also contend that they were in fact prejudiced by the expense of hiring counsel to defend against the hearing application.

The commission does not believe that this case must necessarily turn on whether the insurers would be "prejudiced" by having to incur additional expense as the result of a dismissal that allows the applicant to reapply for hearing. Obviously the insurers will have to incur additional expenses if the applicant reapplies (although the potential for additional or "wasted" expense may be less than they would have incurred had they already gotten reports from independent medical examiners.) In fact, taking the argument to its logical conclusion, the opposing side would be "prejudiced" by having to incur additional expenses in every case of dismissal without prejudice. The commission is more like to consider the opposing side to be prejudiced if a monfinal dismissal would adversely affect its ability to present or defend its case. No such showing has been made here.

In this case, the commission believes the more appropriate basis for determining whether to allow the applicant to reapply is along the lines of the first basis mentioned by ALJ Roberts: does allowing the applicant to re-apply work a kind of abuse of the administrative process? In other words, did the applicant have good cause or a reasonable basis for failing to get the test done by the time of the hearing?

The statutes and reported case law provide some guidance in this issue. Deciding whether to dismiss a case with or without prejudice is very much like deciding whether to grant an interlocutory order or adjourn all or part of a case. These issues are within the discretion of the department and the commission. In general, orders made by the commission and the department on discretionary matters will be reversed by reviewing courts only in cases where the agency acted in flagrant abuse of its discretion , or where no facts in the record support the agency decision.

In a recent decision, a circuit court affirmed a commission decision denying an employer's request for a postponement or continuance to allow the employer to get a vocational opinion. The commission based its decision in part on the fact that the employer had already had ample time to get the vocational expert's opinion. Amour & Company v. LIRC and James Bahr, Eau Claire county circuit court case no. 93 CV 710 (April 14, 1994). In sum, then, the commission's primary focus generally is on (1) the reasonableness or justification of the action (or lack of action) of the party requesting a postponement, adjournment or dismissal without prejudice and (2) actual prejudice, posed by the request, to the opposing party's ability to present its case. The commission usually gives only secondary consideration to the "prejudice" to the other side from the expense of having to prosecute or defend the claim that might otherwise have been decided summarily.

Here, the applicant requested a hearing in January 7, 1994, stating that she was ready to proceed to hearing "anytime." At about the same time she got a report from Dr. Shapiro indicating that, among other things, a challenge test needed to be done. Thus, the record establishes that when the applicant filed her application for of hearing, she not only was not ready to proceed to hearing, but also had not yet even obtained an expert opinion supporting a prima facie case.

The applicant may have proceeded as she did in the expectation that the division would not schedule a hearing for many months. Indeed, the division did not schedule the hearing until late September 1994, when it sent out the notice for the mid-November hearing. Thus, the hearing was noticed over eight months after the application was filed and was to be held over ten months thereafter, but still the applicant had not yet arranged for the challenge test.

Nonetheless, it was not until October 1994 that the applicant gave up on Dr. Kirkhorn and scheduled the challenge test with another doctor. Further, the applicant did not request a postponement on her pending application before the hearing notice went out even though she was having problems scheduling the test. In fact, the department received the applicant's postponement two weeks after the hearing notice was sent, even though the notice itself states postponement requests should be made immediately upon receipt and the department's rules state that postponements are granted after a hearing has been noticed only in extraordinary circumstances. The commission concludes that the applicant has not proven any reasonable basis for her failure to get a supporting expert medical opinion within nine months of filing her application for hearing. It thus affirms the administrative law judge's dismissal with prejudice.

cc: ATTORNEY WILLIAM J WESTERLUND
WILCOX WILCOX DUPLESSIE WESTERLUND & ENRIGHT

ATTORNEY DAVID M ERSPAMER
ERSPAMER LAW OFFICE

ATTORNEY DAVID A PIEHLER
TERWILLIGER WAKEEN PIEHLER & CONWAY SC


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