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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0805-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
BENJAMIN G. BENISHEK,
Plaintiff-Respondent,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION,
Defendant,
HOME INSURANCE COMPANY
and W. H. TRANSPORT,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Langlade County:
JAMES P. JANSEN, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. W. H. Transport and its insurer appeal a judgment
reversing a decision of the Labor and Industry Review Commission.[1] Because the LIRC decision was based on an
issue that was not properly before the commission, we conclude that LIRC
exceeded its authority and we affirm the trial court's reversal of its
decision.
Benjamin Benishek filed
an application for a hearing with the Department of Industry, Labor and Human
Relations alleging two separate injury dates.
By stipulation, the hearing was limited to the injury date of June 19,
1991. W. H. Transport and its
insurer filed an answer admitting that the accident occurred on or about the
time claimed and that Benishek was performing a service growing out of and
incidental to his employment and that the accident causing injury arose out of
the employment. After the date the
notice of hearing was mailed, W. H. Transport attempted to amend its
answer to deny the assertions previously admitted. The administrative law judge (ALJ) sustained an objection because
the amended answer was not timely. The
only issue joined for the hearing was whether Benishek suffered a continuing
disability. The ALJ found for Benishek
on the only issue tried. LIRC reversed
the ALJ's ruling that Benjamin Benishek sustained a work-related injury. LIRC's ruling, in effect, allowed the filing
of an amended answer after the time set out in Wis. Adm. Code § IND 80.08 and faulted Benishek for not
presenting evidence on that issue after the ALJ struck the amended answer
raising that issue.
Due process requires
that the parties involved in an administrative proceeding be apprised of the
issues involved in the proceeding. Wisconsin
Tele. Co. v. DILHR, 68 Wis.2d 345, 354-60, 228 N.W.2d 649 654-57
(1975); General Elec. Co. v. Wisconsin Employment Relations Bd.,
3 Wis.2d 227, 241, 188 N.W.2d 691, 700 (1958).
After the ALJ limited the issues by disallowing the amended answer,
Benishek had no reason to present evidence on the allegations that were
admitted in the initial answer. It
would violate Benishek's due process rights to deny him compensation based on
his failure to prove an issue that was conceded in the initial answer and that
the ALJ declared not to be the subject of the hearing.
W. H. Transport argues
that the medical records relating to all of the issues had been filed and
served on all of the parties before the hearing, that the hearing was continued
for five months after the amended answer had been served and that the issue was
fully and fairly tried even though it was not officially joined. Benishek was specifically informed by the
ALJ that the only issues to be tried were the nature and the extent of the
disability and liability for medical expenses.
Regardless of the information available to Benishek and the time he had
to prepare for the continued hearing, he was not informed that he was required
to present evidence on the question of whether the injury arose out of his
employment. Regardless of the evidence
presented at the hearing, the causation issue was not "fairly tried"
because Benishek was never informed that he was required to present evidence on
that issue. Neither LIRC nor the courts
can speculate regarding the evidence Benishek would have presented had he known
that he was required to present evidence on an allegation that the answer
admitted.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.