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2010AP1374 Ellis v. DOA


2010AP1374 Ellis v. DOA


Worker’s compensation; default judgment

Default judgment is unavailable to plaintiffs in worker’s compensation actions when the employer has timely answered.

“[W]e first note that nowhere does the statute provide for default judgment.  Additionally, § 102.23(1)(e) expressly provides that the administrative order at issue may only be set aside for the following grounds:  (1) that the Commission acted without or in excess of its powers; (2) that the order was procured by fraud; or (3) that the Commission’s findings of fact do not support the order.  See id.  Indeed, the remedy of default judgment would directly conflict with the scope of judicial review as provided in the statute because it would prevent the trial court from affirming or denying an administrative order in accordance with the mandates outlined in § 102.23(1)(e).”

“These reasons were dispositive in Wagner v. State of Wisconsin Medical Examining Board, 181 Wis. 2d 633, 638, 642-44, 511 N.W.2d 874 (1994), in which our supreme court held that default judgment is unavailable for administrative proceedings reviewed under Wis. Stat. ch. 227.  Wagner held that default judgment is unavailable for plaintiffs in these proceedings because ch. 227 did not contemplate default judgment as a remedy for plaintiffs seeking review of the agency’s actions, and because default judgment would conflict with the scope of review outlined for ch. 227 proceedings.  See Wagner, 181 Wis. 2d at 642-44. We find these reasons persuasive with regard to the Wis. Stat. § 102.23 action at issue in Ellis’s case.”


Recommended for publication in the official reports.

2010AP1374 Ellis v. DOA

Dist. I, Milwaukee County, Witkowiak, J., Curley, J.

Attorneys:    For Plaintiff: Ronald Bornstein, Milwaukee; For Defendants: Kevin C. Potter, David A. Hart, III, Madison.

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