TERRY LEE OEHLKE, Applicant
MIRON CONSTRUCTION CO INC, Employer
TRANSCONTINENTAL INSURANCE CO, Insurer
The parties stipulated that the applicant sustained a compensable left shoulder injury and was enrolled in a DVR-Sponsored Rehabilitation Training Program at Fox Valley Technical College. The retraining program cited was Applied Engineering Technology, and it was also stipulated that the applicant had been enrolled in this program from August 21, 2006, through the date of the January 2007 stipulation. Respondents agreed in the stipulation to pay $12,341.12 in rehabilitation training benefits, as well as travel and meal expenses, for a conceded period of retraining that ended January 22, 2007. It was further stipulated that respondents would pay the applicant continuing rehabilitation and maintenance benefits, and other reasonable expenses, as long as he continued in attendance in the retraining program and maintained passing grades. The department issued an order dated January 29, 2007, formalizing the stipulation and ordering payment of the $12,341.12 to the applicant and to his attorney. The department order also incorporated the other terms and limitations of the stipulation.
On June 15, 2007, the department received respondents' "Petition for Review" of the stipulation and department order, in which respondents claim the applicant misrepresented to them that he was attending the retraining program full time. Respondents assert that in fact the applicant only received 11 credits for the 2006 fall semester, and 4 credits for the 2007 winter semester. Respondents additionally assert that they are unsure how many credits the applicant had in the 2007 "spring" semester. Respondents request review and reopening of the underlying stipulation and order. This document was correctly processed by the department as a petition for commission review of the department order issued on January 29, 2007.
On June 21, 2007, respondents wrote to the department indicating that they intended their petition to be a request for the department to set aside the stipulation and department order based on alleged misrepresentation of facts. Respondents assert there is a one-year period to reopen stipulations, just as there is for compromises. On June 27, 2007, the commission received a letter from respondents reiterating their position that the department and not the commission has jurisdiction over their request to reopen.
Respondents are mistaken when they assert that there is a one-year period during which a stipulation may be reopened. There is no provision authorizing such reopening, either in the statutes or in the administrative code. Wis. Stat. § 102.16(1) provides for a one-year reconsideration period for compromises, but that same statute provides:
"Unless the word 'compromise' appears in a stipulation of settlement, the settlement shall not be deemed a compromise, and further claim is not barred except as provided in s. 102.17(4) regardless of whether an award is made." (1)
A stipulation under Chapter 102 is nothing more and nothing less than a concession or agreement between the parties of certain facts and/or legal principles. The stipulation in question provided that the applicant had been attending and continued to attend authorized retraining, and was to be paid certain compensation for it. The wording of the stipulation would allow the respondents to dispute payment of any retraining sums subsequent to January 22, 2007, if after that date the applicant failed to ". . . continue[s] with attendance in the program and maintain[s] passing grades for the duration of the program." However, the $12,341.12 for the period through January 22, 2007, was conceded without any contingency and ordered paid in what has become a final order.
The applicant has responded to the petition with copies of his course schedules for the 2006 fall semester and for the 2007 winter semester, and these indicate that he took 14 credits in the fall semester and 12 credits in the winter semester. Of course, these schedules do not prove that the applicant actually took this many credits, but they provide more information than respondents' bare assertion that he took fewer credits. Furthermore, a full-time schedule is not necessarily a prerequisite to receiving vocational rehabilitation payments. Wis. Stat. 102.61(1r)(b) provides:
The employee must continue in rehabilitation training with such reasonable regularity as health and situation will permit.(emphasis added)
The commission could reopen the stipulation for the period prior to January 22, 2007, using its discretionary one-year authority under Wis. Stat. 102.18(4)(c), that allows reopening on the grounds of mistake or newly discovered evidence. However, no colorable showing has been made that there was a mistake or that there is newly discovered evidence. Therefore, at this time the commission declines to reopen the matter.
NOW, THEREFORE, this
If respondents believe they have a basis under the terms of the stipulation to dispute payments subsequent to January 22, 2007, they may file an application for hearing. Similarly, if the applicant believes respondents have improperly withheld payments subsequent to January 22, 2007, he may file an application for hearing. In either case, the issue would be whether or not funds are due in accordance with the terms of the stipulation. The stipulation itself has become final and could only be reopened under the discretionary authority of 102.18(4)(c), but the commission declines to reopen it based on the information presented.
This decision does not address the applicant's claim for bad faith under Wis. Stat. § 102.18(1)(bp), that was filed with the department on May 7, 2007.
Dated and mailed July 12, 2007
oehlkte . wpr : 185 : 8 ND § 10.2
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney James P. Maloney
Attorney Mark Miller
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