MARIA MARTA SERENA, Applicant

RICHARD GAGAS, Employer

The applicant submitted a petition for commission review alleging error in the administrative law judge's order issued on February 26, 1993. At issue is whether the administrative law judge properly ordered $ 772.90 of the temporary total disability due applicant paid over to Waushara County in connection with AFDC benefits received by applicant in Waushara County.

The commission has carefully reviewed the entire record in this matter and hereby affirms the decision and amended order of the administrative law judge, except as herewith modified:

Delete the second and third paragraphs on page two of the administrative law judge's decision and substitute the following therefore:

"The applicant received $ 1,198 in Aid to Families with Dependent Children (AFDC) payments from Waushara County for the months of September and October 1991. The statutory provisions governing administration of the AFDC program in Wisconsin are located at section 49.19 et seq. Stats. Section 102.27 (2)(b) Stats. provides that if a governmental unit provides assistance under Chapter 49 to pay "medical costs or living expenses related to a claim under this chapter", the employer or insurance carrier owing compensation governmental unit has given the parties to the claim written notice stating that it provided the assistance and the amount of the assistance provided". It was not adequately demonstrated here that the ADFC payments made to applicant for the months of September and October 1991 were made to pay "living expenses related to a claim under this chapter" within the meaning of section 102.27 (2)(b) Stats. It was also not adequately demonstrated that Waushara County gave or intended to give the notice anticipated by section 102.27 (2)(b), Stats. Therefore reimbursement will not be ordered under that section."

Delete the first full paragraph on page three of the administrative law judge's decision.

Delete the administrative law judge's "amended order" and substitute all except the first sentence of the commission's "modified amended order" set forth below.

NOW, THEREFORE, this

The decision and amended order of the administrative law judge dated February 26, 1993 is modified to conform with the foregoing and, as modified, is affirmed. Within 30 days from this date, respondent shall pay to applicant, Maria Marta Serena, the sum of Nine hundred six dollars and sixty four cents ($ 906.64), and shall pay to Portage County Community Human Services Department the sum of One thousand seven hundred thirty-seven dollars and ninety-five cents ($ 1,737.95), to the State of Wisconsin for medical expenses paid by Waushara County on Maria Serena's behalf the sum Three hundred one dollars and fifty nine cents ($ 301.59), to Clover Family Medical Practices the sum of Thirty-one dollars and forty-six cents ($ 31.46), and to the applicant One dollar ($ 1.00) as reimbursement for treatment expense.

This amended order is a final order on all claims or defenses out of the injury of August 14, 1991. This does not change the findings of fact previously made but merely amends the amounts for payment.

Dated and mailed June 15, 1993
110 : CD0239  ND § 5.44

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

Section 102.27 (2)(b), Stats. is not a general recovery statute which authorizes repayment to a governmental unit of all public assistance payments made at any time, or for any reason, to a person who was subsequently found to be entitled to compensation under the Worker's Compensation Act. On the contrary, it is quite limited. The only types of payments which may be ordered reimbursed are public assistance under Chapter 49 "to pay medical costs or living expenses related to a claim under this chapter" section 102.27 (2)(b), Stats. (emphasis added).

Mere chronological simultaneity is inadequate to make a cost or expense per se "related to" the worker's compensation claim. Thus, even if loss of work due to work injury makes a person unable to pay bills for medical services to that person or that person's dependents, medical assistance payments which cover those bills will not warrant reimbursement unless the payments are for medical treatment of the work injury. Medical assistance payments for treatment of the injured employe not connected with the work injury, or for treatment of the spouse or children of the injured employe, are not reimbursable, because those payments do not pay for medical costs "related to a claim under this chapter". See, Ecklor v. William Sprinkman Corporation and American Motorist Insurance (LIRC, February 6, 1991). This is true in spite of the fact that the lack of income caused by the covered disability is what makes the person eligible for payment of those other medical expenses.

Thus, the fact that eligibility for certain payments results from the lack of income caused by disability, does not necessarily establish that the payments are "related to a claim" under the Worker's Compensation Act adequate to warrant reimbursement.

Under the language of section 102.27 (2)(b), Stats., both "medical costs" and "living expenses" are equally subject to the condition that they be "related to a claim under this chapter". As noted above, "medical costs" (emphasis added) are not necessarily "related to a claim under this chapter" merely because the employe's inability to pay them is related to a covered injury. The costs themselves, rather than the inability to pay them, are what must be specifically related to the claim. Given the parallel position they occupy in the statute, it is logical to conclude that "living expenses" are, like "medical costs", also not necessarily related to a claim under this chapter merely because the employe's inability to pay those living expenses is related to the loss of income caused by the work injury. There must be some more direct connection between the living expenses and the claimed injury. It is unnecessary to speculate here on the exact extent of the connection necessary under the statute, because in this case there is no record evidence of any connection apart from the bare matter of lack of ability to pay. The bare inability to pay medical costs of dependents does not make those costs "related to" a worker's compensation claim, Ecklor, supra, and applying the statute as it is written, the commission concludes that the bare inability to pay living expenses of dependents similarly does not make those expenses "related" to the worker's compensation claim.

The commission also concludes that reimbursement is inappropriate here for the separate reason, that it is not clear that it has been sought by the county involved.

Section 102.27 (2)(b), Stats., neither requires nor in fact permits an administrative law judge to order reimbursement on his own motion. On the contrary, it makes an order for reimbursement contingent on affirmative action by the governmental unit involved to seek and claim that reimbursement. While the passing reference to AFDC in Waushara County's February 8, 1993 letter to the administrative law judge and the parties could have appeared to be a notice under the statutes, the commission is satisfied that this was entirely inadvertent. The formal claim letter submitted by Waushara County on January 26, 1993, which expressly gave notice of Waushara County's interest as a claimant under section 102.27 (2)(b), Stats., very specifically made claim only as to medical assistance benefits. No similar statements of a claimed interest in reimbursement under section 102.27 (2)(b), Stats. were made in the subsequent letter's mention of AFDC benefits. Perhaps most significantly, Waushara County never contradicted the assertion made in the February 10, 1993 letter from applicant's counsel, that he had been told by a representative of the county that it was not claiming reimbursement for the AFDC paid and had not mentioned the AFDC in its letter for that reason.

Reimbursement is to be ordered under section 102.27 (2)(b), Stats., only if it is claimed. It is not claimed here as to the AFDC benefits. Therefore it should not be ordered as to those benefits.

Because it resolves the case on the basis discussed above, the commission finds it unnecessary to reach applicant's other arguments.

cc:

Gay Meinke
Waushara County Department of Social Services

Attorney Kevin G. Magee
Legal Action of Wisconsin

Jim Riggenbach
Portage County Community Human Services Department

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