TINEKE VALENTI, Applicant
SMITH ROGERS & SMITH, Employer
TRAVELERS CASUALTY & SURETY CO AM, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on July 25, 2007. Respondents Smith Rogers & Smith/Travelers Casualty & Surety Company submitted an answer to the petition and briefs were submitted by the parties. The preliminary issue, upon which the administrative law judge based his order, is whether or not the department retains jurisdiction over the applicant's current application (filed on January 22, 2004) for additional compensation attributable to the conceded work injury of August 27, 1975.
The commission has carefully reviewed the entire record in this matter and after consultation with the administrative law judge regarding the credibility and demeanor of the applicant's testimony, hereby reverses the administrative law judge's Findings and Order. The commission makes the following:
The applicant was involved in a work-related automobile accident on August 27, 1975. She sustained multiple injuries including skull and facial fractures and wounds, a fracture of the second cervical vertebra, severe fractures of her pelvis and both legs, bilateral ankle fractures, and ruptures of internal organs. The insurer (Aetna Casualty & Surety Co., now Travelers Casualty & Surety Co.) conceded liability and paid various temporary disability, permanent partial disability, and medical expenses. An issue arose with regard to the extent of loss of earning capacity attributable to the effects of the unscheduled head injuries, and a hearing was held before [a former examiner](1) on April 19, 1982. [The examiner] issued an order in the matter on July 27, 1982, and in the early part of her findings she wrote:
"The applicant also sustained significant head injuries in the accident. The issue in this case is the extent of her loss of earning capacity due to the unscheduled injuries."
[The examiner] went on to make detailed findings concerning the effect of the accident on the applicant's cognitive abilities, and the resulting effect on her earning capacity. [The examiner] ultimately found that the applicant "...has sustained a 20 percent loss of earning capacity as a result of her unscheduled injuries." In her "ORDER" paragraph, [the examiner] ordered payment of the compensation she awarded the applicant for loss of earning capacity. Nothing else was stated in the "ORDER," such as reservation of jurisdiction.
The insurer made payment in accordance with [the examiner's] order. However, it also paid additional compensation subsequent to the issuance of that order. It paid the applicant temporary total disability for a period beginning in February of 1988 and ending in November of 1989, relating to an ankle surgery attributable to the work injury. Medical expenses for this surgery were also paid. In October of 1989, the insurer paid the applicant additional permanent partial disability and a compromise amount relative to vocational retraining costs. A final payment for previously-underpaid temporary total disability was made to the applicant by check issued on October 4, 1990. In June of 1993, the insurer paid the applicant mileage expense and lost wages for her participation in an independent medical examination. Finally, the insurer paid her regular medical mileage expense from March 2, 1998 through May 9, 1999, and mileage expense to go to another independent medical examination on June 13, 2000.
On January 22, 2004, the applicant filed an application for additional temporary disability, permanent disability, and medical expense attributable to the work incident of August 27, 1975. The respondents assert that [the examiner's] order issued on July 27, 1982, was a final order, and therefore jurisdiction over the entire claim ended when the appeal period for that order expired. In addition, they assert that the applicable statute of limitations (Wis. Stat. § 102.17(4) (1975)), has run on the claim, and therefore the department and commission have lost jurisdiction over it.
The commission finds that the intent of [the examiner's] order was to address a single issue, namely, the extent of loss of earning capacity attributable to the applicant's unscheduled head injuries. That is the only issue addressed in her findings and order. [The examiner] should have made her intention clearer by stating the fact that her order was limited to this one issue, and by identifying the order as being interlocutory with respect to all other issues. However, her careless drafting does not defeat the legal effect of her order, which was to address only one outstanding issue in a claim with a number of outstanding issues. The matter is analogous to American Motors Corp. v. Industrial Comm., 26 Wis. 2d 165, 132 N.W.2d 238 (1965).
In American Motors, the parties agreed to limit the hearing issue to the question of whether or not the injury arose out of the employment, and leave the question of extent of disability for later. The examiner issued an interlocutory order finding that the injury had arisen out of the employment, but also ordered payment of certain temporary disability. The order specifically reserved jurisdiction for the issues of permanent disability and medical expense. After a second hearing, the same examiner issued another interlocutory order awarding additional temporary disability, and indicating jurisdiction was reserved with respect to the issue of permanent disability. In a third hearing before a different examiner, evidence was submitted regarding additional temporary disability and medical expense, but that examiner dismissed the claim for additional temporary disability on the grounds that the interlocutory order from the second hearing had reserved jurisdiction only on the issue of permanent disability. The commission reversed this order and allowed the additional temporary disability and medical expense in a decision that reserved jurisdiction on all issues. The court affirmed the commission. It accepted the commission's finding that the intent of the first examiner had been to reserve jurisdiction on all issues, even though his order had only specified reservation of jurisdiction regarding permanent disability and medical expense. The court and the commission looked to the intent of the parties and the department with respect to reservation of jurisdiction, and quoted approvingly from the circuit court's affirmance of the commission's decision:
"... Neither the commission nor the court should deprive workers of the rights given to them by law because of the inapt or incomplete phraseology used by a busy and harassed examiner in his written findings of fact and order." Id. at 172-73.
In the case at hand, respondents cite other, inapplicable case law in asserting that [the examiner's] order was final. However, they do not even attempt to assert that in 1982, they intended [the examiner's] order to be final with respect to all issues in the applicant's claim. Such an assertion would be incredible when it is conceded that respondents paid additional temporary disability, permanent disability, and medical expense long after the putative expiration of the appeal period for [the examiner's] order. In this case, [the examiner] was the "busy and harassed examiner" who failed to clearly explain the import of her order. However, consistent with the facts, and with the holding of American Motors Corp., her drafting errors do not defeat the applicant's claim. Her order is accurately interpreted as having been interlocutory with respect to all issues except loss of earning capacity attributable to the applicant's unscheduled head injuries. Accordingly, the department and commission retain jurisdiction over all issues except that loss-of-earning-capacity issue. Because [the examiner's] order was interlocutory, the issue of statute of limitations is moot.
The specific amounts actually claimed by the applicant were not detailed in the record, presumably because the focus rested on the jurisdictional issue. The applicant's claim does include a temporary total disability claim, and therefore the commission will order payment of $100.00 towards temporary disability, so that the order is appealable. The order will be interlocutory for resolution of the amounts due for additional temporary disability, permanent disability, and/or medical expense. The applicant's attorney is entitled to a 20 percent fee.
NOW, THEREFORE, this
The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant the sum of Eighty dollars ($80.00); and to the applicant's attorney, Daniel R. Schoshinski, fees in the amount of Twenty dollars ($20.00).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed April 14, 2008
valenti . wrr : 185 : 8 ND 8.33
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission consulted with the administrative law judge regarding the applicant's hearing testimony that "As far as I recall," the only purpose of the hearing before [the examiner] was to determine the loss of earning capacity attributable to the applicant's unscheduled head injuries. The administrative law judge found this testimony to be credible, as did the commission. The commission's reversal of the administrative law judge's order was based on the factual inference that all the parties, as well as [the examiner], intended that to be the only purpose for the hearing held on April 19, 1982, and the order issued on July 27, 1982. [The examiner] was guilty of a drafting error by failing to make her order explicitly interlocutory, but the findings set forth in the order itself make it clear that the intent was to address only one issue in an ongoing claim. As noted in the commission's findings, the reasoning of the American Motors case is therefore applicable.
cc:
Attorney Daniel R. Schoshinski
Attorney Catherine Thomas
Appealed to Circuit Court. Affirmed January 12, 2009.
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