Wis.LIRC WC Decision: Liska, Gary - May 13, 2008 - ND 8.48, 8.49 - Payment of Barred Disease Claims--Payment of Barred Claims for Serious Trauma-- The Legislature intended the provisions of Wis. Stat. 102.17(4) and 102.66(1), pertaining to changes under 2005 Wis. Act 172 regarding statute of limitations of certain injuries, to apply retroactively. While the insurer argues a retroactive application would impair contracts, disturb vested rights, and violate due process, the commission, like most agencies, has no authority to address the constitutionality of statutes it enforces. McManus v. DOR, 155 Wis. 2d 450, 454 (Ct. App. 1990).

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GARY LISKA, Applicant

JAMES MEYER INC, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1982-030203

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed May 13, 2008
liskaga . wsd : 175 : 8 ND 8.48, 8.49

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The insurer asserts in its petition for commission review the administrative law judge erred in determining the insurer has liability for the applicant's claims filed on February 29, 2004. The insurer asserts that Wis. Stat. § § 102.17(4) and 102.66(1) should be applied prospectively only. Wis. Stat. § 102.17(4) provides in part that in the case of a traumatic injury resulting in the loss or total impairment of a hand or any part of the rest of the arm proximal to the hand, or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision or any permanent brain injury, or a traumatic injury causing the need for an artificial spine disc or a total or partial knee or hip replacement, there should be no statute of limitations.

The administrative law judge appropriately noted that the legislature provided in section 74 of the act pertaining to initial applicability: as for traumatic injuries, the treatment of section 102.17(4) and section 102.66(1) and (2) of the statutes first applies to benefits or treatment expenses that are payable on the effective date of this subsection, regardless of the date of injury. 2005 Wis. Act 172.

It is clear from the language in the statute that the legislature intended the provisions of Wis. Stat. § § 102.17(4) and 102.66(1) to apply retroactively. The insurer states that Wis. Stat. § § 102.17(4) and 102.66(1) cannot be applied retroactively as doing so would impair contracts, disturb vested rights, and violate due process. However, the commission, like most agencies, has no authority to address the constitutionality of statutes it enforces. McManus v. DOR, 155 Wis. 2d 450, 454 (Ct. App. 1990). The commission interprets the statutes as written and does not address constitutional issues.

The administrative law judge appropriately noted the insurer has liability for the initial claim and will now continue to have liability for the claim and this does not make this a new claim. The evidence in this case indicates that the applicant sustained a work-related amputation of his right leg below the knee on June 25, 1982. Pursuant to Wis. Stat. § 102.17(4) as amended in 2005 Wis. Act 172, there shall be no statute of limitations applicable to injuries such as the applicant suffered in 1982. The legislature clearly provided that this amended section to Wis. Stat. § 102.17(4) applies to benefits or treatment expense that are payable on the effective date of this subsection regardless of the date of injury. Therefore, the administrative law judge appropriately found that the applicant, who sustained a work-related amputation injury to his right leg below the knee on June 25, 1982, is entitled to further payment from the insurer for his claim, and the insurer was appropriately ordered to make payment for the reasonable and necessary medical expenses associated with this injury.

cc: Attorney David Hart
Attorney James W. Goonan

Appealed to Circuit Court. Reversed in Circuit Court sub nom. Society Insurance Mutual Company v. LIRC, No. 08-CV-449 (Wis. Cir. Ct. Fond du Lac County Sept. 29, 2008), Appealed to the Court of Appeals. Certified to the Supreme Court on October 14, 2009. Certification accepted by Supreme Court. Circuit court decision affirmed (LIRC reversed) by Supreme Court, sub nom, Society Insurance v. LIRC, et al.,, 2010 WI 68, 326 Wis.2d 444, 786 N.W. 2d 385.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2008/06/13