CHARLES K SNIDER, Applicant

SERVICEMASTER CLEANING, Employer

TRANSPORTATION INSURANCE CO, Insurer

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.

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

Dated and mailed August 5, 2008
snidech . wsd : 175:8 ND §§ 8.48, 8.49

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer and its insurer assert in their petition for commission review the administrative law judge erred in determining the employer's insurer has liability for the applicant's current claim, and is liable for payment for reasonable and necessary medical expenses associated with the applicant's most recent eye surgery, and any temporary disability incurred as a result of the treatment. The employer and insurer state in the petition for commission review, the Wis. Stat. § 102.17 was first amended by 2001 Act 37, which provided that a traumatic injury resulting in a loss or total impairment or any part of the rest of the arm approximate to the hand, and any loss of vision, there shall be no statute of limitation except that benefits and treatment expenses becoming due after 12 years from the date of injury, death or last payment of compensation shall be paid from the work injury supplemental benefit fund. The employer and insurer argue that 2001 Wis. Act 37 does not specifically state the statute of limitations has retroactive effect, but merely allows the benefit or treatment expense to be paid by the work injury supplemental benefit fund regardless of the date of injury.

The employer and insurer acknowledge the 2005 Wis. Act 72 section 115 shifts the burden of providing benefits or treatment expense for barred traumatic claims from the supplemental benefit fund to the employer and insurer. However, the employer and insurer once again argue the legislature did not specifically state the statute of limitations changed retroactively, and even if the legislature actually intended that an employer and insurer should become liable for time-barred claims, such an interpretation would constitute a constitutional deprivation of due process.

The applicant sustained a compensable left eye injury at work on March 27, 1989 which required him to undergo a lensectomy to remove the lens from his eye and place a contact lens in the eye. The employer and its insurer paid indemnity benefits until April 23, 1989. The parties reached a compromise agreement by the department on February 19, 1992 and payments were made by the insurer on March 12, 1992 consistent with a limited compromise agreement.

At the time of the applicant's work injury the statute of limitations for a traumatic injury sustained by an applicant was 12 years. The 12-year period for the statute of limitations expired on March 12, 2004. Subsequently, the applicant required further surgery on his left eye due to the work incident. The applicant filed an application for hearing on February 17, 2006, seeking payment for the placement of an intraocular lens for his left eye, and temporary disability associated with the surgery.

The amendment to the Worker's Compensation Act of April 2, 2006 found in 2005 Act 172 section 102.17(4) provides that in the case of a traumatic injury resulting in the loss or total impairment of the hand, or any part of the rest of the arm proximal to the hand or of the 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 spinal disc or a total or partial knee or hip replacement, there shall be no statute of limitations and benefits or treatment expense for a traumatic injury becoming due after 12 years from the date shall be paid by the employer and insurer. Further, section 74 of the 2005 Act provides for traumatic injuries the treatment of sections of 102.17(4) and 102.66(1) and (2) first applies to benefits or treatment expenses that are payable on the effective date of this subsection regardless of the date of injury.

The administrative law judge appropriately noted that the Legislature determined the amendment should not be considered prospectively only, but also retroactively regardless of the date of injury, citing the language in section 74 of the Act which provides for traumatic injuries and the treatment of section 102.17(4) and 102.66(1) and (2) of the statutes to first apply for benefits or treatment expense that are payable on the effective date of the subsection, regardless of the date of injury. In a recent commission decision Liska v. Meyer, Commission Decision dated May 13, 2008, the commission held in a similar factual situation that it was clear from the language in this amendment to the statute that the legislature intended the provisions of Wis. Stat. § 102.17(4) to apply retroactively. The commission noted that like most agencies it had no authority to address the constitutionality of the statute it enforces, but simply interprets the statute as written and does not address the constitutional issues.

The commission held in the Liska case the insurer had liability for the initial claim and will continue to have liability for the claim even after the 12-year statute of limitations for a traumatic injury, and this does not make it a new claim. In our current case, the administrative law judge appropriately held the applicant sustained a work-related injury to his left eye on March 27, 1989, and the employer and its insurer have liability for the claim, and ordered payment of the reasonable and necessary medical expenses which the applicant has incurred even after the former 12 years statute of limitation has expired pursuant to the most recent legislative enactment. The commission agrees with the administrative law judge that Transportation Insurance has liability for the traumatic left eye work injury sustained by the applicant on March 28, 1989 within the meaning of section 102.17(4), and shall pay the claims of the applicant subsequent to reimbursement from the work injury supplemental benefit fund pending an appeal if one is taken. Jurisdiction was appropriately reserved in this matter.

cc:
Attorney Peter Waltz
Attorney David Hart
Attorney Michael Stotler