CALBERT TURNER, Applicant

FORRESTER ENTERPRISES, Employer

HIGHLANDS INSURANCE CO, Insurer

PENNSYLVANIA GENERAL INSURANCE COMPANY, Insurer

Pennsylvania General Insurance Company (PGI) filed an application for hearing claiming reimbursement due to it from Highlands Insurance Company (now in receivership), stemming from compensation PGI paid relative to Calbert Turner's original claim for a compensable low back injury sustained in his employment with Forrester Enterprises. PGI asserts that the correct date of injury for Turner's low back injury is November 21, 2000, when Highlands was on the risk, and that PGI paid substantial compensation under mistake of fact. PGI's claim for reimbursement is made despite the fact that on August 22, 2005, the department issued an interlocutory order that found that the correct date of injury for Turner's claim was April 29, 2000, when PGI was on the risk; and despite the fact that this department order was affirmed by the commission in a decision issued on March 7, 2006, and that this commission decision was not appealed.

Highlands submitted an answer to the petition and briefs were submitted by the parties. At issue is PGI's reimbursement claim, which implicates the issue of causation for Calbert Turner's low back disability and medical expense.

The commission has carefully reviewed the entire record in this matter, and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:

"Highlands argues that the commission's unappealed decision of March 7, 2006, constituted a final resolution of the issue of causation, including the issue of date of injury, for Calbert Turner's low back injury claim. Highlands further argues that the existence of the limited compromise agreement has no effect on the commission's decision of March 7, 2006."

The rest and remainder of the administrative law judge's Findings and Interlocutory Order are affirmed and reiterated as if set forth herein.

Now, therefore, this

The administrative law judge's Findings and Interlocutory Order are modified to conform with the foregoing, and as modified are affirmed. Pennsylvania General Insurance Company's application for reimbursement from Highlands Insurance Company is denied. Pennsylvania General Insurance Company remains liable for Calbert Turner's work-related low back injury of April 29, 2000, as finally determined by the commission's decision dated March 7, 2006.

Jurisdiction is reserved solely with respect to the possibility of additional medical treatment or additional disability attributable to Calbert Turner's low back injury of April 29, 2000.

Dated and mailed January 27, 2009
turneca : 185 : 9 ND § 8.33

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The controlling facts in this case are that on August 22, 2005, the department issued an interlocutory order that specifically found that the applicant's disability arose from the work incident of April 29, 2000, when Pennsylvania General Insurance Company (PGI) was on the risk, and that the commission affirmed this interlocutory order in an unappealed decision issued on March 7, 2006. The department's and commission's decisions together effected a final resolution of the disputed causation issue. As noted by Highlands Insurance Company, Wis. Stat. § 102.23(1), provides the exclusive method for obtaining judicial review of a commission decision, and PGI did not invoke that review.

In arguing for further administrative relief, PGI cites the early case of Lange Canning Co. v. Industrial Comm., 183 Wis. 583, 197 N.W. 722 (1924), in which the court vaguely described a "temporary order" by which the Industrial Commission ordered a small amount of compensation in a "temporary award," and later issued a "further award" for a much larger amount. Lange Canning Company paid the first award and did not appeal the Industrial Commission's finding that it had to make this payment as a "contractor over." However, Lange Canning balked at paying the second, larger award. It asserted that it was not a "contractor over," even though that issue appears to have been resolved in the first commission order awarding the smaller amount. In a decision that the commission can only describe as perplexing, the court appears to have allowed readjudication of the "contractor over" issue in the proceeding involving the second, larger award. The court's only rationale for this holding was in reference to how Lange Canning Company "felt" about the second award:

"[Lange Canning Company] was confronted with a different business proposition, however, when the larger award was made. It was the larger and not the smaller award by which it felt aggrieved."

Other case law exists that holds that interlocutory orders of the department are not res judicata. For example, see Worsch v. ILHR Dept., 46 Wis. 2d 504, 509, 175 N.W.2d 201 (1970); American Motors Corp. v. Industrial Comm., 26 Wis. 2d 165, 170, 132 N.W.2d 238 (1965). However, all such cases involve a circumstance in which a particular issue was not decided on a final basis in the original order or orders. When the department or commission plainly decides an issue on a final basis, even when the decision is interlocutory with respect to other issues, the courts have always recognized that after the appeal period expires the issue decided on a final basis cannot be relitigated. For example, see Kwaterski v. LIRC, 158 Wis. 2d 112, 117-118, 462 N.W.2d 534 (Ct. App. 1990); Borum v. Industrial Comm., 13 Wis. 2d 570, 573, 108 N.W.2d 918 (1961).

The issue of causation regarding the work injury of April 29, 2000, was decided on a final basis in the department's interlocutory order of August 22, 2005. As explained in that order, jurisdiction was reserved to address the issue of possible future medical treatment, but not to allow relitigation of the causation issue. The commission subsequently affirmed the department's decision in its decision dated March 7, 2006, again with the causation being resolved on a final basis. The causation issue may not now be relitigated before the department or the commission.

PGI notes that a substantial portion of the reimbursement that it seeks from Highlands was paid to Calbert Turner and his attorney pursuant to the limited compromise agreement approved by the department in an order issued on January 18, 2002. PGI argues that the limited compromise did not include any admission of liability, and therefore the causation issue remains open. This argument also ignores the effect of the August 2005 department order, and the March 2006 commission decision approving that order, which together resolved the causation issue on a final basis. The limited compromise was entered into under the authority of Wis. Stat. § 102.16(1), which provides for voluntary resolution of disputed matters. The statute provides that a party to a compromise may request reopening of the compromise within one year from the date of its issuance. No party to the limited compromise ever submitted a request to reopen it, and it has been six years since its issuance. The limited compromise had no legal effect on the subsequent administrative proceedings that did resolve the issue of causation and fixed the date of injury as being April 29, 2000.

cc: Attorney Joseph Berger
Attorney Robert W. Connell
Attorney Robert T. Ward

As amended on January 30, 2009 to add party inadvertently omitted from caption and to correct date of issuance.

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