MICHAEL F FISCHER, Applicant
OLYMPIC WALL SYSTEMS INC, Employer
ST PAUL FIRE & MARINE INS CO, Insurer
Olympic Wall Systems, Inc. and St. Paul Fire and Marine Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 14, 2009. The applicant submitted an answer to the petition and briefs were submitted by the parties. Respondents conceded a compensable neck injury that occurred on November 6, 2003, and made payments of compensation that included an overpayment of $4,182.35 in permanent partial disability. Respondents also made payments of temporary disability totaling $10,101.00 during the period of June 8, 2008 to September 8, 2008, when respondents mistakenly believed the applicant was receiving vocational rehabilitation training under authority of either Wis. Stat. § 102.61(1) or (1m).
Before the administrative law judge, the primary issue was the applicant's claim for vocational rehabilitation benefits for a DVR-approved program of vocational retraining at Concordia University scheduled to begin in June 2009. The administrative law judge found that this DVR-approved retraining program was reasonable, and ordered payment of retraining benefits for it.
In the petition, respondents do not dispute the administrative law judge's award of vocational retraining for the Concordia University retraining program. They dispute the administrative law judge's finding that they are not entitled to offset the $10,101.00 in temporary disability mistakenly paid for the unauthorized retraining program against future compensation that will become due to the applicant for retraining.
The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
The first three paragraphs of the administrative law judge's FINDINGS OF FACT are affirmed and reiterated as if set forth herein.
The fourth paragraph of the administrative law judge's FINDINGS OF FACT is set aside, and the following paragraphs are substituted therefor:
"It is well settled in Wisconsin that the worker's compensation program is statutory, that any relief sought must be found within the statutes, and that neither the department nor the commission has the authority to make findings based on equity. Yunker v. LIRC, et al, 115 Wis. 2d 517, 531, 341 N.W.2d 703 (Ct. App. 1983); Borello v. Ind. Comm., 26 Wis. 2d 62, 66, 131 N.W.2d 849 (1965).(1)
It is also well settled that the department and the commission will allow the offset of overpaid compensation against future compensation that becomes due in the same injury claim. Scholz v. Ind. Comm., 267 Wis. 31, 40, 64 N.W.2d 204 (1954); McCune v. Ind. Comm., 260 Wis. 499, 501-02, 50 N.W.2d 683 (1952).
The applicant asserts that Wis. Stat. § 102.61(3), should be interpreted to be applicable to the overpayment of temporary disability benefits that respondents mistakenly thought were due the applicant pursuant to Wis. Stat. § 102.43(5). Wis. Stat. § 102.61(3) provides:
'(3) Nothing in this section prevents an employer or insurance carrier from providing an employee with the services of a private rehabilitation counselor or with rehabilitative training if the employee voluntarily accepts those services or that training.'
First, the commission does not interpret the intent of this statute to include the circumstance present in this case, in which compensation was paid because of a misunderstanding, rather than in accordance with a knowing and voluntarily concession.
Second, compensation for 'rehabilitative training' is established and described in Wis. Stat. § 102.61(1) and (1m), and is separate from the temporary disability provided for in Wis. Stat. § 102.43(5). Michels Pipeline Construction and Bituminous Casualty v. LIRC and David Benites, 2008 WI App 55 12, 309 Wis. 2d 470, 750 N.W.2d 485.
Accordingly, the $10,101.00 in temporary disability that respondents paid to the applicant by mistake of fact shall be offset against future compensation to be paid to the applicant. The $4,182.35 overpaid for permanent partial disability shall also offset against future compensation to be paid to the applicant."
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. The Concordia MBA retraining program is compensable. Respondents shall receive credits of $10,101.00 and $4,182.35, as noted in the above commission findings, to be offset against future compensation otherwise payable to the applicant. After these offsets are exhausted, payments to the applicant shall resume less a 20 percent attorney's fee, and less costs of $1,183.50, both of which shall be deducted and paid to applicant's attorney, Thomas M. Domer.
Dated and mailed March 8, 2010
fischmi : 185 : 5 ND § 5.43
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Thomas M. Domer
Attorney William Sachse
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