SHARON B HUPPERT, Applicant
DANE COUNTY SHERIFFS DEPT, Employer
DANE COUNTY, Insurer
On July 21, 2008, the applicant filed her application for hearing claiming disability compensation and medical expense related to an injury occurring on February 18, 1995. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on August 20, 2009. At issue is whether the applicant's claim is time-barred under Wis. Stat.
§ 102.17(4).
On November 4, 2009, the ALJ issued his decision in favor of the self-insured employer. The applicant filed a timely petition for commission review.
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 makes the following:
The applicant was born in 1963. She was injured in the course of employment on February 18, 1995. On that date, while working as a deputy sheriff, she was struck by a passing motor vehicle while directing traffic.
The employer conceded the injury. Treatment notes following the injury document a concussion, as well as lower back and left leg pain. The back pain was described as "resolved" or "asymptomatic" in treatment notes for March 1996.
In 1995 and 1996, the employer paid worker's compensation for disability and treatment expense. Most significant for the purposes of this case is a payment of disability made in lump sum by the employer's third party administrator for its worker's compensation claims on June 11, 1996. That payment was for permanent partial disability, all of it accrued, at:
1. 2 percent compared to loss of the foot at the ankle
2. 4 percent to the body as a whole for parosmia or loss of smell
The applicant's medical treatment notes begin to document back pain again in mid-2007. As set out in the report of the employer's medical examiner
(Dr. Soriano), an August 10, 2007 note from Dr. Masciopinto states that the applicant associated her left low back pain and leg pain with the 1995 work injury. Exhibit G, report of Soriano, page 3. A note dated December 4, 2007 likewise details "a long history of pain since being struck by a car while directing traffic," worsening over the prior two years, for which narcotics had been prescribed, and surgery recommended. On December 15, 2007, Dr. Masciopinto performed a left L4-5 hemilaminectomy and interlaminar fusion.
The applicant, of course, was off work as a result of the surgery in December 2007. She received sick pay and holiday pay from the employer during this period.
The applicant told personnel employed by the employer that she believed her disabling back condition and need for surgery was work-related and that she intended to claim worker's compensation. In fact, the employer's third party administrator contacted her surgeon, Dr. Masciopinto, who informed them in March 2008 that the applicant's need for back surgery was directly related to the injury (adding that she had had pain since the injury.) The third party administrator, too, had the applicant's medical records reviewed by its own examiner, Dr. Soriano. In a report dated May 23, 2008, Dr. Soriano concluded the applicant's 2007-08 back complaints were not due to the work injury.
By letter dated May 22, 2008 [sic], the third party administrator informed the applicant it was denying her claim based on Dr. Soriano's report. The applicant then prepared a hearing application claiming about seven months of temporary disability beginning on December 5, 2007, and permanent disability of at least
10 percent. Although the hearing application was dated on July 1, 2008, the department did not receive it until July 21, 2008. This was 12 years and five weeks after the last payment of worker's compensation: the permanent partial disability paid on June 11, 1996.
The limitations statute in effect at the time of the work injury in 1995(1) provided:
102.17(4) The right of an employe, the employe's legal representative or dependent to proceed under this section shall not extend beyond 12 years from the date of the injury or death or from the date that compensation, other than treatment or burial expenses, was last paid, or would have been last payable if no advancement were made, whichever date is latest. In the case of occupational disease there shall be no statute of limitations, except that benefits or treatment expense becoming due after 12 years from the date of injury or death or last payment of compensation shall be paid from the work injury supplemental benefit fund under s. 102.65 and in the manner provided in s. 102.66. Payment of wages by the employer during disability or absence from work to obtain treatment shall be deemed payment of compensation for the purpose of this section if the employer knew of the employe's condition and its alleged relation to the employment.
The ALJ, citing Borello v. Industrial Comm., 26 Wis. 2d 62, 66 (1965), noted that there is no "good cause" exception to Wis. Stat. § 102.17(4). On that point, the ALJ is absolutely correct.
In Yunker v. LIRC, 115 Wis. 2d 525, 531 (Ct. App. 1983), an injured worker asserted that the employer should be estopped from raising the statute of limitations in Wis. Stat. § 102.17(4) against him. In Yunker, the worker contended the employer led him to believe his claim would be filed when he completed a report of injury form, causing him to delay filing his hearing application until after the statute of limitations had run. The court rejected that argument, citing Borello and noting that where a statute does not provide a remedy, the commission cannot create one. Rather, the Yunker court concluded, any relief sought must be within the statute, and the statute provides that the commission did not have jurisdiction beyond 6 years(2) from the date of injury or date compensation was last paid.
However, on appeal to the commission, the applicant does not ask for equitable relief beyond the terms of the statute. Rather, she asserts that the payment of sick leave in December 2007 when she underwent the hemilaminectomy/fusion surgery was the payment of "wages," and thus deemed the payment of compensation, under the terms of Wis. Stat. § 102.17(4) itself.
This issue, too, was addressed to a limited extent by the court in Yunker, which stated:
Yunker argues that the long term disability benefits he continues to receive from his former employer's insurance carrier are wages, payment of which toll the statute of limitations. Section 102.17(4), Stats. 1975, limits the time for making worker's compensation claims to six years from the date compensation was last paid. Compensation includes wage payments made during the period of disability if the employer knew of the employe's condition and that it was related to the employment. Id. Key requirements of sec. 102.17(4), Stats., are: 1) the payments must be "wages"; 2) the wages must be paid by the employer; 3) the employer must know of the employe's condition; and 4) the employer must know of the relationship between the condition and the employment. Id.
Yunker, 115 Wis. 2d at 530. In Yunker, the injured worker had been paid income continuation and received non-industrial disability payments, and asserted that was the payment of "wages." However, because the court accepted the ALJ's finding that the employer did not know that the applicant's condition was related to his employment, the court avoided deciding if the payments were wages.
In the current case, the employer paid the applicant sick leave and holiday pay while applicant was recovering from her December 2007 surgery. The employer was clearly aware of the employee's condition and its alleged relation to the employee's injury and the employment. The question, then, is whether the payment of sick leave and holiday pay under these circumstances is the payment of "wages."
The commission was previously confronted with the issue of whether sick leave payments are "wages" for the purposes of Wis. Stat. § 102.17(4), Dixon v. Oscar Mayer & Company, WC claim no. 84-39403, 1986 WestLaw 192275 (LIRC, July 18, 1986). In that case, Dixon filed an application in 1984, claiming disability from silicosis with a 1964 date of injury. The ALJ noted that during the period from 1964 to 1984, the applicant periodically missed work due to the silicosis and was paid a percentage of his regular pay as a sick leave benefit. Apparently accepting this payment as "wages" the ALJ concluded the statute of limitations had not run on the 1964 injury and that the employer, Oscar Mayer, was still liable.
However, in Dixon, the commission reversed the ALJ in part, concluding that the statute of limitations had run, and that the Work Injury Supplemental Benefits Fund, not Oscar Mayer, was liable for the disability under Wis. Stat. §§ 102.17(4), 102.65, and 102.66. In reaching that result, the commission necessarily concluded that the sick leave payments were not wages, or else it would have found the claim not time-barred and held Oscar Mayer liable.
Further, the worker's compensation statutes themselves distinguish between wages, sick leave, and vacation pay. For example, Wis. Stat. § 102.30(3) provides:
102.30(3) Unless an employee elects to receive sick leave benefits in lieu of compensation under this chapter, if sick leave benefits are paid during the period that temporary disability benefits are payable, the employer shall restore sick leave benefits to the employee in an amount equal in value to the amount payable under this chapter. The combination of temporary disability benefits and sick leave benefits paid to the employee may not exceed the employee's weekly wage.
That is, the statute contemplates that an employee may elect to receive sick leave in lieu of worker's compensation, but if he does not, he is entitled to have his sick leave recredited according to the value of his worker's compensation.
Further, Wis. Stat. § 102.07(3) provides that nothing "shall prevent municipalities from paying teachers, police officers, fire fighters and other employees full salaries during disability." That is, municipalities, such as the employer here, can pay salary--as distinct from sick leave benefits--instead of worker's compensation disability if they choose.
A distinction may be drawn generally, and in this case specifically, in terms of the worker's right to the type of pay involved. A worker generally has a right to sick leave or vacation pay if he or she is unable to work, even if the reason is unrelated to a work injury. See for example, Wis. Stat. § 102.555(4). That distinction is borne out by the record in this case. See transcript, pages 35 to 37; exhibit 1. The payment of sick leave by an employer is at most a concession that that worker is disabled, not that the worker's disability was caused by a work injury. If the worker receives sick leave for disability which is later found to have a work injury, the worker is entitled to have the sick leave restored assuming he or she files an application and asserts that right.
However, a worker generally has no right to wages (distinct from a sick pay, holiday pay, or an income continuation benefit) when he is not working, though an employer may pay him or her wages instead of worker's compensation if it wishes. When wages are paid, however, the statues do not contemplate their restoration by the subsequent payment of worker's compensation. Wages paid by an employer under these circumstances are effectively a substitute for payment of worker's compensation indemnity.
In short, the sick leave and holiday pay paid by the employer to the applicant after she resumed treatment in 2007 were not "wages." Wisconsin Stat. § 102.17(4) is meant to make it clear that the claim survives for 12 years after the employer or insurer stops paying worker's compensation, or after the employer stops paying wages instead of worker's compensation. It is a limitations statute, not a notice statute. The statute is not meant to keep a claim alive indefinitely in the absence of a hearing application simply because a worker receives sick leave or holiday pay after the parties have resumed disputing workers compensation liability.
Accordingly, the applicant's claim is time-barred under Wis. Stat. § 102.17(4). The application must be dismissed with prejudice.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed. The application is dismissed with prejudice.
Dated and mailed June 30, 2010
huperts . wrr : 101 : 5 ND
8.47
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Timothy J. Yanacheck
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