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

CHRISTINE L LEASURE, Applicant

NOERENBERG WHOLESALE MEATS, Employer

REGENT INSURANCE CO., Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994-059814


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
September 28, 2011
leasurc.wsd :101:6  ND6  9.35 ; 9.37

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In May 1995, the applicant filed an application for hearing related to an October 6, 1994 injury occurring when she got her hand caught in the blades of a machine, causing a severe crush injury to her right middle finger, possible reflex sympathetic dystrophy, and possible post traumatic stress disorder. The employer and its insurer (collectively, the respondent) admit the injury occurred and have filed a WKC-13, "Supplementary Report on Accidents and Industrial Diseases," documenting temporary disability payments from October 6, 1994 through February 26, 1995, as well as the payment of 11.9 weeks of permanent partial disability for a wrist injury and 11.96 weeks of permanent partial disability for a finger injury, all with a date of last payment of October 21, 1995.

In July 2010, the applicant served a second application for hearing, this one alleging an amputation of the right middle finger while using equipment on October 6, 1994. The file contains a medical report on form WKC-13, dated January 5, 2010, and signed by a doctor who assesses additional permanent partial disability to the right middle finger at 10 percent because of decreased range of motion, grip strength and pain. The file contains no medical evidence of an amputation of the right middle finger or any other body part.

In answer to the hearing application, the respondent asserted that the application was untimely and should be dismissed because the 12-year statute of limitations had run since the last payment of compensation on August 21, 1995. The file indicates that the department then contacted the applicant's attorney asking if he had an objection to a dismissal order being entered. It does not appear that the applicant's attorney responded. Accordingly, on December 16, 2010, ALJ Janine Smiley issued an order dismissing this case with prejudice because the statute of limitations has run.(1)

The applicant's attorney filed a timely petition for commission review. He states that while the 12 years has passed from the date of injury, that does not mean that 12 years had passed from the last payment of benefits. He added that the applicant's condition has gotten worse, and that she is relying in part on Wis. Stat. § § 102.17(4) and 102.66 for her claim.

The respondent contends that more than 12 years has passed since the last payment of compensation. It relies on its WKC-13 which shows the last payment of compensation being made in August of 1995, or more than 12 years before the date of the second application. The respondent's brief indicates the applicant did obtain additional treatment in February 2008, but that would also would be more than 12 years after the last payment of compensation in August 1995. Beyond that, the respondent points out that Wis. Stat. § 102.17(4) specifically indicates that the payment of medical expenses does not toll or stop the running of the statute of limitations. Rather, there must be a payment of compensation "other than treatment or burial expenses."

The commission checked the department's records and, indeed, it appears no payment of disability compensation has been made in this case since 1995. Further, the respondent correctly points out the payment of medical treatment expenses does not toll the statute of limitations. Even if it did, however, there is no evidence that any medical treatment expenses have been paid as opposed to incurred. And further, more than 12 years has passed between the last payment of compensation and the point at which the applicant resumed treatment.

The applicant's brief also raises the language in Wis. Stat. § § 102.17(4) and 102.66 stating that there is no statute of limitations in the case of a traumatic injury resulting in the loss or total impairment of a hand or part of the arm proximal (which means closer into the trunk of the body) to the hand. However, since the record does not establish a loss of total impairment of the hand, and because the index finger is distal, not proximal to the hand, that provision does not apply. Thus, the commission need not address potential applicability of the supreme court's recent decision in Society Insurance v. LIRC, 2010 WI 68, 326 Wis. 2d 444, 786 N.W.2d 385, dealing with retroactive application of the changes to Wis. Stat. § § 102.17(4) and 102.66 by 2005 Wis. Act 172. To the extent the applicant is suggesting the liability of the Work Injury Supplemental Benefit Fund under Wis. Stat. § 102.66, the commission also notes the hearing application was not made against the Fund.

 

cc: Attorney Martin Stein
Attorney Luke Kingree


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Footnotes:

(1)( Back ) The statute of limitations at issue, Wis. Stat. 102.17(4), provides:

(4) Except as provided in this subsection and s. 102.555 (12) (b), the right of an employee, the employee's legal representative, or a dependent to proceed under this section shall not extend beyond 12 years after the date of the injury or death or after 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; 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 spinal disc or a total or partial knee or hip replacement, there shall be no statute of limitations, except that benefits or treatment expense for an occupational disease becoming due 12 years after 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 and benefits or treatment expense for a traumatic injury becoming due 12 years after that date shall be paid by the employer or insurer. Payment of wages by the employer during disability or absence from work to obtain treatment shall be considered payment of compensation for the purpose of this section if the employer knew of the employee's condition and its alleged relation to the employment.

 


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