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

YVONNE E SIATS-FISKUM, Applicant

GATEWAY VTAE DISTRICT, Employer

TRANSPORTATION INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-059754

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, except that it makes the following modifications:

Replace the second sentence of the decision with the following:

The applications should be dismissed with prejudice because the 12-year statute of limitations expired on December 13, 2010 for the September 2, 1998 date of injury and expired on March 2, 2011 for the March 2, 1999 date of injury, given the fact that the March 28, 2011 application for hearing was not received until March 30, 2011.

ORDER

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

Dated and mailed
January 31, 2012
saitsyv : 150 : 6 ND6 9.9, 9.52, 10.2

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION


The applicant petitioned for commission review of the ALJ's August 2, 2011 dismissal decision. The front of the dismissal lists WC Claim Nos. 1998-059754 and 1999-017345. The text of the dismissal references three dates of injury and indicated that the statute of limitations had run for the first two alleged dates of injury noted on the application. The ALJ then noted that a hearing would be held on the third date under WC Claim No. 2011-018709.(1)

Wis. Stat. 102.17(4) provides for a 12 year statute of limitations on claims unless specifically excluded by the language of the subsection or by Wis. Stat. 102.555(12)(b).(2) There is nothing in the file to reflect that the alleged injuries are subject Wis. Stat. § 102.555(12)(b) and there is no evidence of occupational disease. Thus, the applicant's claims are subject to the 12 year statute of limitations.

The last payment for September 2, 1998 injury, WC Claim No. 1998-059754, was dated December 13, 1998, so the statute of limitations for that injury expired December 13, 2010. No payments were made for the March 2, 1999 injury, WC Claim No. 1999-017345, thus the statute of limitation on that claim expired March 2, 2011.(3)

The applicant's hearing application for these two alleged injuries was received after that time had elapsed. Although the ALJ's decision referred to the dismissal without prejudice, the effect of the dismissal was actually with prejudice because she would be unable to file an new application timely. Thus, the commission has jurisdiction to review this matter; the ALJ's decision is denying compensation. See Wis. Stat. § 102.18(3).

On August 19, 2011, the applicant petitioned the commission arguing that her claim should not be barred by the statute of limitations as the respondent/insurer did not notify her of its denial of her claim and that she only learned of it through the department after the statute of limitations had run. She also objects to the fact that the respondent/insurer's December 1, 2011 letter does not include her employer. On August 23, 2011, the applicant submitted another letter referencing "protest" letter from Attorney Miller and referenced the department's letter to Attorney Miller saying the respondent/insurer had not answered with respect to WC Claim No. 1999-017345.

Worker's compensation hearings are statutory proceedings where the remedies are established by statute. Borello v. Industrial Comm., 26 Wis. 2d 62, 66, 131 N.W.2d 847, 849 (1965). The relief sought must be within the statute. Id. The commission does not have jurisdiction beyond the statute of limitations and since Chapter 102, Stats., does not provide an equitable remedy, the commission cannot create one. Yunker v. LIRC, 115 Wis. 2d 525, 531 (Ct. App. 1983).

In addition, not only is the dismissal with prejudice the correct outcome from a statutory sense, it is proper given a review of the nature of the applicant's claim. Specifically, the relief the applicant is seeking cannot be tied to either the September 2, 1998 injury or the March 2, 1999 injury because Dr. Truong's February 4, 1999 medical report reflected an end of healing and no permanent restrictions from the September 2, 1998 injury and the omission of the March 2, 1999 injury from the April 23, 2010 practitioner's report, the basis of the application.

In conclusion, the alleged injuries were subject to the statute of limitations and the ALJ had the authority to dismiss the applications for hearing with prejudice based upon his reasonable exercise of discretion. See Baldwin v. LIRC, 228 Wis. 2d 601, 619-620, 599 N.W.2d 8 (Ct. App., 1999).

cc: Attorney Mark Miller

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Footnotes:

(1)( Back ) This WC Claim No. was set up after July 18, 2011 and remains pending.

(2)( Back ) Wis. Stat. 102.555(12)(b) deals with occupational deafness.

(3)( Back ) The applicant's accident report to the employer only notes physical therapy on March 4, 1999 and with absences through March 7, 1999. Contained within the materials submitted by her to the ALJ is a letter, dated April 21, 1999, from the respondent/insurer denying the claim as not traumatic but merely a manifestation of the pre-existing condition.

 

uploaded 2012/03/12