BARBARA J. WASMUND , Applicant
HIDEAWAY ACRES, Employer
GRINNELL MUTUAL REINSURANCE CO, Insurer
WORK INJURY SUPPLEMENTAL
BENEFIT FUND
SECOND INJURY FUND
In December 2010, the applicant filed a hearing application seeking supplemental benefits under Wis. Stat. § 102.44(1). The matter proceeded without hearing on stipulated facts. See Wis. Stat. § 102.18(1)(a). On July 27, 2011, 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. It has reviewed the stipulated facts and, like the ALJ, has taken administrative notice of the department's file in this matter. Based on its review, the commission makes the following:
The applicant sustained a compensable right leg injury on March 18, 1995, which caused 40 percent permanent partial disability at the right hip. This amount was paid by the worker's compensation insurer based on an average weekly wage of $240 per week.
At the time of her injury, the applicant had pre-existing permanent disabilities due to a back injury, multiple knee injuries and history of a seizure disorder. She eventually brought a claim under Wis. Stat. § 102.59, the second injury statute. That section provides:
102.59 Preexisting disability, indemnity. (1) If an employee has at the time of injury permanent disability which if it had resulted from such injury would have entitled him or her to indemnity for 200 weeks and, as a result of such injury, incurs further permanent disability which entitles him or her to indemnity for 200 weeks, the employee shall be paid from the funds provided in this section additional compensation equivalent to the amount which would be payable for said previous disability if it had resulted from such injury or the amount which is payable for said further disability, whichever is the lesser. If said disabilities result in permanent total disability the additional compensation shall be in such amount as will complete the payments which would have been due had said permanent total disability resulted from such injury. This additional compensation accrues from, and may not be paid to any person before, the end of the period for which compensation for permanent disability resulting from such injury is payable by the employer, and shall be subject to s. 102.32 (6), (6m), and (7). No compromise agreement of liability for this additional compensation may provide for any lump sum payment.
Because her pre-existing permanent disability exceeded 200 weeks, the applicant was entitled to compensation under the second injury statute. Further, based on the combination of the permanent disability from the work injury and her pre-existing permanent disabilities, she was deemed permanently totally disabled as of
August 2, 2005. She has been receiving payments from the "Second Injury Fund"(1) in an amount that completed the payments that would have been due had the work injury caused a permanent total disability.
The applicant now seeks supplemental benefits under Wis. Stat. § 102.44(1). The statute, as amended through 2011 Wis. Act 183, provides in relevant part as follows:
102.44 Maximum limitations. Section 102.43 shall be subject to the following limitations:
(1) (ag) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury that occurred prior to January 1, 2001, shall receive supplemental benefits that shall be payable in the first instance by the employer or the employer's insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. Those supplemental benefits shall be paid only for weeks of disability occurring after January 1, 2003, and shall continue during the period of such total disability subsequent to that date.
(am) If the employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit for a week of disability occurring after May 1, 2010, shall be an amount that, when added to the regular benefit established for the case, shall equal $582.
...
(c) Subject to any certificate filed under s. 102.65 (4), an employer or insurance carrier paying the supplemental benefits required under this subsection shall be entitled to reimbursement for each such case from the fund established by s. 102.65, commencing one year after the date of the first payment of those benefits and annually thereafter while those payments continue. To receive reimbursement under this paragraph, an employer or insurance carrier must file a claim for that reimbursement with the department by no later than 12 months after the end of the year in which the supplemental benefits were paid and the claim must be approved by the department..
[Emphasis supplied.]
In this case, the ALJ denied supplemental benefits under Wis. Stat. § 102.44(1). The applicant appeals, arguing the applicant's permanent total disability is the result of both a work injury and preexisting disability, and so results from "an injury" as provided in Wis. Stat. § 102.44(1)(ag). He notes, too, that worker's compensation statutes are to be construed liberally and that between two reasonable interpretations, the one that provides benefits to an injured worker should be preferred. UFE, Inc. v. LIRC, 201 Wis. 2d 274, 288 (1996).
However, as the Work Injury Supplemental Fund (the Fund) points out, Wis. Stat. § 102.44(1)(ag) provides that the supplemental benefits are to be paid in the first instance by the worker's compensation insurer or, in the case of one of certain "time-barred" claims under Wis. Stat. § 102.66, from the Fund under Wis. Stat. § 102.65. In this case, the applicant does not have a time-barred claim under Wis. Stat. § 102.66, but rather one paid from the Fund under the second injury statute, Wis. Stat. § 102.59.
Wisconsin Stat. § 102.44(1)(ag) does not provide for payment from the Fund in the first instance under Wis. Stat. § 102.65 for cases involving payments from the second injury statute under Wis. Stat. § 102.59. Nor does the insurer have any responsibility for payment of compensation under the second injury statute, Wis. Stat. § 102.59. The commission concludes that the reason Wis. Stat. § 102.44(1)(ag) does not mention payments from the Fund due to liability under the second injury statute is because there is intended to be none.(2) Consequently, the application for hearing must be dismissed.
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 for hearing is dismissed.
Dated and mailed
May 30, 2012
wasmund . wrr : 101 : 9 ND6 6.35; 6.38
BY THE COMMISSION:
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Robert Glaser, Chairperson, dissenting:
I am unable to agree with the majority in this case and therefore respectfully dissent.
The majority's reasoning seems to be that because Wis. Stat. § 102.44(1)(ag) does not explicitly state who must pay the supplemental benefit to the applicant, she is not entitled to it. However, the statute very clearly does say
Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury that occurred prior to January 1, 2001, shall receive supplemental benefits.
I believe the majority, by focusing on who must pay the supplement benefit, improperly restricts the statutory language that very clearly requires payment of supplemental benefits from some source. It may be that, in the absence of specific statutory authorization for payment from the Fund, the insurer will be liable in the first instance. However, Wis. Stat. § 102.44(1)(c) allows the insurer to recover whatever payments it may make from the Fund on annual basis. Finally, I do not think that concerns with fairness should outweigh the express statutory language requiring payment, particularly in light of the often-stated rule that the worker's compensation act, as remedial legislation, should be liberally construed to achieve its goal of compensating injured workers.
/s/
Robert Glaser, Chairperson
cc:
Attorney John D. Neal
Attorney R. Duane Harlow
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