JEFFERY W. MOORE, Applicant

RAMPART AUTOMOTIVE, Employer

SHEBOYGAN FALLS INS CO, Insurer

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:

In the second paragraph of the decision and in the Order paragraph, delete "without prejudice" and substitute "with prejudice."

The findings and order of the administrative law judge, as modified, are affirmed. The application is dismissed with prejudice.

Dated and mailed
July 26, 2012
mooreje . wmd : 101 : 5 ND6 8.14; 10.2

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In February 2012, the applicant filed an application for hearing alleging an injury to his lower abdomen, his gastrointestinal system, his rectum, his anus and his colon occurring on February 28, 1995, while he was pushing a car at work. The respondent argues that the claim is barred by the 12-year statute of limitations under § 102.17(4). The commission agrees.

Wisconsin Stat. § 102.17(4), the statute setting out the statute of limitations for injuries under the worker's compensation act, has undergone substantial amendment over the years. It now essentially sets a 12-year statute of limitations for all conditions except occupational disease and certain traumatic injuries. The traumatic injuries for which there is now no statute of limitations are: a loss or total impairment of the hand or foot; a loss or total impairment of any part of the body proximal (that is closer to the trunk of the body) of the hand or foot; an injury resulting in any loss of vision or brain injury; and injuries causing the need for the implantation of certain prosthetic devices. Otherwise time-barred injuries are the responsibility either of the Work Injury Supplemental Benefit Fund under Wis. Stat. § 102.65 or (most recently and with respect to the traumatic injuries) the insurer at the time of injury.

In this case, however, the commission need not address the question of which version of Wis. Stat. § § 102.17(4) and 102.65, as amended, applies to the applicant's claim. Those statutes have never extended or eliminated the statute of limitations for the type of the traumatic injury that the applicant claims. He claims he injured himself pushing a car, which means that his injury was due to trauma--an accidental event--and not an occupational disease caused by workplace exposure over an appreciable period of time. Further, he does not claim permanent loss or total disability at the hand, foot, or more proximal part of the arm or leg. Nor does he claim an injury which resulted in a brain injury, loss of vision, or the implantation of a prosthesis.

Again, the applicant filed his hearing application on the 1995 injury in 2012. Assuming there was no payment of compensation for 12 years following the February 28, 1995 date of injury, then, the applicant's claim is time-barred.

No worker's compensation has been paid in this case. The applicant asserts that a payment of $1,100 made in settlement of an American with Disabilities Act claim brought by the applicant against his employer constitutes the payment of compensation within the meaning of Wis. Stat. § 102.17(4). However, Wis. Stat. ch. 102 defines "compensation" to mean "worker's compensation," which is in turn defined as an allowance, recovery or liability under ch. 102. See Wis. Stat. § 102.01(1)(intro.) and (am). Payments made in settlement of an American with Disabilities Act claim do not fit within that definition. The ALJ dismissed the application "without prejudice." Ordinarily, the commission will not

. . . review orders that dismiss without prejudice where no testimony has been taken and the statute of limitations has not run. Such orders do not grant or deny benefits but merely postpone a determination of whether an applicant is entitled to benefits.

Gonzales v. Abbyland Foods Inc., WC claim no. 2007-011225 (LIRC July 26, 2011)(citing Lawrence v. A-1 Cleaning, WC claim no. 95060456 (LIRC November 19, 1997)); see also: Urban v. County of Door, WC claim no. 1998-066802 (LIRC August 27, 1999). Here, the statute of limitations has run. When a claim is dismissed due to the running of the statute of limitations, the department generally dismisses "with prejudice," meaning that the applicant cannot file another application to reassert the time-barred claim. See, for example, Huppert v. Dane County Sheriff's Department, WC claim no. 95-017617 (LIRC June 30, 2010) and Leasure v. Noerenberg Wholesale Meats, Inc., WC claim no. 94-059814 (LIRC September 28, 2011). The commission modified the ALJ's decision in this case accordingly.

cc: Attorney David Piehler

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