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

CHRISTINE MCKINNEY, Applicant

OHMEDA, Employer

ZURICH AMERICAN INS GROUP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96012997

On January 6, 1998 an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued an order finding that the applicant's claim for additional temporary disability, medical expenses, and permanent disability were not inconsistent with the reservation of jurisdiction in a previous interlocutory order. The employer and the insurer (collectively, the respondent) have petitioned for commission review of the administrative law judge's January 6, 1998 order.

Pursuant to Wis. Stat. § 102.18(3), parties may petition for review of decisions which award or deny compensation. The administrative law judge's January 6, 1998 order does not award or deny compensation. Therefore, the commission does not have jurisdiction to consider the respondent's petition.

ORDER

The petition for review is dismissed.

Dated and mailed: August 25, 1998
mckinch.wpr : 101 : 7  ND § 8.33  § 8.36  § 9.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In an application for hearing filed in March 1996, the applicant claimed disability compensation for a March 3, 1994 work injury. On January 9, 1997, ALJ Roy Sass held a hearing on the issues of causation, nature and extent of disability, and the respondent's liability for payment of medical expenses. Thereafter, in a decision dated January 31, 1997, ALJ Roy Sass found disability caused by the March 4, 1994 injury. His decision awarded temporary disability, permanent disability, and medical expenses. The decision also contained an Interlocutory Order reserving jurisdiction for future orders as warranted and not inconsistent with his decision.

Thereafter, in July 1997, the applicant filed another application, seeking additional permanent disability, temporary disability, and medical expenses. In its answer, the respondent questioned the scope of the ALJ's jurisdiction based on his Interlocutory Order of January 31, 1997. By letter dated August 6, 1997, the respondent's attorney asserted that ALJ Sass's "Interlocutory Order" was in fact a final order except for what has become known as the "Hagen issue" (1) regarding the calculation of disability benefits for certain shoulder injuries. The respondent also assertted that, in any event, ALJ Sass's order was final with respect to temporary disability.

After a response by the applicant's attorney, ALJ Sass wrote the parties stating his intent to resolve the issue without a hearing. Neither party objected. Thereafter, on January 6, 1998, ALJ Sass issued a second order. This order concluded that "the applicant's claim of a later period of temporary disability and additional medical expense and permanency is not inconsistent with the language of the interlocutory order [of January 31, 1997]."

The respondent subsequently filed a petition for commission review of ALJ Sass's January 6, 1998 order.

However, ALJ Sass's January 6, 1998 order does not award or deny compensation. Consequently, the commission may not review it at this time under Wis. Stat. § 102.18(3). Although neither party raised the issue of commission jurisdiction, the commission is not bound by the arguments of counsel and the question of its jurisdiction is one the commission may appropriately consider sua sponte. If an order awarding or denying compensation on the applicant's July 1997 hearing application is appealed to the commission at some future point, the respondent may raise the issue of reservation of jurisdiction under ALJ Sass's January 31, 1997 order then.

cc: ATTORNEY EDITH F MERILA
AXLEY BRYNELSON LLP

ATTORNEY ROBERT T WARD
SCHIRO & WARD

ATTORNEY THEODORE T BALISTRERI
OTJEN VAN ERT STANGLE LIEB & WEIR SC

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Footnotes:

(1)( Back ) The "Hagen issue" was resolved by Supreme Court in Hagen v. LIRC, 210 Wis. 2d 12 (1997).