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

GARLIN SINGLETON, Applicant

R W CONSTRUCTION INC, Employer

WORK INJURY SUPPLEMENTAL BENEFIT FUND, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998065129

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:

1. The text of the ALJ's Order is deleted and the following substituted therefor:

"The application is dismissed with prejudice."

ORDER

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

Dated and mailed September 24, 1999
singlet.wmd : 101 : 5 ND § 7.16

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant was a "deep tunnel" construction worker. His employers conceded a compensable injury in 1970 from caisson's disease, (1) or asceptic necrosis. The condition is an occupational disease, caused when a person who works underground in a pressurized environment is "decompressed" too rapidly. The condition causes bone necrosis with severe arthritis or degenerative joint disease, and is progressive.

In the mid-1970s, the applicant had two hearings on the issue of extent of disability and which of two employers (R&W Construction or Santucci Construction) was liable. Some medical expense and temporary disability were ordered paid. The parties then entered into a final compromise on December 15, 1977, signed by the applicant and his attorney, for $5,000. ALJ R.A. Collins approved the compromise in January 1978.

Significantly, the compromise specifically recites that the parties contemplated that the applicant was afflicted with asceptic necrosis affecting multiple parts of the body, and that the condition was progressive. Indeed, at the hearings in the mid-1970s, the applicant introduced an expert to testify the applicant was disabled from employment, that his condition was progressive, and that he expected the onset of arthritic changes.

At any rate, later in 1978, the applicant sought to have the compromise reviewed, on the grounds that he did not realize that the compromise finally settled his claim. After a hearing in 1979, ALJ Anthony Welhouse dismissed the application seeking review of the compromise.

Then, in 1999, the applicant filed another application for hearing, again claiming disability from caisson's disease. The Department of Justice (DOJ) became involved because it represents the Supplemental Benefits Fund, which is liable for "old" occupational disease claims arising more than 12 years after the date of injury or the last payment of compensation. See Wis. Stat. § § 102.17(4) and 102.65. DOJ raised the 1978 compromise in defense of the 1999 application.

ALJ O'Malley reviewed the case. In mid-June 1999, ALJ O'Malley sent the applicant a letter pointing to the 1978 compromise, and the unsuccessful attempt to reopen it in 1979. ALJ O'Malley concluded that the applicant was no longer entitled to bring a claim based on asceptic necrosis resulting from his employment with R&W Construction and Santucci Construction. Consequently, ALJ O'Malley informed the applicant that he (O'Malley) would soon be issuing an order dismissing the application with prejudice.

Indeed, on June 25, 1999, ALJ O'Malley issued an order dismissing the claim. However, ALJ O'Malley ordered a dismissal without prejudice. The applicant appeals.

The applicant is essentially making a second request for reconsideration of a compromise that specifically contemplated a further worsening of his degenerative condition. The commission has consistently held that compromises should not be reopened absent gross inequity, important newly-discovered evidence, fraud, duress, or mutual mistake. Michael Blenke v. American Can Company, WC claim no. 87037750 (LIRC, September 9, 1992); Julie Stuart-Giese v. Schoeneck Containers, Inc., WC claim no. 85060165 (LIRC, February 5, 1990); and John A. Danielson v. Land O Lakes, WC claim no. 92001626 (LIRC, May 25, 1995); Gary Yench v. UW Oshkosh, WC claim nos. 90029552, 89076285 (LIRC, July 31, 1995). Compromises are not lightly set aside because a compromise of a worker's compensation claim under sec. 102.16 (1), Stats., encompasses qualities of comprehensiveness, finality and risk. Indeed, the supreme court has stated that "[b]y using the word 'compromise' we usually mean that we assume the risk of a mistake for which otherwise one would be entitled to a different result." C.F. Trantow v. Industrial Commission, 262 Wis. 586, 589 (1952).

The commission understands that the applicant believes, perhaps validly, that he has made a "bad deal" and that the amount of the compromise does not adequately compensate his injury as it has progressed. However, that is an inherent risk of compromise. Applying the standards set out above, ALJ O'Malley's decision to dismiss the application must be affirmed based on this record.

The commission's review of the record indicates that ALJ O'Malley intended to dismiss the application with prejudice. The commission is satisfied that a "with prejudice dismissal" is appropriate where, as here, the applicant seeks a second reconsideration of a final compromise that was approved many years ago. Accordingly, the commission amended the ALJ's decision.

Cc: MARY JUDITH POLLOCK
DEPT OF JUSTICE

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Footnotes:

(1)( Back ) Caissons were watertight, pressurized compartments used in bridge-building.