Wis.LIRC WC Decision: Blenke - September 9, 1992 - ND � 10.5 - Review of Compromise - compromises should not be reopened absent gross inequity, important newly discovered evidence, fraud, duress, or mutual mistake

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

MICHAEL W. BLENKE, Applicant

AMERICAN CAN COMPANY, Employer

WORKER'S COMPENSATION DECISION
Claim No. 87037750

The applicant submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings of Fact and Conclusions of Law and Order issued on March 27, 1991. At issue is whether the Department has jurisdiction to hear the applicant's claim under sec. 102.35 (3), or whether such claim is barred under sec. 102.16 (1).

The Commission has carefully reviewed the entire record in this matter and hereby reverses and sets aside the Administrative Law Judge's Findings of Fact and Conclusions of Law and Order. The Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A Limited Compromise Agreement ("limited" only in the sense that it was not final with respect to vocational rehabilitation costs ongoing at that time) was entered into on October 4, 1988. An Administrative Law Judge's (ALJ's) Order approving the Limited Compromise Agreement (LCA) was entered on January 3, 1989. An application for hearing for sec. 102.35 (3) benefits was filed on or about May 4, 1990.

Section 102.16 (1) specifically sets a one year limit, from the date of the ALJ's approval Order, within which the Department may set aside or modify an approved LCA. Indeed notice of this one year limit in this case is included both in the LCA itself and in the ALJ's approval Order. There is no power or jurisdiction to take action in a claim after expiration of one year from the date of the approval order. See Pigeon v. DILHR Department, 109 Wis. 2d 519, 326 N.W.2d 752 (1982) (affirming a ruling which barred a claim, for widow's benefits, pursuant to section 102.16 (1)). Therefore while it may have been possible, had a petition for such been made within a year of the approval Order, to set aside or modify or relieve a party from certain provisions of the LCA based on such things as gross inequity, important new evidence, fraud, duress, or mutual mistake, this cannot now be done. However, in order to process the 102. 35 (3) application it is necessary to perform the limited role of construing or interpreting the approval Order so as to facilitate its implementation. However when construing or interpreting such a final order, and consistent with deference thereto and this limited role of review, there is a presumption of regularity that the ALJ acted in conformity with the rules of law and proper procedure in issuing the order, the order should be construed in conformity with the authority under which it was issued, provisions of the statute may be read into such order, and it should be given effect if by any reasonable construction it is capable of administration and enforcement. A finding in such order, which need be only as to the ultimate facts, implies all facts necessary to support the determination of the question involved and a finding not explicitly made may be inferred from other properly made findings and from findings which the Department failed to make, if there is evidence which would support such findings.

In the case before the Commission the specific wording of the October 4, 1988 LCA states:

"This Limited Compromise in the total of (sic) sum of $44,000.00 is a full and complete settlement of any and all liability which the employer, its insurance carrier, and its agents, servants or employees may have for medical bills and indemnity including but not limited to Chapter 102 of the Wisconsin Statutes, . . . 102.35 (3) . . . ."

Section 102.16 (1) speaks of confirmation of compromises by the Department and Wis. Admin. Code sec. IND 80.03 addresses the particulars of these approvals. Section 80.03 (2) indicates that if the Department approves the compromise agreement, an order shall be issued directing payment in accordance with the terms thereof and that no compromise agreement is valid without such an order. Subsection (3) of section 80.03 indicates that the determination of whether or not to approve a compromise agreement in any individual claim is dependent upon the facts, circumstances and judgment of the merits of the compromise in that specific case, including considerations of medical reports, estimates of disability, the length of the time treatment has been necessary, indications that there may be further progression of disability and any and all other factors that bear on the equity of the proposed compromise. It is initially noted in reference to these requirements that the parties had to have been in "agreement" before the ALJ could have even considered entering an order approving that "agreement." The language of the ALJ's order of January 3, 1989 specifically refers to the order being based "upon compromise agreement entered into between the parties in writing" and "upon compromise agreement made" and finds that a valid dispute existed between the parties which was the proper subject matter for compromise. The amount of the indemnity awarded by the ALJ's order specifically followed the amounts listed in the compromise agreement. The "Memorandum" to the ALJ's decision specifically noted, in conformity with the statutory requirement, the one year time limit within which each party had to petition to set aside or modify "this (emphasis supplied) compromise agreement." Evidence in the record indicates the form of this order was one which was consistent with agency practice at the time.

Initially it is noted that applicant does not appear to be even alleging gross inequity, fraud, duress or mutual mistake and from a review of the record clearly such does not exist. The parties were in "agreement" as found by the ALJ. The applicant signed the LCA, was represented by an attorney at the time who also signed the LCA, and applicant's attorney received a fee thereunder. The attorney who represented applicant when the LCA was signed is from the same law firm that now represents him and now contends that the LCA is not enforceable. There is not even an allegaton that applicant did not know or was unaware of what he was signing. There is no indication that he and his attorney were anything other than active participants in reaching the LCA and preparing the document which represents such agreement. The Commission also finds that the employer was a party to the LCA. It is clear that the employer was aware of applicant's injury, was listed as one of the repondents in the LCA caption, the terms of the agreement refer to the employer, and the LCA was signed on behalf of the employer by Joseph J. Ferris, "Attorney for Respondent s (emphasis supplied)," the same attorney who now represents the employer in the unreasonable refusal to rehire claim.

The fact that the applicant may have been unable to return to work at the time the LCA was signed, and therefore may not have been able to file an application for benefits at that time under section 102.35 (3), does not exclude section 102.35 (3) from coverage by the compromise or invalidate that portion of the LCA as being contrary to public policy. In addition to the fact that the LCA specifically mentions section 102.35 (3), and refers to "liability the employer . . . may have (emphasis supplied)," a worker's compensation claim is but one cause of action and when a final award is entered such award is not passing upon merely the employe's right to compensation for certain claims for then known injuries but rather is passing upon all compensation payable for all injuries caused by that accident. See Borum v. Industrial Comm., 13 Wis. 2d 570, 573, 108 N.W.2d 918 (1961); and, State v. Industrial Commission of Wisconsin, 233 Wis. 48, 287 N.W. 692 (1939). Further the very use of the word "compromise" by the parties has special significance under sec. 102.16 (1) in that it encompasses qualities of comprehensiveness, finality, and risk. As the court stated in C.F. Trantow Co. v. Industrial Comm., 262 Wis. 586, 55 N.W.2d 884 (1952) interpreting section 102.16:

"Under the express provisions of the section just quoted, the word 'compromise' is an important declaration serving to advise the Commission and all concerned of the comprehensiveness of the stipulation. By 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. Under the statute, when the word 'compromise' is indelibly stamped upon the stipulation, there is an extension of protection against disadvantage to the extent of a possible review and change if such action is taken within the year (emphasis supplied)."

C.F. Trantow, 262 Wis. 2d at 589. A compromise envisions and incorporates the right, and in this case the exercise of the right, to bargain away and/or settle and receive payment for all aspects of a claim resulting from a particular accident or disease, including those (such as unreasonable refusal to rehire in this claim) for which, in the future, there may be, or may not be, a basis for compensation and to do so with the least possible delay and expense to the parties. This concept is not contrary to, but rather consistent with, the public policy embodied in sec. 102.16 (1), and the fundamental purpose of the compensation act. Nowiny Publishing Co. v. Kappl, 187 Wis. 30, 203 N.W. 740 (1925), Pigeon, 109 Wis. 2d at 525.

Finally, given the standards concerning construction and interpretation of a final order, given the presumption of regularity which attaches to the ALJ's action, given the fact that there is no affirmative proof that the ALJ did not comply with the law in issuing his approval Order, construing the ALJ's order in conformity with the authority under which it was issued and the provisions of the law which are read into it, realizing that certain facts in the LCA itself and the statute and regulations are inherent in and necessary to the ALJ's approval Order, and construing the Order with an eye to making it capable of administration and enforcement, the Commission believes a reasonable construction of the ALJ's Order approving the LCA is one which includes and affects applicant's unreasonable refusal to rehire claim and precludes subsequent prosecution of such a claim. The ALJ would have had no authority whatsoever to issue the Order approving the compromise agreement if in fact there was no "agreement." The evidence shows that there was an agreement. The law requires consideration of the facts of a particular case before an approval Order is issued and it is presumed this was properly done here. Further the Commission construes and interprets the ALJ's order as "specifically mention(ing)" liability under s. 102.35 (3). Section 102.18 (4)(a) states that "(u)nless the liability under s. 102.35 (3) . . . is specifically mentioned, the order, findings or award are deemed not to affect such liability." Even if this section is presumed to apply to orders approving compromises under section 102.16 (1) (of which the Commission has some doubt, see below) the LCA is such an integral part of the ALJ's order that all parts of it, including section 102.35 (3), can be said to have been "specifically mentioned" in it. The ALJ's approval Order should not be construed in a manner inconsistent with its intent, or the intent of the LCA entered into, if it is possible to give it force and effect through reasonable construction. Frankly any other construction or interpretation of the ALJ's order, given the facts of this case, would bring about absurd results and the Commission refuses to so construe or interpret the approval Order.

It is of further note that under the rationale in the cases of Harrison v. Industrial Comm., 246 Wis. 106, 16 N.W.2d 303 (1944) and Meyer v. Industrial Comm., 13 Wis. 2d 377, 108 N.W.2d 556 (1961), and when read in context with section 102.16 (1), a reasonable reading of section 102.18 (4)(a) would be that its requirements are intended only to apply to "orders," findings or awards that "grant or deny compensation." Given the holdings in Harrison and Meyer orders approving compromise agreements under section 102.16 (1) clearly do not fall within this category and therefore sec. 102.18 (4)(a) is of doubtful applicability to this case.

Given the Commission's construction and interpretation of the ALJ's January 3, 1989 approval Order the applicant's prosecution of his unreasonable refusal to rehire application is precluded thereby, the Department has no jurisdiction to hear such claim and it is barred pursuant to sec. 102.16 (1).

NOW, THEREFORE, the Labor and Industry Review Commission does

ORDER

That the application is hereby dismissed.

Dated and mailed September 9, 1992
ND � 10.5

Pamela I. Anderson Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

Applicant relies on the case of R. J. Wilson Co. v. Industrial Comm., 219 Wis. 463, 263 N.W. 204 (1935), which affirmed an award for increased compensation despite the fact that an earlier "stipulation" and release had been entered into which appeared to bar any further claim by the applicant, for support of many of his points. In support of its decision the court in Wilson cited the equivalent of what is now section 102.18 (4)(a) requiring specific mention of the increased compensation statute, the fact that the employer was not a party to the agreement, and the fact that in that case it would be contrary to public policy to construe the stipulation and release as relieving the employer from statutory responsibility for increased compensation. The Wilson case on first glance would appear to be persuasive. However, significant factual and legal/statutory distinctions do exist between the facts and law in Wilson and the facts and law in the case now before the Commission which support, if not compel, a different result. Significantly in Wilson there was no reference whatsoever made either in the stipulation or in the award to the specific right to claim increased compensation, or the increased compensation statute, unlike the specific reference to unreasonable refusal to rehire in the compromise agreement before the Commission. In addition the present version of section 102.16 (1) specifically notes the significance of the word "compromise" as it pertains to the one year limitation within which petitions to modify or set aside compromises may be made, thereby putting the parties here on specific notice of the meaning and effect of such term. The version of 102.16 (1) applicable at the time of the Wilson case did not contain such an explicit provision. Although the Wilson court refers to the document being analyzed in that case as a "compromise agreement," a close reading of the case would indicate that the word "compromise" was apparently never used by the parties - rather it appears the words "stipulation" and "release" were used. Even under today's version of section 102.16 (1), then, the stipulation entered into in the Wilson case would not bar further claims (as a further claim was not barred in Wilson - even though the exact wording of the document was not a focus in that case) since the word "compromise" is never used. The significance of the word "compromise," as such was knowingly used by the parties in this case, was also elaborated upon in the C.F. Trantow case cited in the body of the Commission's order.

The details of the unreasonable refusal to rehire claim, which the ALJ made findings on, were not reviewed by the Commission given its findings on the effects of the LCA and the ALJ's order.

The ALJ indicated that credibility was not an issue in this hearing and the ALJ's decision was reversed as a matter of law. Therefore consultation with the ALJ was not held.

cc:
ATTORNEY ROBERT E NESEMANN
DI RENZO & BOMIER

ATTORNEY JOSEPH J FERRIS
KASDORF LEWIS & SWIETLIK SC

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