Wis.LIRC WC Decision: Hucek - February 9, 2001 - ND � 6.2 - Generally - Death Benefits - under current � 102.46 claim does not depend on whether injured employe's claim was still viable at time of death - Weissgerber and Kohler decisions distinguished based on change in statute

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

JOHN R HUCEK (Dec'd), Applicant

CHAMPION PAPERS, Employer ^Note

WORK INJURY SUPPLEMENTAL BENEFIT FUND, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000003549

The Work Injury Supplemental Benefit Fund submitted a petition for commission review alleging error in the administrative law judge's Decision and Order issued in this matter on December 4, 2000. The facts were stipulated and the only issue for resolution was whether the employer and its insurance carrier, or the Fund, was liable for the death benefits claimed by the deceased employee's widow, Beulah A. Hucek.

The commission has carefully reviewed the stipulation and the administrative law judge's decision. The commission hereby reverses that decision and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The stipulated facts include that John R. Hucek was employed by Champion Papers, which was insured for purposes of worker's compensation by Liberty Mutual Insurance Company. The parties were subject to the Worker's Compensation Act at the time Mr. Hucek sustained pulmonary asbestosis arising out of and in the course of his employment with Champion Papers. Mr. Hucek's last day of work prior to disability was November 1, 1976, which is his occupational date of injury. Mr. Hucek did not give timely notice of his injury to Champion Papers or Liberty Mutual. He died as a result of his occupational pulmonary asbestosis on May 15, 1999. On January 18, 2000, Beulah A. Hucek, Mr. Hucek's widow, filed an application for death benefits pursuant to Wis. Stat. � 102.46, and for burial benefits pursuant to Wis. Stat. � 102.50.

Champion Papers and Liberty Mutual contend that the Work Injury Supplemental Benefit Fund, rather than either of them, is liable for the claimed death benefits and burial expense. The administrative law judge accepted that contention. In support of his finding, the administrative law judge cited the holding of Weissgerber v. Industrial Comm., 242 Wis. 181, 7 N.W.2d 415 (1943). Mr. Weissgerber also sustained an occupational lung disease, which ultimately was fatal, but he failed to make any claim for compensation prior to his death. Mrs. Weissgerber filed a claim for death benefits after the statutory period set forth in Wis. Stat. � 102.17(4) had expired. (1 ) The court dismissed Mrs. Weissgerber's claim, relying on the reasoning of Kohler Company v. Industrial Comm., 224 Wis. 369, 271 N.W. 383 (1937).

In Kohler, Paul Schuester was a Kohler employee who contracted an occupational disease which ultimately proved fatal, but he had failed to timely file a worker's compensation claim pursuant to the statute of limitations in effect at that time (Section 102.12, Stats., 1929). Six weeks after Mr. Schuester's death, Mrs. Schuester filed a claim for death benefits under Section 102.29(3)(a), Stats. 1929, which was a precursor statute to the current Wis. Stat. � 102.46. The court held that Mrs. Schuester's claim had to be dismissed based on the language of Section 102.29(3)(a), Stats., 1929, which provided that a survivor's death benefit ".shall not exceed the maximum amount which might have accrued to him [the deceased employee] for permanent total disability if death had not ensued." The court reasoned that since the employee's claim had become time- barred before he died, no amount "might have accrued . . . if death had not ensued." In other words, Mr. Schuester had to have had a viable compensation claim at the time of his death in order for Mrs. Schuester to have had a right to a death benefit claim.

The Weissgerber court, citing the same statutory language (Section 102.46, Stats., 1933), adopted this reasoning and took it a step further. Even though Mr. Weissgerber died before the statutory claiming period had expired, Mrs. Weissgerber's application for death benefits was not filed until after that same statutory claiming period had expired. The court held that since Mr. Weissgerber's compensation claim would have been time barred as of the date Mrs. Weissgerber filed her death benefit claim, the death benefit claim was precluded.

The Weissgerber and Kohler holding were based on statutes (2 ) which were interpreted as requiring that a viable compensation claim against the employer still be in existence at the time the widow makes her claim for death benefits. However, the current Wis. Stat. � 102.46 does not contain the "might have accrued . . . if death had not ensued" language, upon which the Weissgerber and Kohler decisions were based. The current Wis. Stat. � 102.46 provides in its entirety:

"Where death proximately results from the injury and the deceased leaves a person wholly dependent upon him or her for support, the death benefit shall equal 4 times his or her average annual earnings, but when added to the disability indemnity paid and due at the time of death, shall not exceed two-thirds of weekly wage for the number of weeks set out in s. 102.44(3)."

Thus, the current statute provides a survivor's death benefit which does not depend on whether the injured employee exercised his/her right to claim compensation while he/she lived, nor does it depend on whether the injured employee's right to claim compensation was still viable at the time the survivor claim the death benefit. Given the straightforward, unambiguous language of the current Wis. Stat. 102.46, the dependent death benefit provided in that statute may be claimed as of the date of death of the deceased employee whose death proximately resulted from the work injury.

In the present case, the administrative law judge concluded that the Weissgerber and Kohler decisions were based on the general statute of limitations for Chapter 102 claims, Wis. Stat. � 102.17(4). (3 ) However, this is incorrect. Both these decisions first looked to Wis. Stat. � 102.46 (Section 102.09(3)(a), Stats. 1929 in Kohler) to determine the conditions under which the widow might file her death benefit claim. The decisions focused on the "might have accrued. . .if death had not ensued" language of Wis. Stat. � 102.46 (Section 102.29(3)(a), Stats. 1929 in Kohler) as establishing a condition precedent to filing a death benefit claim. Reference was made to the time limit found in Wis. Stat. � 102.17(4) (Section 102.12, Stats., 1929 in Kohler) only as one of the tests needed to determine whether the deceased spouse's claim "might have accrued" to him. Without the "might have accrued" language in the current Wis. Stat. � 102.46, there is no need to examine the viability of the deceased spouse's claim. The surviving spouse's death benefit claim, which is an independent, inchoate right established in Wis. Stat. � 102.46, (4 ) is unencumbered in the current Wis. Stat. � 102.46 by any reference to the viability of the deceased spouse's claim. The time limit of Wis. Stat. � 102.17(4) is applicable to the surviving spouse's independent claim for death benefits, but that claim does not arise until the date the injured spouse dies. Accordingly, when Mr. Hucek died as a result of his occupational disease on May 15, 1999, the 12-year statute of limitations provided in Wis. Stat. � 102.17(4) began running on Mrs. Hucek's death benefit claim under Wis. Stat. � 102.46. Her claim was timely filed on January 18, 2000.

The death benefit for the occupational injury date of November 1, 1976, which amounts to $38,916.00 (200 weeks at $194.58 per week), is all accrued. A 20 percent attorney's fee is due in the amount of $7,783.20.

Wis. Stat. � 102.50 provides that in all cases where death of an employee proximately results from the injury the employer/insurer shall pay reasonable burial expenses. It has been stipulated that Mr. Hucek's death proximately resulted from his occupational disease. Liability for burial expense also constitutes an independent right established by statute, which cannot be claimed except by the surviving spouse after the death of the injured worker. See 5 Larson's Workers' Compensation Law, section 98.07 at 98-26 (2000). Accordingly, the statute of limitations for claiming this expense also began on the date of Mr. Hucek's death, and Mrs. Hucek timely filed her claim for it on January 18, 2000. The burial expense amounted to $300.00.

NOW, THEREFORE, this

ORDER

The Decision and Order of the administrative law judge are reversed. Within 30 days from this date, Champion Papers, and Liberty Mutual Insurance Company shall pay to Beulah A. Hucek death benefits in the amount of Thirty-one thousand one hundred thirty-two dollars and eighty cents ($31,132.80); to Attorney Bruce Ranta, fees in the amount of Seven thousand seven hundred eighty-three dollars and twenty cents ($7,783.20); and to Beulah A. Hucek funeral expense in the amount of Three hundred dollars ($300.00.)

Dated and mailed February 9, 2001
hucekjo.wrr : 185 : 1 ND � 6.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: BEULAH A HUCEK

STEPHEN M SOBOTA
ASSISTANT ATTORNEY GENERAL

ABBY BUTLER
W C DIVISION

ATTORNEY BRUCE A RANTA
CUNNINGHAM & LYONS SC

ATTORNEY KURT VAN BUSKIRK
STILP AND COTTON

NOTE: This decision as originally issued on February 9, 2001, showed "Algoma Hardwoods, Inc." as the employer. Subsequently, it was brought to the commission's attention that all parties agreed, that this was in error, and that the relevant employer was Champion Papers. By an amended decision issued February 23, 2001, the commission modified the decision to substitute "Champion Papers" for each reference to "Algoma Hardwoods, Inc." in the original decision.

Appealed to Circuit Court. Affirmed September 18, 2001.

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Footnotes:

(1)( Back ) At the time of the Weissgerber decision, the statutory period for bringing a claim under Chapter 102 was six years from the date of injury or death, but on January 1, 1974, the statutory period for bringing a lung disease claim changed to 12 years from the date of injury or death.

(2)( Back ) Section 102.09(3)(a), Stats., 1929; and sec. 102.46, Stats. 1933.

(3)( Back ) In the Kohler case, the precursor of Wis. Stat. � 102.17(4) was applicable, Section 102.12, Stats., 1929.

(4)( Back ) See State v. LIRC, 136 Wis. 2d 281, 294, 401 N.W.2d 585 (1987); Milwaukee v. Industrial Comm., 185 Wis. 307, 308, 201 N.W. 251 (1924).

uploaded 2001/02/09