P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 1999054818


Pursuant to its authority under Wis. Stat. § 102.18(3), the commission remands this case to the Department of Workforce Development, Worker's Compensation Division (division), to consider recalculating the applicant's award, and her attorney's fee, in light of the overpayment of temporary disability compensation as shown in the division's records.

Dated and mailed September 28, 2001
roseje . wpr : 101 : 3  ND 5.43 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: This case went to the presiding administrative law judge (ALJ) on stipulated facts. A May 1999 compensable injury, an average weekly wage at the statutory maximum, and permanent partial disability at fifteen percent to the body as a whole were all stipulated. The stipulation (signed by the applicant personally, her attorney and the employer's attorney) also provides:

"The Department of Workforce Development may now immediately enter its award,. and the award may provide for the direct payment to the Employee's attorney, Richard A. Fortune of the following sums out of the total additional compensation being paid by the Employer to the Employee as described above: attorney fees of 20% of the ongoing compensation for permanent partial disability that is being paid to the Employee; plus costs of collection advanced. [Italics in original.]"

Stipulation of Settlement, executed in April 2001. (1)

Apart from the issue of permanent disability, the division's computer-generated records show that from September 1999 to May 2000 (well in advance of the April 2001 stipulation), the respondent overpaid temporary disability compensation by $2,842.32. The overpayment was not mentioned in the stipulation, nor apparently brought to the ALJ's attention before he issued his decision. The respondent now seeks to have the award adjusted in light of the overpayment.

The division and the commission routinely offset overpaid temporary disability from a permanent disability award, a course approved by the courts. McCune v. Industrial Commission, 260 Wis. 499 (1952). The rationale is that the law does not wish to discourage prompt payment, even prompt overpayment, on the part of insurers, so it allows this mechanism to adjust such overpayments later on. Nonetheless, there is some authority that the insurer must prove the overpayment. Kohler Co. v. Weber, case no. 156-255 (Wis. Cir. Ct. Dane County, Jan. 18, 1978).

The commission is not certain whether the division did not apply an offset in this case by choice or inadvertence. If an offset is appropriate, the issue of whether the attorney fee should based on the net award or on the total permanent disability award arises, in light of the terms of the Stipulation of Settlement, signed by the applicant personally. These questions, the commission believes, are better addressed by the division at this point.

Attorney Richard A. Fortune
Attorney Thomas M. Rohe

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(1)( Back ) A "stipulation," as opposed to a "compromise" allows the applicant to raise further claims on the injury.


uploaded 2001/10/09