Wis.LIRC WC Decision: Tufts - January 17, 2002 - ND � 8.47 - Statute of Limitations - Kohler Co., 224 Wis. 369, and Weissgerber, 242 Wis. 181, no longer control because the death benefit statutehas been amended to provide a separate, independent right to death benefits, not contingent on whether the statute of limitations applicable to the deceased's claim expired before the surviving spouse's death benefit claim was filed

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

SANDRA TUFTS (DEC'D), Applicant

LINDBERG F/K/A SOLA BASIC INDUSTRIES, Employer

LIBERTY MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000052376

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.

ORDER

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

Dated and mailed January 17, 2002
tuftssa . wsd : 185 : 1 ND � 8.47

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Respondents' petition revisits arguments made in several relatively recent cases before the commission, most notably the case of International Paper Company, et al., v. LIRC and Work Injury Supplemental Benefit Fund, 2001 WI App 248, ____ Wis. 2d ____, _____ N.W.2d _____, publication ordered October 31, 2001. The commission has consistently found that the two decisions cited by respondents (1 ) are no longer controlling in the matter at issue. This is because the death benefit statute upon which these decisions were based has been amended to provide a separate, independent right to death benefits, which is not contingent on whether the statute of limitations applicable to the deceased workers' compensation claim expired before the surviving spouse's death benefit claim was filed. International Paper Company, a published decision, affirmed the commission's interpretation of the statutes.

Respondents additionally argue that the commission's and the court's interpretation of the statutes amounts to an unconstitutional taking of property without due process of law. This argument is based on respondents' theory that they had a right to rely on the extinguishment of Asa Tufts' death benefit claim six years after Sandra Tufts' date of injury, when the statute of limitations on Sandra Tufts' compensation claim expired. But this argument is premised on respondents' interpretation of the statutes, to the effect that the statute of limitations on a death benefit claim coincides with the statute of limitations on the injured employee's compensation claim. This interpretation has been rejected by the commission and by the court, and therefore the premise of respondents' constitutional argument is in error.

cc:
Attorney Jeanette C. Lytle
M. Shannon Peterson
Assistant Attorney General Stephen Sobota
Abby Butler
Asa Tufts

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Footnotes:

(1)( Back ) Kohler Company v. Industrial Commission, 224 Wis. 369, 271 N.W. 383 (1937) and Weissgerber v. Industrial Commission, 242 Wis. 181, 7 N.W.2d 415 (1943).

uploaded 2002/01/25