WILLIAM A BRUKARDT, Applicant

MARINETTE MARINE CORP, Employer

NORTH RIVER INSURANCE COMPANY, Insurer

LATE PETITION

The administrative law judge issued an interlocutory order in this matter on December 12, 2001, thus making the last date for a timely petition January 2, 2002 (Wis. Stat. § 102.18(3)). The applicant's petition was received by the commission on January 14, 2002, 12 days late. Applicant's attorney has asserted that the petition was late because she believed the respondents planned to appeal the administrative law judge's order, and she intended to review the file when they petitioned. Respondents did not submit a petition and on January 10, 2001, applicant's attorney reviewed the file and decided to appeal the administrative law judge's finding that respondents were to receive an offset of temporary total disability paid under the Federal Longshore and Harbor Worker's Compensation Act against the permanent partial disability awarded under Wisconsin's Worker's Compensation Act. The applicant's attorney asserts that these alleged facts demonstrate that the applicant's petition was late for a reason beyond his control.

The argument that applicant's petition was late for a reason beyond his control because applicant's attorney made assumptions concerning respondents' intention to appeal is faulty. The applicant and his attorney were subject to the same statutory appeal deadline as were the respondents. Whether or not respondents appealed, the applicant was required to file a petition or cross-petition within 21 days of the department decision if he desired commission review of the decision (See Wis. Admin. Code § LIRC l.02 and 1.026). In addition, the facts as asserted by applicant's attorney reveal that no review of the department decision, relative to the question of appeal, was conducted until eight days after the appeal deadline. Even accepting as true the attorney's assertion that she was on vacation from December 15, 2001, until January 6, 2002, this provides no excuse for ignoring the appeal deadline. Parties and their attorneys who go on vacation are expected to have their mail monitored and to provide for timely adherence to appeal deadlines. Accordingly, the applicant's petition is dismissed as untimely.

SET ASIDE UNDER WIS. STAT. § 102.18(3)(c)

However, the commission finds that the administrative law judge's decision contains an obvious mistake, which if left undisturbed, would result in a serious injustice to the applicant. Accordingly, the commission hereby exercises its authority under Wis. Stat. § 102.18(4)(c), to set aside the administrative law judge's decision and reissue it with the mistake corrected. The commission will hereinafter set forth nearly the entire first two pages of the administrative law judge's decision as its own findings, but substitute other findings for the remainder of the decision, in order to correct the mistake the administrative law judge made concerning the offset question. The commission makes the following:

The Stipulated Facts of the parties are summarized as follows:

That the applicant, William Brukardt, was born April 27, 1949, and his social security number is ***-***-****. That he was an employee of the respondent, Marinette Marine, installing insulation on a module of a ship on a ladder in a building at Marinette Marine in Marinette, Wisconsin, on April 2, 1999. That Mr. Brukardt injured his neck in the course of his employment on April 2, 1999, and missed time from work from April 13, 1999, through July 11, 1999. That Signal Mutual Insurance paid Mr. Brukardt benefits for temporary total disability in the amount of $4,367.04 pursuant to the federal Longshore and Harbor Worker's Compensation Act (LHWCH) which had jurisdiction of the claim.

That all medical expenses have been paid. That Mr. Brukardt suffered a permanent disability of 10 percent of permanent total disability as a result of his neck injury and related surgery.

That Marinette Marine and North River Insurance Company deny that Wisconsin has concurrent jurisdiction with LHWCH and therefore deny liability for the permanent partial disability of 10 percent. That Mr. Brukardt contends that concurrent jurisdiction does exist and that he is entitled to benefits in the amount of $18,400.00 for his permanent partial disability.

The dispute centered on the sole issue of whether there is concurrent state and federal jurisdiction in this case. The short answer is yes. The Longshoreman and Harbor Worker's Compensation Act was enacted in 1927 by Congress to extend some protection to maritime workers injured on the job. Since then, the courts have had to deal with the problem of jurisdiction between the federal act and state law. The courts have concluded that federal jurisdiction runs concurrently with state remedies. Sun Ship, Inc. v. Pennsylvania et al., 447 U.S. 715, (1980). Therefore, as the law now stands, there is concurrent state and federal jurisdiction over maritime-related injuries. Federal jurisdiction is exclusive only with respect to those injuries which are sustained in employment that is so characteristically maritime, or so identified with navigation and commerce, that application of state law would materially prejudice federal maritime law.

The stipulated facts established that, at the time of his injury, Mr. Brukardt was working on a ship in a building owned by Marinette Marine. He was installing insulation. This work could not be characterized as so maritime as to preclude concurrent federal and state jurisdiction.

While there is concurrent jurisdiction, the courts have also ruled that there cannot be a double recovery so that benefits awarded under one system shall be credited in their entirety, regardless of the reason for the particular payment, against any recovery under the second system. Charles Mcowan, et. al. v. General Dynamics Corp/Electric Board Division, et. al., 556 A.2d 587 (1989). Under the Wisconsin Act, the applicant is entitled to temporary total disability benefits for the period between April 13, 1999 and July 11, 1999, which the parties agree at the applicable rate amounts to $4,367.04. Also under the Wisconsin Act, the applicant is entitled to 10 percent permanent partial disability of the whole body, which at the applicable rate amounts to accrued compensation in the amount of $18,400.00. The applicant previously received $4,367.04 in compensation under the Federal Act, which exactly offsets the temporary total disability award due under the Wisconsin Act. The net amount due the applicant is the $18,400.00, representing the award for permanent partial disability. The applicant's attorney is entitled to a fee as agreed between the attorney and the applicant in the amount of $3,680.

Now, therefore, this

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant compensation in the amount of fourteen thousand seven hundred twenty dollars ($14,720); and to applicant's attorney, Holly Lutz, fees in the amount of three thousand six hundred eighty dollars ($3,680.00).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed February 7, 2002
brukawi : 185 : 8 ND � 2.5 � 5.42  � 9.2  � 9.3

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission's decision affirms the administrative law judge's findings with regard to concurrent jurisdiction in this case. However, the administrative law judge mistakenly gave the respondents credit for the amount paid under the Federal Act without giving the applicant credit for the temporary total disability due under the Wisconsin Act. The commission's partial reversal was done as a matter of law and did not involve any credibility considerations.

cc: 
Attorney Holly Lutz
Attorney Joseph J. Ferris

Note: The decision as reproduced here reflects a technical amendment made on February 6, 2003.

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uploaded 2002/02/25