ROBERT W JAEGER, Applicant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Employer

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's findings and order dated August 30, 2002. The employer submitted an answer.

The commission has carefully reviewed the entire record in this matter and hereby reverses the findings and order below and substitutes the following therefor:

The applicant worked for the employer as a substitute teacher and claimed he suffered a work related stress injury as of October 18, 1988 due to his extended and different daily assignments to positions to which he was not qualified, certified, or trained, resulting in an emotional dysfunction which rendered him incapable of functioning. The applicant filed his request for hearing on August 10, 2000. The applicant submitted a WC-16-B from Dr. Nelson dated January 31, 1990 which indicated the applicant suffered a work related injury on October 18, 1988 and several other days when he missed work due to a traumatic injury as well as an occupational disease injury. Dr. Nelson's notes indicate the applicant suffered an anxiety stress reaction secondary to job problems. A pre-hearing was held on May 27, 2001 and the administrative law judge's notes at the pre-hearing indicate the applicant was claiming a mental stress injury based on the employer placing him in academic classes as a substitute teacher, when his training and certification was only as a high school shop teacher.

Subsequently a notice of hearing was sent on November 13, 2001 for a hearing on January 28, 2002. The hearing was dismissed without prejudice. The administrative law judge noted the dismissal was on the applicant's request to withdraw the pending application, and if the applicant refiles his claim, he must appear and pursue his claim, as any future dismissal would be with prejudice.

The applicant subsequently filed a new application for hearing on March 4, 2002 making the same claim for a work-related occupational stress injury on October 18, 1988. Without further hearing or notice an order was issued dismissing the applicant's application for hearing with prejudice for lack of jurisdiction for failure to meet the timeliness guidelines under Wis. Stat. § 102.17(4).

Under Wis. Stat. § 102.17(4) the right of an employee, the employee's legal representative or a dependent, to proceed shall not extend beyond 12 years from the date of the injury or death, or from the date the compensation, other treatment or burial expenses were last paid or would have been last payable if no advancement were made, which ever day is the latest. However, the statute also provides that in case of an occupational disease there shall be no statute of limitations, except that benefits or treatment expense becoming due after 12 years from the date of injury or death, or last payment of compensation, shall be paid from the work injury supplemental benefit fund under Wis. Stat. § 102.65 as provided in Wis. Stat. § 102.66.

In this case Dr. Nelson indicated in his WC-16-B which was filed with the applicant's application for hearing in March 2002 the applicant suffered not only a traumatic injury, but an occupational disease type injury, due to stress on the job. Therefore, under Wis. Stat. § 102.17(4) the applicant's claim could not be dismissed with prejudice for failure to meet the statute of limitations, since the claim is at least in part for an occupational disease type injury which has no statute of limitations provided in the statutes. It is certainly understandable that the department took the action to dismiss the applicant's claim with prejudice. The applicant clearly had an extended period of time in order to prepare for his hearing in January 2002 but failed to prepare adequately to present his claim. However, Dr. Nelson indicated the applicant suffered an occupational disease type injury which has no statute of limitations under Wis. Stat. § 102.17(4). Therefore, the commission reverses the administrative law judge's order and remands to the department to proceed with the applicant's claim for an occupational disease type injury.

NOW, THEREFORE this

The findings and order of the administrative law judge are reversed and the commission's findings and order substituted therefor. The applicant's claim for an occupational disease type stress injury is reinstated and remanded to the department for further action.

Dated and mailed November 26, 2002
jaegero . wrr : 175 : 1  ND § 8.47 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: Attorney Heidi Wick Spoerl

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