MARK T BOESHARR, Applicant

JEFFS FAST FREIGHT, Employer

EMCASCO INSURANCE CO, Insurer

The applicant's attorney submitted a petition for commission review alleging error in the administrative law judge's order issued in this matter on December 16, 2003. The administrative law judge's order dismissed the applicant's application without prejudice because of payment of the claim. The applicant's attorney asserted that the administrative law judge violated due process by failing to award attorney fees and costs in her dismissal order of December 16, 2003.

Wis. Stat. § 102.18(3) provides that a "party in interest" may petition the commission for review of a department order "awarding or denying compensation." An attorney representing an applicant in a worker's compensation proceeding is not a "party in interest" under the statute. Eisenberg v. DILHR, Dept., 59 Wis. 2d 98, 105, 207 N.W.2d 874 (1973); Cranston v. Industrial Commission, 246 Wis. 287, 289, 16 N.W.2d 865 (1944).

Neither does an order that dismisses a claim without prejudice award or deny compensation. Vidal v. LIRC, 2002 WI 72 16, 253 Wis. 2d 426, 436, 645 N.W.2d 870. The term "compensation" applies only to the monetary awards paid to the worker and his/her medical providers for his/her loss, and not to attorney fees. Eisenberg v. DILHR Dept., 59 Wis. 2d at 105; Cranston v. Industrial Commission, 246 Wis. at 289.

Accordingly, the commission has no jurisdiction over the applicant's attorney's claims for unpaid fees and costs. Furthermore, judicial review of department/commission orders is statutory under Wis. Stat. § 102.23, and that statute also provides review only for orders or awards "granting or denying compensation" (see Wis. Stat. § 102.23(1)(a)). An order such as the one at issue is therefore not subject to constitutional challenge. Meyer v. Industrial Commission, 13 Wis. 2d 377, 383-84, 108 N.W.2d 556 (1991); Cranston v. Industrial Commission, 236 Wis. at. 291.

Accordingly, the commission has no jurisdiction to review the applicant's attorney's petition. This does not mean that the commission agrees or disagrees with the attorney's claims for certain fees and costs. Regardless of the validity of those claims, the commission has no jurisdiction to address them.

NOW, THEREFORE, this

The petition for commission review is dismissed due to lack of jurisdiction.

Dated and mailed February 12, 2004
boeshma . wpr : 185 : 8   ND § 1.5   § 9.2 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney S. A. Schapiro

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