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

LARRY GRAY, Applicant

CITY OF MILWAUKEE, Employer

CITY OF MILWAUKEE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997-048196


The self-insured employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on April 2, 2004. The applicant submitted a response to the petition. At issue is whether any grounds exist to reopen the compromise that the parties entered into in August of 2002, and that was approved by department order dated September 4, 2002.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The applicant claimed a series of work-related back injuries allegedly occurring while he was working as a garbage truck driver for the employer, the City of Milwaukee. It is unclear whether it was an occupational disease or a traumatic injury claim, but the City denied liability. The applicant entered into a compromise agreement with the City in August 2002, whereby the City paid a total of $49,000. Twenty percent of this amount plus $2,866 in costs went to applicant's attorney. The department approved the compromise in an order issued on September 4, 2002.

On May 12, 2003, the applicant underwent a two-level lumbar fusion procedure performed by Dr. Spencer Block. On June 9, 2003, the applicant submitted a request to reopen the compromise, asserting in his request:

"It was unjust because my employer and my attorney were well aware that at some point I was going to need surgery on my back."

A hearing was held before Administrative Law Judge Thomas Jones and on April 26, 2004, ALJ Jones issued an order reopening the compromise on the basis that the applicant's surgery was a significant new development unanticipated by both parties.

Wisconsin Stat. § 102.06(1) allows either party to request a review of compromise within one year from the date the compromise was entered into, but gives no guidance as to when or why a compromise should be set aside. The commission has consistently held that compromises should not be reopened absent gross inequity, important newly-discovered evidence, fraud, duress, or mutual mistake. Michael Blenke v. American Can Company, WC Claim No. 87-037750 (LIRC, September 9, 1992); Julie Stuart-Giese v. Schoeneck Containers, Inc., WC Claim No. 85-060165 (LIRC, February 5, 1990). Compromises are not lightly set aside because a compromise of a worker's compensation claim under sec. 102.16(1), Stats., encompasses qualities of comprehensiveness, finality, and risk. Indeed, "[b]y using the word 'compromise' we usually mean that we assume the risk of a mistake for which otherwise one would be entitled to a different result." C. F. Trantow v. Industrial Commission, 262 Wis. 586, 589 (1952).

In its petition, the City points out that at the time of the compromise the medical records demonstrate that spinal fusion surgery was discussed with the applicant, but he was not interested in subjecting himself to it. In his argument to the commission, the applicant writes:

"I was never advised by any of the doctors that I must have back surgery. Surgery was an option, but it was not imperative."

Clearly, the applicant was aware of the possibility of surgery at the time he entered into the compromise. The applicant may or may not have made a "bad deal" when he agreed to the terms of the compromise in August 2002, but he did agree to those terms in full and fair contemplation of the risks, including the possibility of surgery. His surgery does not present an issue of newly-discovered evidence, nor does it invoke any of the other reasons for reopening a compromise.

The applicant also asserts in his petition to the commission that he was misled by the City and his union into believing he would receive a duty disability pension. At the hearing he indicated that at the time he entered the compromise he thought he might qualify for duty disability payments, but he did not offer any assertion or evidence that he had been misled by the employer. Eligibility for duty disability benefits is established by statutory criteria found in Wis. Stat. § 40.65. Those criteria were in effect long before August 2002. If the applicant based his decision to accept the compromise partly on the hope that he would qualify for duty disability benefits, he took another known risk. No evidence was presented that the employer misled him in this regard, or with respect to any other aspect of the compromise.

Accordingly, for all the reasons noted above, the application for reopening the compromise will be dismissed.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are reversed. The application for reopening the compromise approved by department order on September 4, 2002, is dismissed.

Dated and mailed March 28, 2005
grayla . wpr : 185 : 8  ND § 10.3

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc: Attorney Heidi Wick Spoerl


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