RICHARD C HINZE (DEC'D), Applicant

REVCO/LINDBERG, Employer

TRAVELERS PROPERTY CAS CO OF AMERICA, Insurer

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.

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

Dated and mailed March 30, 2005
hinzeri . wsd : 175 : 8   ND § 8.46 § 8.48

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant, the deceased employee's surviving spouse, contends in her petition for commission review the administrative law judge erred in determining the applicant can not pursue a claim for permanent and total disability based on the deceased employee's compensable occupational mesothelioma which led to his death on April 12, 2002. The applicant asserts that the deceased employee did file a claim and was told by the employer that it was accepted as a compensable claim. The applicant states that this claim involves an insurer's attempt to reverse the acceptance of a worker's compensation claim without informing the employee, and then taking advantage of his death to avoid paying disability benefits.

However, the commission finds that the administrative law judge appropriately determined the deceased employee's surviving spouse does not have a right to bring a claim for permanent and total disability for the period of February 2001 to April 12, 2002. Mr. Hinze, the deceased employee, did not bring a claim for permanent total disability during his lifetime. Although the employer was aware of Mr. Hinze's compensable mesothelioma, there was no contention the deceased employee ever notified the employer of a claim for permanent total disability. In fact, there was no medical support for a claim of permanent total disability prior to Mr. Hinze's death.

The Wisconsin Supreme Court has held that neither an estate nor a dependant spouse may start on behalf of a deceased worker, a claim not brought by a deceased worker during his lifetime. State v. LIRC, 136 Wis. 2d 281 (1987). In State v. LIRC, the deceased employee's surviving spouse brought a claim for total disability benefits from the date of the deceased employee's retirement to the date of his death, a situation similar to our current case. The deceased employee had never filed a claim for total disability benefits during his lifetime. The Supreme Court noted that no statute specifically confers upon a surviving spouse the right to make a claim for total disability benefits not claimed by a deceased worker, nor does any section of the Worker's Compensation Act provide that a spouse can assert such right not asserted by the deceased. State v. LIRC, 136 Wis. 2d 281 at 287. The Supreme Court stated that the Compensation Act is devoid of any suggestion that a dependant can, after the death of the worker, claim benefits that the worker chose not to claim. The Supreme Court noted, with approval, the fact the surviving spouse may claim the death benefits as she has in our current case, when death results from the injury, and the deceased leaves a person to depend upon him for support.

The Supreme Court reasoned in State v. LIRC, the meaning of the statute is that the deceased employee's spouse has no interest in her husbands claim for disability benefits, nor in any compromise he might have made had he claimed the benefits or entered into a settlement during his lifetime, and therefore it follows that if a spouse is not a party in interest to an employee's claim or compromise, the spouse did not have an interest in the claim after the employee's death for disability benefits not claimed by the employee during his lifetime. The commission reached a similar result in the case of Earley v. City of Kenosha, Commission Decision dated December 20, 1999. In the Earley decision the commission rejected the deceased employee's surviving spouse's claim for an occupational back injury or neck injury after the deceased employee's death due to a non-work-related reason. The deceased employee's spouse in the Earley case contended that since treatment for a back problem had commenced prior to the deceased employee's death, she should not be barred from now making the claim for permanent disability. However, the commission noted that subsequent to his last day of work with the employer, the deceased employee had an opportunity to file a claim for an occupational back injury, as well as a neck injury, but failed to do so. The commission stated that the employer had paid benefits for a traumatic low back injury prior to the deceased employee's death, but had not conceded or paid any benefits for an occupational back injury or neck injury, and there was no assessment of permanent partial disability to the back prior to the deceased employee's death.

Given the fact that Mr. Hinze did not file a claim for permanent total disability benefits prior to his death and there was no medical support for such a claim, and the employer was not notified of any claim for permanent and total disability benefits prior to Mr. Hinze's death, and based on the decision in State v. LIRC, as well as Earley v. The City of Kenosha, the commission finds the deceased employee's surviving spouse cannot pursue a claim not started by her deceased husband. Therefore, the administrative law judge dismissed the applicant's claim.

cc:
Attorney Bruce A. Ranta
Attorney Ahmed J. Quereshi
Attorney Jennifer Lattis
Abby Butler
Joan Hinze

Appealed to Circuit Court.

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