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

JAMES EARLEY (DEC'D),
NANCY EARLEY, Applicant

CITY OF KENOSHA PUBLIC WORKS, Employer
c/o CITY CLERK

CITY OF KENOSHA, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998057173

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.

ORDER

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

Dated and mailed December 20, 1999
earleja . wsd : 175 : 7  ND § 8.46 § 8.48

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in determining that the application for hearing for a claim of an occupational back injury, as well as a neck injury, subsequent to Mr. Earley's death must be dismissed. The applicant contends that the employer was aware that Mr. Earley had suffered injuries to his back and neck during his employment, and that such injuries had been reported to the employer, and asserts that Mr. Earley did in fact report an occupational disease consisting of numerous incidents of injury to the low back. The applicant states that the fact Mr. Earley did not specifically articulate that he was claiming an occupational disease is not necessary nor should it act as a bar to this claim.

However, the administrative law judge appropriately noted that in State v. LIRC, 136 Wis. 2d 281, 401 N.W.2d 585 (1987) the Wisconsin Supreme Court essentially held that the employe's widow could not make a claim for benefits that were not made by the employe prior to his death. Although the applicant had complaints of neck and lower back pain prior to his death on 23, 1993 due to cancer, it was not established that he had made a claim or filed an application for hearing for any occupational back injury or neck injury. Mr. Earley's surviving spouse filed the current claim for benefits in October 1998, five years after Mr. Earley's death. The applicant contends that since treatment had commenced prior to Mr. Earley's death they should not be barred from now making a claim for permanent disability and death benefits. However, the administrative law judge also appropriately noted that subsequent to his last day of work on July 2, 1992, Mr. Earley had an opportunity to file a claim for an occupational back injury, as well as a neck injury, but failed to do so. The fact that Mr. Earley had suffered several work-related back injuries prior to his death does not establish a basis for an occupational back injury five years after his death.

The Wisconsin Supreme Court noted in State v. LIRC, that under Wis. Stat. § 102.51(5) the employe's spouse is not a party of interest and has no interest in her husband's claim for disability benefits, and therefore if the spouse is not a party in interest to an employe's claim or compromise, the spouse does not have an interest in a claim after the employe's death for disability benefits not claimed by the employe during his lifetime. In this case the employer had paid benefits for a traumatic low back injury but had not conceded or paid any benefits for an occupational back injury or a neck injury. In addition, Dr. Jackson did not assess 20 percent permanent partial disability to the lower back and five percent permanent partial disability at the neck until his report dated June 1, 1998, several years after Mr. Earley's death, and there was no actual or constructive notice of such a claim prior to his death. Based on a review of the evidence and given the fact that the applicant's wife is not a party of interest, and the fact that Mr. Earley did not file any claim for occupational low back injury or a neck injury prior to his death, and given the holding in State v. LIRC, the administrative law judge appropriately dismissed the application for hearing for a July 2, 1992 injury date.

cc:
Attorney Mark P McGillis,
Schoone Fortune Leuck, Kelley & Pitts SC

Attorney Bonni D Fredrick,
Kasdorf Lewis & Swietlik SC

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