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

DAVID SMIEZEK, Applicant

MOORHEAD MACHINERY & BOILER CO, Employer

TWIN CITY FIRE INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-006745


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on August 9, 2004. Moorhead Machinery & Boiler Company and Twin City Fire Insurance Company (respondents) submitted an answer to the petition, and briefs were submitted by the parties. At issue are: (1) whether the applicant is precluded from filing a worker's compensation claim in Wisconsin because he entered into a worker's compensation settlement in Minnesota; and (2) whether or not Wisconsin has jurisdiction over the applicant's worker's compensation claim, pursuant to Wis. Stat. § 102.03(5).

The commission has carefully reviewed the entire file 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 is a Wisconsin resident but belongs to a boilermaker's union local located in Kansas City, Kansas. A union representative from the Kansas City local telephoned the applicant at his home in Wisconsin and informed him of a job with a Minnesota company (Moorhead Machinery & Boiler Company) that was to be performed in Iowa. The applicant secured the job and injured his neck and low back while working on it in Iowa on October 24, 1992.

On February 18, 2000, the applicant, Moorhead, Twin City Fire Insurance Company, and Boilermakers National Health and Welfare Fund entered into a settlement under Minnesota's Workers' Compensation Act. The applicant had previously received an unspecified amount of worker's compensation under Iowa's Workers' Compensation Act. The Minnesota settlement paid the applicant a lump sum of $11,000, minus attorney fees and costs, as well as certain medical bills and reimbursement to the Boilermakers Fund, in exchange for "full, final and complete settlement of all claims for workers' compensation benefits arising out of the foregoing alleged injury. . . including . . . any other benefits he may be entitled to pursuant to the terms of the Minnesota, Iowa or Wisconsin Workers' Compensation Act or any other state. . ." (An exception was provided for future medical bills payable under the Iowa Act.)

In Thomas v. Washington Gas Light Company, 448 U.S. 261 (1980), Thomas was a resident of the District of Columbia but was injured in Virginia. He applied for and received temporary disability benefits from Virginia. Subsequently, he applied for permanent total disability in the District of Columbia. The court held that Thomas was entitled to claim compensation in the District of Columbia, but the Justices were split as to why he could do this. Four of them believed that no state's worker's compensation award should prevent an award in another state (as long as the compensation awarded in the first state was credited against any award in the second state). Three concurring Justices allowed Thomas' second recovery under the rationale of Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622 (1947). The McCartin court held that the second state's award should be permitted only if the first state's worker's compensation law did not contain "unmistakable language" to the effect that the first state's award was exclusive and foreclosed any subsequent award by another state. Since there was no majority agreement in Thomas to overturn the McCartin holding, the "unmistakable language" rationale continues to be the law. It was noted in Thomas, and is also noted in Professor Arthur Larson's treatise on worker's compensation, (1)   that the only state with this "unmistakable language" in its compensation act is Nevada. Whether or not Nevada remains the only such state, it is clear from the commission's review of the Iowa and Minnesota Acts that they do not contain such language. Accordingly, a worker's compensation award in Iowa or Minnesota does not preclude a subsequent worker's compensation award in Wisconsin.

The applicant's case is complicated by the fact that it involves a settlement under the Minnesota Act which by its terms foreclosed a subsequent claim under the Wisconsin Act. These factual circumstances were not present in either Thomas or McCartin. Clearly, there are competing concerns in this case.  It could be argued that equity calls for rejection of the applicant's Wisconsin claim, given his agreement in the Minnesota settlement to forego such claim. However, worker's compensation in Wisconsin is a statutory right, and a substantial number of equitable considerations and trade-offs between labor and management have gone into the legislature's creation of Chapter 102. (2)   Chapter 102 is a legislative act, and the commission and the department are statutory bodies empowered to administer this Wisconsin Act, not to do equity. (3)   Wis. Stat. § 102.16(1), and Wis. Admin. Code ch. 80.03 provide that all compromise agreements must be submitted to "the department" for approval, and "the department" is the Wisconsin Department of Workforce Development. There can be no compromise of Wisconsin worker's compensation liability unless department approval is granted, (4)   and no such approval was granted in the applicant's case. In short, the applicant's right to worker's compensation under Chapter 102 must be determined by the Wisconsin Department of Workforce Development, and by the commission if there is an appeal of the department's adjudication.

The U. S. Supreme Court has given us divided opinions with regard to how the full faith and credit clause of the U. S. Constitution should be applied in the circumstance of multi-state worker's compensation claims. As noted above, the clearest holding to be gleaned from these decisions is that without the "unmistakable language" in the worker's compensation law of the first-claim state, the injured worker is not foreclosed from filing a supplemental claim in a subsequent state. That holding is consistent with the applicant filing a Wisconsin claim in this case. Of course, any compensation the applicant may be entitled to receive under the Wisconsin Act is subject to offset by the amounts received under the Iowa Act and under the Minnesota settlement.

The administrative law judge's decision did not address the other issue in this case, which is whether or not the applicant's contract for hire with Moorhead Machinery & Boiler was legally made in Wisconsin. Wis. Stat. § 102.03(5)(b) is the relevant statute and provides that Wisconsin has jurisdiction over an injury when the applicant:

"(b). . . is working under a contract of hire made in this state in employment not principally localized in any state."

The administrative law judge did not hold a hearing because he believed he could dispose of the case by making the legal finding that the applicant's claim was precluded by the Minnesota settlement. Accordingly, there is no factual record that would allow the commission to determine whether or not a contract of hire was made in Wisconsin. The matter will be remanded for opportunity for hearing with regard to the issue of jurisdiction under Wis. Stat. § 102.03(5).

NOW, THEREFORE, this

ORDER


The Findings and Order of the administrative law judge are reversed. Neither the applicant's Minnesota settlement nor the worker's compensation he received pursuant to the Iowa Act preclude his claim for Wisconsin worker's compensation. The matter is remanded to the department for opportunity for hearing with respect to the issue of whether or not Wisconsin has jurisdiction over the applicant's worker's compensation claim, pursuant to Wis. Stat. § 102.03(5).

Dated and mailed April 28, 2005
smiezda . wpr : 185 : 8  ND § 2.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner


cc:
Attorney William G. Skemp
Attorney James G. Budish



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Footnotes:

(1)( Back ) See Arthur Larson, Larson's Workers' Compensation Law (Section 141.04, May 2000).

(2)( Back ) See Melzer v. Cooper Industries, Inc., 177 Wis. 2d 609, 614, 503 N.W. 2d 291 (Ct. App. 1993).

(3)( Back ) See South Side Roofing & Material Co. v. Industrial Commission, 252 Wis. 403, 409, 31 N.W. 2d 577 (1948).

(4)( Back ) See Wis. Stat. § 102.16

 


uploaded 2005/05/02