ROBERT SCHILPP, Applicant

SARA LEE CORP, Employer
HILLSHIRE FARM & KAHNS

THE TRAVELERS INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-034851

This case arises on an application for hearing filed on September 22, 2004, with respect to a November 20, 1986 date of injury.

On April 28, 2005, an administrative law judge (ALJ) for the Department of Workforce Development, Worker's Compensation Division, issued a decision dismissing the application for hearing without prejudice for lack of jurisdiction due to the statute of limitations. The applicant filed a timely petition for commission review on May 3, 2005. The employer and its insurer (collectively, the respondent) filed an answer on May 27, 2005. The respondent contends that the ALJ correctly dismissed the application, but should have done so with prejudice as the statute of limitations has passed.

The materials transmitted to the commission with respect to this file document the apparent payment of medical expense, but not disability indemnity, within 12 years of the date of the application. Payment of compensation for medical expense is insufficient to stop the running of the statute limitation under Wis. Stat. § 102.17(4).

However, the ALJ dismissed "without prejudice," thus permitting the applicant to file another application based on the 1986 date of injury if he can show an intervening payment of indemnity compensation sufficient to stop the statute of limitations from running. The ALJ's order therefore cannot be said to award or deny compensation on the claim, at least in any final sense, so the commission has no jurisdiction to review the ALJ's order. See Wis. Stat. § 102.18(3). Accordingly, the petition for review shall be dismissed.

The respondent suggests the ALJ should have dismissed the application "with prejudice" because the statute of limitations has run. Taking this argument further, it might follow that the commission could accept jurisdiction of the petition, and amend it to dismiss with prejudice, thus finally disposing of the September 22, 1986 date of injury. However, the ALJ's decision to issue what is essentially a nonfinal order under these circumstances is a discretionary act involving the management of the Worker's Compensation Division calendar and internal scheduling affairs, to which the commission generally accords deference. Accordingly, the commission declines to take jurisdiction to modify the ALJ's order.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

Dated and mailed June 23, 2005
schilpp . wpr : 101 : 8  ND § 8.47  § 9.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The applicant's petition for review suggests that he amended his application to claim an October 1994 date of injury which would not yet be barred by the 12-year statute of limitations. It appears from a January 2005 letter from ALJ Walter D. Thurow to the applicant that the department asked the applicant to provide a basis for an amendment of his hearing application. It also appears from the file that the applicant may have forwarded documents to the department in an attempt to provide that basis. The applicant should contact the Worker's Compensation Division to determine the status of his October 1994 claim and whether additional documentation needs to be supplied.

cc: Attorney Mark P. McGillis

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2005/06/24