GARY M MARKOWSKI, Applicant
MILWAUKEE FORGE, Employer
TRANSCONTINENTAL INSURANCE CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on January 4, 2005, which dismissed the applicant's claim against Milwaukee Forge and Transcontinental Insurance Company for an occupational hearing loss with a date of injury of January 13, 2000. Milwaukee Forge and Transcontinental Insurance submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the claim was properly dismissed.
The commission has carefully reviewed the entire record in this matter and hereby sets aside the administrative law judge's Findings and Order, and substitutes therefor the following:
The applicant claimed that he sustained a work-related back injury occurring on January 13, 2000, while working for Milwaukee Forge. He further claimed that the back injury resulted in permanent total disability. Transcontinental Insurance was on the risk and disputed the claim, both with respect to causation and extent of disability. A full and final compromise was reached for a consideration of $300,000, and the department approved the compromise in an order issued on October 2, 2003.
On April 5, 2004, the applicant filed a hearing application claiming compensation for occupational hearing loss with a date of injury of "5/2002." May 1, 2002 was the applicant's retirement date. Employer's Insurance of Wausau was on the risk in May 2002, and their counsel asserted that Transcontinental should be the insurer on the risk because the applicant's last day of work was January 13, 2000, and that would be the date of injury pursuant to Wis. Stat. § 102.555(4)(b). (1) In response, the department impleaded Transcontinental.
Transcontinental protested, asserting that the compromise agreement settled any and all of the applicant's possible compensation claims against it for a date of injury of January 13, 2000. On January 4, 2005, the administrative law judge (ALJ) issued an order dismissing the applicant's claim for compensation arising out of an injury claimed to have occurred on January 13, 2000. He explained in his decision that the compromise involving Transcontinental had been full and final, and that it contained no reservation of jurisdiction for any claim with a date of injury of January 13, 2000.
The applicant has petitioned and argues that his due process rights were violated by the issuance of an order without a hearing, because he never had the chance to be heard with regard to the scope of the compromise. He also argues that the compromise was limited to his claim for a back injury and cannot be relied upon to foreclose his occupational hearing loss claim, which was not at issue at the time of the compromise. Transcontinental argues that the ALJ's dismissal order is not reviewable because it does not award or deny compensation. It also argues that the compromise is a complete bar to any claim with a date of injury of January 13, 2000, because the applicant claimed permanent total disability for his back injury occurring on that date; and also because, by its terms, the compromise released the employer and Transcontinental from "any and all liability" under the Act for any injury sustained on January 13, 2000.
The ALJ's order dismissed the claim for occupational hearing loss against Transcontinental and therefore denied compensation. His order is therefore reviewable by the commission. See Wis. Stat. § 102.18(3), which allows parties to petition the commission for review of department orders awarding or denying compensation.
The applicant's argument that he is entitled to a hearing must be analyzed in two parts. First, he argues for a hearing that would address his hearing loss claim against Transcontinental, for a date of injury occurring on January 13, 2000. The applicant is not entitled to a hearing for such claim, because the October 2003 compromise unambiguously resolved "any and all liability" claimed by the applicant against Transcontinental for an injury date of January 13, 2000. The commission disapproves of the open-ended language used in this compromise, and believes that the department should not approve compromises that profess to resolve unspecified claims with unqualified language. However, that is precisely what was done in the compromise of October 2003. It resolved any claim against Milwaukee Forge/Transcontinental with a date of injury of January 13, 2000. The compromise was approved on October 2, 2003, and there has never been a request to reopen it. It therefore became final on October 2, 2004, and the commission no longer has jurisdiction to reopen it. Accordingly, the administrative law judge acted properly in dismissing the applicant's hearing loss claim against Milwaukee Forge and Transcontinental for injury occurring on January 13, 2000.
However, the original application for hearing in the applicant's occupational hearing loss claim listed the date of injury as "5/2002," and listed the liable insurer as Employers Insurance of Wausau. Under Wis. Stat. § 102.555(4)(c), if the applicant remained in an employment status with Milwaukee Forge until May 1, 2002, then he would be entitled to bring an occupational hearing loss claim against Milwaukee Forge and Employers Insurance of Wausau for that date of alleged injury. He remains entitled to a hearing with respect to such claim.
Now, therefore, this:
The Findings and Order of the administrative law judge are set aside and the commission's Findings and Interlocutory Order are substituted therefor. The application against Milwaukee Forge and Transcontinental Insurance Company for a date of injury occurring on January 13, 2000, is dismissed. Jurisdiction is reserved with respect to the occupational hearing loss claim made against Milwaukee Forge and Employers Insurance of Wausau for a May 2002 date of injury.
Dated and mailed July 21, 2005
markoga . wrr : 185 : 4 ND § 8.9 § 10.3
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Mark P. McGillis
Attorney Thomas M. Rohe
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