Wis.LIRC WC Decision: Chason, Michele - August 24, 2005 - ND � 8.47 - Statute of Limitations; � 10.3 - Compromise -- 1986 injury was compromised in 1992 - statute of limitations runs from date of injury or date payment of compensation last made for injury - compensation received under 1992 compromise, extended statute of limitations to 2004, so 2/2004 application timely - ALJ's 7/2005 dismissal order, intended to spur applicant to provide necessary release forms to the insurance carrier, would foreclose ability to continue claim

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

MICHELE T CHASON, Applicant

NATIONAL REALTY MANAGEMENT, Employer

NORTHERN INSURANCE CO OF NY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1986-057112

The applicant submitted a petition for commission review alleging error in the administrative law judge's dismissal order issued in this matter on July 12, 2005. The administrative law judge dismissed the applicant's application without prejudice due to applicant's failure to provide medical record release authorizations to the insurance carrier. The applicant has asserted that the medical record releases have now been provided to the carrier; however, the applicant requests relief due to the fact that the 12-year statute of limitations (Wis. Stat. § 102.17(4)) has expired on her claim for an alleged October 1986 date of injury, thus preventing her from filing another application for hearing.

The commission hereby makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant filed an application for hearing on May 2, 1991, claiming a low back injury with a date of injury on October 21, 1986. On March 9, 1992, the department issued an order approving a full and final compromise of the applicant's claim, except for liability for future reasonable and necessary medical expense. On February 20, 2004, the applicant filed a new application for hearing, claiming additional medical expense for a new surgery, as well as temporary total disability, both stemming from the alleged work injury of October 21, 1986. Respondents answered this application with a complete denial, including the issue of work causation.

First, neither the department nor the commission retains any jurisdiction over the applicant's claim for temporary total disability, or for any other compensation stemming from the alleged October 1986 work injury, except for reasonably required medical expense. The March 1992 compromise, which cannot now be reopened, was a full and final compromise of all claims except for future medical expense.

Second, the applicant was entitled to file a new application for hearing on February 20, 2004, relative to the issue of medical expense. Wis. Stat. § 102.17(4) allows applications to be filed within 12 years from the date of injury or from the date that compensation, other than treatment or burial expenses, was last paid. Compensation includes all "allowances, recoveries and liabilities" under Chapter 102 of the Wisconsin Statutes (see Wis. Stat. § 102.01(1)). This includes recoveries received as the result of compromises approved under Wis. Stat. § 102.16(1). The applicant received compensation in the compromise of March 9, 1992, thus extending the period for filing a new application for medical expense to March 9, 2004.

Third, the administrative law judge's dismissal order of July 12, 2005, which was intended to spur the applicant into providing the necessary medical release forms to the insurance carrier, would have the unintended effect of foreclosing the applicant's ability to continue her claim for medical expense. This is because even though the dismissal order was without prejudice, its dismissal of the application would leave the applicant without a pending claim after the statutory deadline of March 9, 2004. Were the administrative law judge's dismissal order to be affirmed by the commission, the 12-year limitation of Wis. Stat. § 102.17(4) would preclude the filing of any claim for medical expense related to the alleged October 1986 work injury.

Accordingly, the commission will set aside the administrative law judge's dismissal order. Assuming the applicant has provided the insurance carrier with the necessary medical release forms, she may continue to pursue her claim for medical expense attributable to the alleged work injury of October 21, 1986, that was begun with her application filed on February 20, 2004. That portion of her application claiming temporary total disability is dismissed because all claims for compensation attributable to the alleged work injury of October 21, 1986, other than future medical expense, were foreclosed by the compromise of March 9, 1992.

Now, therefore, this:

INTERLOCUTORY ORDER

The administrative law judge's dismissal decision is set aside. The application for medical expense attributable to the alleged work injury of October 21, 1986, and accruing after March 9, 1992, remains open. This includes the issue of work causation for the alleged October 1986 work injury. The application for temporary total disability is dismissed.

Dated and mailed August 24, 2005
chasomi . wrr : 185 : 4 ND � 8.47 � 10.3

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Although the applicant requested a briefing schedule, the issues in this matter are straightforward and briefing was deemed unnecessary.

cc:
Attorney Lynn M. Zuehlsdorf-Mack
Attorney Edward W. Stewart

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