MARK KRIESCHER Employee
CLASSIC MODULAR SYSTEMS Employer
NEW HAMPSHIRE INSURANCE CO Reverse Applicant Insurer
WORK INJURY SUPPLEMENTAL BENEFIT FUND Supplemental Benefit Insurer
Claim No. 1988-023831
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
July 26, 2019
Attorney Michael C. Frohman
Assistant Attorney General Peter S. Rank
WORKER’S COMPENSATION DECISION
1
Michael H. Gillick, Chairperson.
Order
The
commission reverses the decision of the
administrative law judge issued in this matter on September
17, 2018. The matter is remanded to the
Department of Administration, Division of Hearings and
Appeals, Office of Worker's Compensation Hearings, for
submission to the Department of Workforce Development,
Division of Worker's Compensation, for calculations
consistent with the commission's decision entered herein.
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner
Procedural
Posture
On July
25, 2012, New Hampshire Insurance Company (insurer) submitted
a reverse application challenging the Worker's
Compensation Division's method of calculating the amount
due the applicant from the insurer for permanent total
disability, after the addition of supplemental benefits and
the application of the social security disability offset.
There was a lengthy delay in the matter, apparently due to a
misunderstanding regarding the nature of the claim, and the
fact that in lieu of a formal hearing the insurer was
requesting a decision based upon stipulated facts and
submission of briefs. Subsequently, and based upon conceded
facts in lieu of a formal hearing, simultaneous briefs
addressing the disputed issue were submitted by the insurer
and by the Work Injury Supplemental Benefit Fund (WISBF).
The
employee did not participate in the proceeding because the
dispute is between the insurer and the WISBF regarding which
of these two entities should receive credit for the social
security disability offset (SSDI), thereby reducing the
amount of compensation due from the party receiving the
credit. The actual amount of compensation the applicant has
received and will receive will not be affected by the outcome
of this controversy.
The
commission has reviewed the conceded facts and considered the
petition and the positions of the parties. Based on its
review and analysis, the commission makes the following:
Findings
of Fact and Conclusions of Law
1. On
or about April 13, 1988, the applicant sustained a
compensable, traumatic injury that resulted in paraplegia. A
hearing application was filed on January 2, 1990, claiming
permanent total disability (PTD). The insurer (New Hampshire
Insurance Company) conceded PTD, but a hearing was held
solely with respect to a dispute over whether the applicant
was entitled to the maximum weekly wage presumption of Wis.
Stat. § 102.11(1)(g), because he was under the age of 27
at the time of the injury.
2 The ALJ found that the applicant was
entitled to the presumption of the maximum weekly wage, which
in 1988 was $522. On appeal, the commission partially
reversed the ALJ's decision and found that the
applicant's average weekly wage should be fixed at
$425.
3 The commission's
decision was not appealed, and the insurer began paying PTD
based on the commission's $425 weekly wage finding.
2.
Pursuant to Wis. Stat. § 102.44(5), the regular amount
due from the insurer for PTD (which initially was $283.33 per
week, based on 2/3 of $425) was offset (reduced) effective
with the date the applicant began receiving social security
disability insurance payments (SSDI). The reduction was in
the amount the monthly PTD payments, plus the SSDI benefits
paid to the applicant, exceeded 80 percent of the
applicant's average current earnings as calculated by the
social security administration.
4 This SSDI reduction was calculated to
amount to $85.62, resulting in the insurer's net outlay
of $197.71 per week ($283.33 minus $85.62) for the PTD
payment.
3.
Effective April 1, 2008, the applicant became eligible for
supplemental benefits, which are benefits paid in
addition to the normal compensation amount paid for
PTD.
5 The calculations
performed per the statutes and the Social Security
Administration resulted in supplemental benefits due in the
amount of $83.05. When this $83.05 was added to the $197.71
per week previously being paid to the applicant, the amount
of his net weekly payment became $280.76 ($197.71 plus
$83.05). The insurer began paying the applicant this $280.76.
4. The
current controversy is based upon the question of how Wis.
Stat. § 102.44(1)(c), should be applied to the
above-described circumstances. Wis. Stat. § 102.44(1)(c)
(2007-08), provides:
(c) The employer or insurance carrier paying the supplemental
benefits required under this subsection shall be entitled to
reimbursement for each such case from the fund established by
s. 102.65, commencing one year from the date of the first
such payment and annually thereafter while such payments
continue. Claims for such reimbursement shall be approved by
the department.
Wis.
Stat. §102.65 (2007-08), provides:
(1) The moneys payable to the state treasury under ss.
102.35(1), 102.47, 102.49, 102.59, and 102.60, together with
all accrued interest on those moneys, and all interest
payments received under s. 102.75(2), shall constitute a
separate nonlapsible fund designated as the work injury
supplemental benefit fund. Moneys in the fund may be expended
only as provided in s. 20.445(1)(t)[6 ] and may not be used for any other
purpose of the state.
(2) For proper administration of the moneys available in the
fund the department shall by order, set aside in the state
treasury suitable reserves to carry to maturity the liability
for
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