Kriescher, 072619 WIWC, 1988-023831

Case DateJuly 26, 2019
CourtWisconsin
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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