JAMES R VEITH Applicant
HIGHSMITH CO INC Employer
WEST AMERICAN INS CO Insurer
No. 1993-0177579
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
January 20, 2021
Attorney Peter L. Topczewski
Attorney John D. Neal
WORKER'S
COMPENSATION DECISION1
Michael H. Gillick, Chairperson
Interlocutory
Order
The
commission affirms the decision of the administrative law
judge (ALJ) issued in this matter on May 6, 2020.
Accordingly, within 30 days from this date, Highsmith
Company, Inc. and West American Insurance Company
(respondents) shall pay out-of-pocket medical expense to the
applicant, James R. Veith, in the amount of Nine dollars
($9.00); and to applicant's attorney, John D. Neal, fees
in the amount of One dollar ($1.00).
In
accordance with the terms of the limited compromise agreement
approved by department order issued on February 21, 1995, and
the findings made herein, jurisdiction is reserved solely
with respect to further medical expense claims.
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner
Procedural
Posture
On
March 16, 2009, the applicant filed a hearing application
claiming compensation for medical expense attributable to a
work injury sustained on March 5, 1990. Jurisdictional facts
were conceded, as well as certain temporary disability and
permanent partial disability. A limited compromise was
reached and approved by department order issued on February
21, 1995. Respondents asserted a statute of limitations
defense relative to the claim for additional medical expense.
Based
upon stipulated facts, an ALJ of the Department of
Administration, Division of Hearings and Appeals, Office of
Worker's Compensation Hearings issued a decision on May
6, 2020, in which the ALJ found that the statute of
limitations, Wis. Stat. § 102.17(4), did not preclude
the applicant from filing his application for additional
medical expense on March 16, 2009. Respondents timely filed a
petition for commission review of the ALJ's decision.
The
commission has reviewed the stipulated evidence, considered
the petition, and considered the positions of the parties as
set forth in their briefs. Based on its review and analysis,
the commission agrees with the decision of the ALJ. The
commission adopts as its own the findings and conclusions
made in that decision.
Memorandum
Opinion
The
following is intended to supplement rather than to supplant
any of the findings made in the ALJ's decision. Its
purpose is to fully articulate the commission's analysis
of the case, and in the process, explain why it has affirmed
the ALJ's decision.
The
applicant sustained a conceded back injury on March 5, 1990.
He underwent failed surgeries and respondents paid the claim,
including a concession of 75 percent permanent partial
disability that they began paying. However, the applicant
claimed permanent total disability (PTD), and he also claimed
an unspecified amount of utility bills as a medical expense.
The parties agreed to a limited compromise (LC) that was
approved by department order issued on February 21, 1995. The
LC recounted the applicant's claims for PTD and utility
bills, the fact that respondents had conceded and begun
payment of 75% permanent partial disability (PPD), and the
fact that respondents were claiming a $22,704.71 overpayment
because their PPD payments had not taken into account the
SSDI2
offset that reduced the dollar amount of PPD actually owed to
the applicant. The LC provided for a lump sum payment of
$85,000, less attorney fees/costs, as settlement for all
issues, except medical expenses incurred after January 26,
1995. In the LC, respondents waived the $22,704.71
overpayment, but specifically held open the right to raise
any defenses available with respect to medical expenses that
might be claimed pursuant to the exception for that issue.
This language retained respondents' right to raise the
statute of limitations defense.
In
accordance with the terms of the LC, the department's
authority to approve compromises,3 and the department's
authority to restrict the terms under which a lump sum
compromise settlement is paid out to an
applicant,4 the department issued its order approving
the compromise on February 21, 1995. It...
