Larson v. Wisconsin Dept. of Industry, Labor and Human Relations

• Decision Date: 29 March 1977
• Docket Number: No. 75-285,75-285
• Citation: 76 Wis.2d 595,252 N.W.2d 33
• Parties: David Harley LARSON, by his general guardian Gale Shryock, Plaintiff-Respondent, v. WISCONSIN DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, Defendant, Combustion Engineering Company and the Travelers Insurance Company, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 33

252 N.W.2d 33

76 Wis.2d 595

David Harley LARSON, by his general guardian Gale Shryock Plaintiff-Respondent, v. WISCONSIN DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, Defendant Combustion Engineering Company and the Travelers Insurance Company, Defendants-Appellants.

No. 75-285.

Supreme Court of Wisconsin.

Argued Jan. 4, 1977.

Decided March 29, 1977.

This matter is before the court on appeal from a judgment entered on April 14, 1975, which reversed an order of the ILHR Department (hereinafter Department) entered on September 19, 1973, and remanded the matter for further proceedings. The September 19, 1973, order of the Department affirmed an August 21, 1973, order of its deputy administrator which had dismissed the application of the plaintiff-respondent for workmen's compensation death benefits. This action was commenced on September 28, 1973, by the filing of a summons and complaint.

William S. Pfankuch, Green Bay (argued), Everson, Whitney, Everson, Brehm & Pfankuch, S. C., Green Bay, on brief, for appellant.

Arthur Kaftan, Green Bay (argued), Kaftan, Kaftan, Kaftan, Kuehne & Van Egeren, S. C., Green Bay, on brief, for respondent.

CONNOR T. HANSEN, Justice.

David Nelson, an employee of the defendant-appellant, Combustion Engineering Company, (hereinafter employer) was injured on June 26, 1971, during the course of his employment. He died as a result of those injuries, on June 30, 1971. At the time that he sustained the injuries, Nelson was twenty-five years old, unmarried and survived by both parents.

The defendant-appellant, Travelers Insurance Company (hereinafter Travelers), was the employer's workmen's compensation insurance liability carrier. There is no dispute that Nelson's death was work related. Shortly after Nelson's death there arose some uncertainty as to the effect of a claim by Gale Shryock that Nelson was the putative father of an unborn child. The record is unclear as to how the claim arose or was communicated to the employer, Travelers or the Department. However, on September 15, 1971, the Department informed Travelers that "(t)he girl friend and her unborn child would not be considered dependents of a deceased employe under the workmen's compensation law. . . ." and that $2,000 death benefits would be payable to Nelson's parents. Travelers subsequently paid $2,000 to Nelson's parents pursuant to sec. 102.48(1), Stats.; $500 funeral expenses pursuant to sec. 102.50; and $11,000 into the state fund pursuant to sec. 102.49(5).

On June 6, 1973, the plaintiff-respondent, David Harley Larson, the alleged illegitimate child, (hereinafter respondent) by his mother and general guardian, Gale Shryock, filed an application with the Department for death benefits under the Wisconsin Workmen's Compensation Act, arising out of the death of Nelson. The respondent alleged that he was ". . . the illegitimate child of the deceased, David Nelson and was about 3 months in the womb when David Nelson was injured and died."

On June 13, 1973, the Department notified the respondent that on its face, the application presented a case of nonliability under the Workmen's Compensation Act. The respondent continued to pursue a claim for death benefits.

On August 21, 1973, the deputy administrator of the Department dismissed the respondent's application, without hearing, stating:

"That application for death benefit was filed with the Department on June 6, 1973; that the deceased, David W. Nelsen, was not married at the time of his fatal injury on June 26, 1971; that the application alleges 'applicant is the illegitimate child of the deceased David Nelson, and was about three months in the womb when David Nelson was injured and died.' That assuming the facts as alleged in the application could be successfully established, applicant would not qualify as a dependent under the provisions of Wisconsin Statutes 102.51 and would not be entitled to a death benefit."

On August 25, 1973, the respondent petitioned the Department for review of the order of the deputy administrator pursuant to sec. 102.18(2), Stats.

On September 19, 1973, the Department issued an order affirming the August 21, 1973, order of the deputy administrator. On September 28, 1973, the respondent, pursuant to sec. 102.23, Stats., commenced an action in the circuit court for Dane county for review of the September 19, 1973, order of the Department on the grounds that:

(1) The Department acted without or in excess of its powers; and

(2) The findings of fact relied on by the Department did not support the order or award.

On April 14, 1975, the circuit court filed its memorandum decision and judgment in which it held that posthumously born children, whether legitimate or illegitimate, qualify as dependents under sec. 102.51(1), Stats. The circuit court reversed the September 19, 1973 order of the Department and remanded the matter for further proceedings. This appeal, brought by the appellant-employer, and Travelers, followed. Additional facts will be set forth in our discussion of the issue presented, which is:

Is an illegitimate posthumously born child, three months in the womb at the time of the fatal injury of his alleged putative father, a dependent under the provisions of sec. 102.51, Stats., and, therefore, entitled to payment of a death benefit under the Wisconsin workmen's compensation law?

SCOPE OF REVIEW.

The ILHR Department considered the respondent's application for death benefits as if it were a complaint to which a demurrer had been entered on the grounds that it failed to state a cause of action. Thus the facts were not in dispute and for the purposes of this appeal David Nelson is assumed to have been the father of the respondent.

The Department determined no questions of fact, but purported to determine a question of law, i. e., under the assumed facts here presented, could the respondent qualify as a dependent for death benefit purposes under the workmen's compensation law? Such a question of law, involving as it does, the statutory construction of various sections of the workmen's compensation law, was properly reviewable by the circuit court and by this court on appeal. Consolidated Const. Co., Inc. v. Casey, 71 Wis.2d 811, 816, 238 N.W.2d 758 (1976); McGraw-Edison Co. v. ILHR Dept., 64 Wis.2d 703, 713, 221 N.W.2d 677 (1974); Rohan Motor Co. v. Industrial Comm., 188 Wis. 223, 226, 205 N.W. 930 (1925); Radtke Bros. & Korsch Co. v. Rutzinski, 174 Wis. 212, 219, 183 N.W. 168 (1921). Since no question of fact was involved, neither the circuit court, nor this court on appeal are bound by the Department's determination. Black River Dairy Products, Inc. v. ILHR Dept., 58 Wis.2d 537, 543, 207 N.W.2d 65 (1973); Chamberlain v. Industrial Comm., 5 Wis.2d 411, 414, 92 N.W.2d 829 (1958); Schmidlkofer v. Industrial Comm., 265 Wis. 535, 538, 61 N.W.2d 862 (1953).

Although a question of law is involved in this appeal, two general rules recently restated by this court in DeLeeuw v. ILHR Dept., 71 Wis.2d 446, 449, 238 N.W.2d 706, 708 (1976), are applicable and deserve consideration:

"Our decisions have previously determined that whether certain undisputed facts constitute loss of employment because of a labor dispute presents a question of law. In reviewing such a question of law, this court does defer to a certain extent to the legal construction and application of a statute by the agency charged with enforcement of that statute. We are further guided by the rule of review under which, as to questions of law, we will not reverse a determination made by the enforcing agency where such interpretation is one among several reasonable interpretations that can be made, equally consistent with the purpose of the statute." ¹

Although the circuit court and the appellants in their brief framed the issue in this case as one involving both the element of illegitimacy and the element of posthumous birth, the appellants at oral argument clearly indicated that illegitimacy was not in issue. In so doing, the appellants' view of the critical issue was drawn into accord with that of the respondent.

It is clear under the decisions of this court that an illegitimate child can be a dependent qualifying for death benefits under the workmen's compensation law. Zschock v. Industrial Comm., 11 Wis.2d 231, 105 N.W.2d 374 (1960); Waunakee Canning Corp. v. Industrial Comm., 268 Wis. 518, 68 N.W.2d 25 (1955). Any language to the contrary, drawn from this court's decision in Kuetbach v. Industrial Comm., 166 Wis. 378, 165 N.W. 302 (1917), must be deemed to have been effectively overruled by Zschock, supra, and Waunakee, supra. The circuit court held that both legitimate and illegitimate posthumously born children could qualify as dependents. However, because of the position taken by both parties, the illegitimacy issue need not be addressed on this appeal.

Secs. 102.46 through 102.51, Stats., set forth the requirements for and provide for the payment of death benefits to persons wholly or partially dependent upon a deceased employee otherwise covered by the workmen's compensation law. Two critical features of the above sections are that no payments of death benefits are made except to persons who qualify as either wholly dependent or partially dependent upon the deceased employee for support, and that the status and degree of dependency are determined as of the date of the injury to the deceased employee.

Sec. 102.51(2), Stats., sets forth, in a negative fashion, those classifications of persons, in terms of their relationship to the deceased, who may be considered dependents. Sec. 102.51(2)(a), states:

"(2) Who are not. (a) No person shall be considered a dependent unless a member of the family or a spouse, or a divorced spouse who has not remarried, or lineal descendant or ancestor, or brother or sister of the deceased employe."

This court has consistently held that any person who falls within one of the above classifications may...