State v. Department of Industry, Labor and Human Relations

Decision Date02 June 1981
Docket NumberNo. 80-917,80-917
Citation101 Wis.2d 396,304 N.W.2d 758
PartiesSTATE of Wisconsin (Work Injury Supplemental Benefit Fund), Plaintiff- Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS and McKinley Cowden, Defendants-Respondents.
CourtWisconsin Supreme Court

Stephen M. Sobota, Asst. Atty. Gen., argued, for appellant; Bronson C. La Follette, Atty. Gen., on the briefs.

Floyd F. Tefft, Madison, for the respondent Department of Industry, Labor and Human Relations.

Philip L. Padden, Milwaukee, argued, for respondent McKinley Cowden; Herbert S. Bratt and Zubrensky, Padden, Graf & Bratt, on the brief.

DAY, Justice.

This case is an appeal on bypass of the Court of Appeals, pursuant to sec. 808.05, Stats. 1973, and Rule 809.60, from a judgment of the circuit court for Dane County, RICHARD W. BARDWELL, circuit judge. The sole question presented on appeal is:

Do secs. 102.66(1) 1 and 102.17(4) 2, Stats. 1975, authorize the Department of Industry, Labor and Human Relations (department) to direct payment of a claim from the Work Injury Supplemental Benefit Fund (supplemental fund) 3 to an employee whose claim for worker's compensation against his employer for occupational disease has been extinguished by the running of the pre-existing statute of limitations contained in sec. 102.17(4), 4 Stats. 1965?

We conclude that the department was so authorized and affirm the judgment of the circuit court.

McKinley Cowden (claimant) worked as a pipefitter for Rexnord, Inc., from 1941 until his retirement in 1966. On October 26, 1978, Mr. Cowden filed an application, which was served on November 3, 1978, to receive benefits pursuant to sec. 102.555, Stats. 1977, the section dealing with occupational deafness. On November 24, 1978, Rexnord and its insurance carrier denied any liability on the ground that Cowden's claim, which accrued in 1966, had run in 1972, by operation of the six-year statute of limitations found within sec. 102.17(4), Stats. 1965.

The claimant and the state, representing the supplemental fund, stipulated that the claim against his former employer, Rexnord, for worker's compensation benefits expired in 1972. He pursued his claim to recover payments from the supplemental fund pursuant to sec. 102.66(1), Stats. 1975 (supra, footnote 1).

The claimant and the state submitted the matter to the department on a written stipulation of facts. 5

On April 26, 1979, the department's hearing examiner issued an order dismissing claimant's application against Rexnord on the basis that his claim against the employer was barred by the statute of limitations and against the state on the ground that the department lacked jurisdiction because:

(1) Sec. 102.66(1), Stats. 1975, was not in effect at the time of the claimant's injury; and

(2) Sec. 102.66(1), Stats. 1975, was not made retroactive in its application.

On May 3, 1979, the claimant petitioned the department for review of the hearing examiner's order pursuant to sec. 102.18(2), Stats. 1977. On August 16, 1979, the commission issued an order setting aside the examiner's order on the ground of probable error. On August 31, 1979, the commission made its findings of fact and ordered payment of the claim in the amount of $2,375.44 from the supplemental fund. In its order, the commission concluded:

"...that it was the intention of the legislature to direct payment of claims, such as that of this applicant by the State of Wisconsin from the Work Injury Supplemental Benefit Fund to all workers within the class described in Section 102.66(1), Stats., (1975) as of December 30, 1975, whose claims for occupational disease would otherwise be uncompensated."

On September 19, 1979, the state of Wisconsin, representing the supplemental fund, commenced this action against the department and the claimant (defendants) to set aside the commission's findings and order.

On March 19, 1980, the circuit court filed a memorandum decision affirming the commission's order, stating in part:

"We conclude that secs. 102.17(4) and 102.66(1), Stats. 1975, enunciated the meritorious policy of this state that workers who have suffered, and can prove, work-inflicted occupational diseases shall be compensated from the state fund, regardless of when that injury was incurred."

Judgment was entered on April 12, 1980, affirming the commission's order directing payment from the supplemental fund to claimant in the amount of $2,375.44.

The state of Wisconsin on behalf of the supplemental fund filed a notice of appeal from the judgment in the circuit court on May 15, 1980. This court granted the state's petition to bypass the court of appeals on October 17, 1980.

As a result of the stipulation of facts, only a question of law remained for commission determination which is not binding on the court and is reviewable by the circuit court and by this court on appeal. Larson v. ILHR Department, 76 Wis.2d 595, 602, 252 N.W.2d 33 (1977).

Although not bound by the department's determination of a question of law, this court has stated that it:

"...does defer to some extent to the legal construction and application of a statute by the agency charged with enforcement of that statute ... (and) 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." Larson, supra, 76 Wis.2d at 603, 252 N.W.2d 33. (Quoting DeLeeuw v. ILHR Dept., 71 Wis.2d 446, 449, 238 N.W.2d 706 (1976)).

The question is whether the commission has the authority to award the payment of $2,375.44 from the state fund pursuant to sec. 102.66(1), Stats. 1975, to claimant whose "otherwise meritorious claim" for worker's compensation became extinguished in 1972 by operation of the then-existing statute of limitations, sec. 102.17(4), Stats. 1965.

The state contends that claimant's claim expired in 1972 under sec. 102.17(4), Stats. 1965, and having been extinguished, he possessed neither a right nor a remedy for his injury, when he filed his application for benefits in 1978. The state further contends that the commission should have dismissed claimant's application for benefits on the ground that sec. 102.66(1), Stats. 1975, may not be applied retroactively.

The claimant contends that sec. 102.66(1), Stats. 1975 created a new right against the state fund for supplemental benefits, not a revival of an extinguished claim against his employer for worker's compensation benefits. The respondents rely on that language of sec. 102.66(1), Stats. 1975, which reads:

"In the event ..., the department may in lieu of worker's compensation benefits direct payment from the work injury supplemental benefit fund under sec. 102.65..." (Emphasis added.)

Under Wisconsin law legislation is presumed to be prospective unless the statutory language clearly reveals by express language or necessary implication an intent that it apply retroactively. Hunter v. School Dist. Gale-Ettrick-Trempealeau, 97 Wis.2d 435, 444-445, 293 N.W.2d 515 (1980).

We conclude that sec. 102.66(1), Stats. 1975, by necessary implication requires a finding that it applies retroactively to claims barred by earlier statutes of limitation, under the Worker's Compensation Act.

Construction here involves two separate but related statutes. Sec. 102.66(1), Stats., provides for the payment of certain claims from the state fund, and sec. 102.17(4) is a statute of limitations. These must be construed in pari materia because sec. 102.66(1), Stats. 1975, makes explicit mention of its direct and immediate relationship to sec. 102.17(4):

"...in the event that there is an otherwise meritorious claim for occupational disease barred solely by the statute of limitations under sec. 102.17(4)...."

Both statutes were created by ch. 147, Laws of 1975, and both were made effective on the same date, December 30, 1975. Where statutes of such direct and immediate linkage are passed under identical circumstances, they must be considered in pari materia and harmonized if possible. State v. Wachsmuth, 73 Wis.2d 318, 325, 243 N.W.2d 410 (1976).

Construed together, the language found within sec. 102.66(1), Stats. 1975, shows an intent on the part of the legislature to apply the section retrospectively to claims otherwise barred by the statute of limitations.

The old version of sec. 102.17(4), Stats. 1965, contained a six-year period of limitation to claims for occupational disease. The 1975 amendment of this section eliminated this six-year period of limitation, providing that no limitation was applicable to claims for occupational disease.

Sec. 102.66(1), Stats., provides:

"In the event that there is an otherwise meritorious claim for occupational disease barred solely by the statute of limitations under s. 102.17(4), the department may in lieu of worker's compensation benefits direct payment ...."

Because amended sec. 102.17(4), Stats. 1975, provides there shall be no statute of limitations for occupational disease, the only barred claim for occupational disease would have to be one controlled by a predecessor statute of limitations, in this case sec. 102.17(4), Stats. 1965.

A prospective application of sec. 102.66(1), Stats., would render its language relating to the barred claims under sec. 102.17(4) meaningless since the event which triggers the department's payment of funds, a barred claim for occupational disease, can not occur under sec. 102.17(4), Stats. 1975. The department, therefore, would be forever precluded from directing payment to any claimant under sec. 102.66(1), Stats. 1975. A construction of a statute rendering a portion of it meaningless must be avoided. State v. Wisconsin Telephone Co., 91 Wis.2d 702, 714, 284 N.W.2d 41 (1979).

In addition, the rule of prospective application ordinarily does not apply to remedial statutes. In Steffen v. Little, 2 Wis.2d...

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