State v. Labor and Industry Review Com'n

• Decision Date: 09 March 1987
• Docket Number: No. 84-1656,84-1656
• Citation: 136 Wis.2d 281,401 N.W.2d 585
• Parties: STATE of Wisconsin, Plaintiff-Respondent and Cross-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Cross-Respondent, Olivia McKenzie, Individually and as Administratrix of the Estate of James McKenzie, Defendant-Cross-Respondent Wehr Corporation, a/k/a Wehr Steel Co. and Employers Insurance of Wausau, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 585

401 N.W.2d 585

136 Wis.2d 281

STATE of Wisconsin, Plaintiff-Respondent and Cross-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Cross-Respondent Olivia McKenzie, Individually and as Administratrix of the Estate of James McKenzie, Defendant-Cross-Respondent Wehr Corporation, a/k/a Wehr Steel Co. and Employers Insurance of Wausau, Defendants-Appellants.

No. 84-1656.

Supreme Court of Wisconsin.

Argued Sept. 30, 1986.

Opinion filed March 9, 1987.

Bruce A. Olsen, Asst. Atty. Gen., argued, for plaintiff-respondent and cross-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Anthony W. Welhouse, Appleton, argued, for defendant and cross-respondent Olivia McKenzie; Gillick, Murphy, Gillick & Wicht, on brief.

Floyd F. Tefft, Madison, argued, for defendant and cross-respondent, Labor and Industry Review Comn.

HEFFERNAN, Chief Justice.

This is a review of an unpublished decision dated September 12, 1985, of the court of appeals which reversed in part and affirmed in part an order of the circuit court for Dane county, P. Charles Jones, Judge, which affirmed in part and reversed in part an order of the Labor and Industry Review Commission. On review, we are concerned with but one of the questions involved in the original proceeding: Whether the surviving spouse of a deceased employee who was entitled to apply for total disability compensation but failed to do so may bring a claim for the deceased employee's permanent total disability benefits.

The commission concluded that a deceased employee's "estate or dependents" may bring such a claim. On review in the circuit court and on appeal to the court of appeals, the order of the commission was affirmed. We reverse the decision of the court of appeals and hold that the surviving spouse or other dependent of a totally and permanently disabled worker whose death occurs other than as the result of the compensable injury may not claim disability compensation payments which the disabled worker failed to claim during his lifetime.

The facts are undisputed. James McKenzie, during the course of his employment as a welder for the Wehr Corporation, developed shortness of breath, asthma, and bronchitis, which was diagnosed as pneumoconiosis. He returned from his work in 1971. He was totally disabled from that time. His total disability was the result of his work and was a compensable injury. Despite that fact, James McKenzie never filed a claim for worker's compensation benefits. At the time of his retirement, the applicable statute of limitations, sec. 102.17(4), Stats. (1971), was six years. His right to claim benefits from his employer and its insurer expired in 1977.

In 1975, however, the Wisconsin legislature enacted sec. 102.66, Stats., Laws of 1975, ch. 147. That statute provides:

"102.66 Payment of certain barred claims. (1) 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 from the work injury supplemental benefit fund under s. 102.65 such compensation and such medical expenses as would otherwise be due...."

Thus, even after the expiration of the limitations period in sec. 102.17(4), Stats., James McKenzie could have filed a claim against the supplemental fund under sec. 102.66. Although he did not do so, it is agreed on this review that his claim would have been "meritorious," for "occupational disease," and "barred solely by the statute of limitations."

Why James McKenzie failed to claim compensation against his employer, or subsequently against the state supplemental fund, is not revealed in these proceedings. He died in 1979 from causes unrelated to his occupational injury.

Shortly after his death, his widow, Olivia McKenzie, filed a claim for worker's compensation benefits against the Wehr Corporation and its insurer and against the state supplemental fund. The circuit court concluded that because a claim for death benefits did not accrue until a worker's death, the claim brought in 1979 was within the then six-year period of limitations and, therefore, the Wehr Corporation and its insurer were required to make payment. The commission had held that the six-year statute of limitations commenced running on the date James McKenzie was last employed and, therefore, the state supplemental fund was responsible for payment of Olivia McKenzie's benefits. After the court of appeals affirmed the circuit court's decision in this respect, the liability of the Wehr Corporation was conceded and is not an issue on this review.

Thus, only the question of Olivia McKenzie's claim to total disability benefits from the date of James McKenzie's retirement to the date of his death is at issue. ^1..

Whether a surviving spouse may file a claim for a deceased employee's unfiled-for total permanent disability benefits under the Wisconsin Workers Compensation Act, ch. 102, Stats., is to be resolved by the process of statutory construction, and is therefore a question of law. Sacotte v. Ideal-Werk Krug & Priester, 121 Wis.2d 401, 405, 359 N.W.2d 393 (1984). We need not defer to the decision of the circuit court, to the decision of the court of appeals, nor to the decision of the commission.

We start with the basic proposition that worker's compensation benefits derive solely from legislative enactments. Those enactments create new rights; only if rights and benefits are specifically conferred by the worker's compensation act can it be said that they exist. See, Mulder v. Acme-Cleveland Corp., 95 Wis.2d 173, 290 N.W.2d 276 (1980). Mulder makes it clear that the quasi-contractual status of the worker in relation to the employer is the result of a legislatively imposed social compact by which an employee acquires rights not recognized by the common law and the employer and its insurer are subject to only limited or scheduled liability. Only rights expressly conferred and liabilities expressly imposed are contemplated by the legislative intent of the compensation act.

The state--in this case, the office of the attorney general, which represents the supplemental fund--following the above interpretation of the compensation act, asserts that, in the absence of a specific provision in the act granting Olivia McKenzie standing to claim her husband's unfiled-for disability benefits, she can claim no right to do so. 2..

No statute specifically confers upon a surviving spouse the right to make claim for total disability benefits not claimed by the deceased worker, nor does any section of the worker's compensation act imply that a spouse can assert such right not asserted by the deceased. That an examination of the compensation act reveals no such statutory implication is hardly surprising, for we have frequently stated that the fundamental purpose of the worker's compensation act is to compensate the injured employee. Duvick v. Industrial Comm., 22 Wis.2d 155, 125 N.W.2d 356 (1963); Independence Indemnity Co. v. Industrial Comm., 209 Wis. 109, 244 N.W. 566 (1932). The act is intended to compensate the injured employee for a loss of wages. It is not a state-managed health and accident scheme, nor is it a life insurance program. Only when the act specifically confers such benefits or singles out favored relatives or dependents as the recipients of benefits can it be said that a purpose beyond compensation of the worker is legislatively intended by the act. Workers compensation acts, while to be liberally construed to effectuate their stated purpose, i.e., to expand within reason what is "covered" service (Green Bay Packaging, Inc., v. IHLR Dept., 72 Wis.2d 26, 37, 240 N.W.2d 422 (1976)), are not to be interpreted in a manner as to transform their intent or to change their meaning. Frisbie v. ILHR Dept., 45 Wis.2d 80, 87, 172 N.W.2d 346 (1969).

The compensation act is devoid of any suggestion that a dependent can, after the death of the worker, claim benefits that the worker chose not to claim. That does not mean that a dependent such as Olivia McKenzie has no post-mortem rights under the act. The compensation act specifically provides death benefits when death results from the injury and the deceased leaves a person dependent upon him for support. The act also provides for a death benefit when the injured employee dies other than as the proximate result of the injury. The exact situation that occurred in this case is contemplated by sec. 102.47(1), Stats. (1979):

"102.47 Death benefit, continued. If death occurs to an injured employe other than as a proximate result of the injury, before disability indemnity ceases, death benefit and burial expense allowance shall be as follows:

"(1) Where the injury proximately causes permanent total disability, they shall be the same as if the injury had caused death, except that the burial expense allowance shall be included in the items subject to the limitation stated in section 102.46. The amount available shall be applied toward burial expense before any is applied toward death benefit."

Accordingly, there is a specific provision of the act that applies in the instant case, where there is an admitted total disability. The amount payable to the surviving spouse is identical to that which would have been payable had the injury caused death. It should be noted that, had any disability been paid or been due at the time of death, such payments would contribute to the statutory limitation on the death benefit. Thus, in the instant case, where no disability payments were claimed or made, the death benefit is undiminished.

While the total disability benefits that might have been claimed under the act during James McKenzie's lifetime plus the diminished death benefits under sec. 102.47 would probably exceed the gross amount of the death benefits alone, it is important, in construing the statute, to recognize that the...