STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


ROBERT WIESELER (DEC'D), Applicant

INTERNATIONAL PAPER COMPANY, Employer

INTERNATIONAL PAPER COMPANY, Insurer

WORK INJURY SUPPLEMENTAL BENEFIT FUND, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996006944


The Work Injury Supplemental Benefit Fund submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on December 22, 1999. Respondent International Paper Company submitted an answer to the petition and briefs were submitted by the parties. A compensable occupational lung disease was conceded with a date of injury on December 16, 1983. Maximum wage was also conceded. At issue is liability for a death benefit claim submitted by the deceased applicant's widow, Lorraine Wieseler. The administrative law judge found the Fund liable for the death benefit, rather than International Paper Company.

The commission has carefully reviewed the entire record in this matter and hereby reverses the Findings and Order of the administrative law judge. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was conceded by all parties to have sustained malignant mesothelioma as a result of occupational exposure in his employment with the self-insured employer, International Paper Company. His date of injury was his last day of work for the employer on December 16, 1983. He died as a result of the mesothelioma on May 17, 1999. In 1998, the Work Injury Supplemental Benefit Fund (hereinafter "Fund") stipulated to liability for permanent total disability benefits payable to the applicant pursuant to the provisions of Wis. Stat. 102.66. This was done because the applicant's claim became time-barred against the employer.

On June 3, 1999, the applicant's widow, Lorraine Wieseler, filed a claim for a death benefit under Wis. Stat. 102.46. The controversy surrounding this claim is whether the Fund or the employer is liable for the death benefit.

The administrative law judge found that the Fund was liable based on Weissgerber v. Industrial Comm., 242 Wis. 181, 7 N.W.2d 415 (1943). Mr. Weissgerber also sustained an occupational lung disease which ultimately was fatal, but he failed to make any claim for compensation prior to his death. Mrs. Weissgerber filed a claim for death benefits after the statutory period set forth in Wis. Stat. 102.17(4) had expired. (1) The court dismissed Mrs. Weissgerber's claim, relying on the reasoning of Kohler Company v. Industrial Comm., 224 Wis. 369, 271 N.W. 383 (1937).

In Kohler, the court also dismissed a widow's claim for death benefits. Both Kohler and Weissgerber were decided based on the wording of statutes which were precursors to the current Wis. Stat. 102.46. The wording of the precursor statutes differed significantly from the current Wis. Stat. 102.46, in that they provided that a survivor's death benefit "shall not exceed the maximum amount which might have accrued to him (the deceased employe) for permanent total disability if death had not ensued." The Kohler court reasoned that since the employe's claim had become time-barred before he died, no amount "might have accrued . . . if death had not ensued." In other words, the applicant had to have had a viable compensation claim at the time of his death in order for any death benefit claim to be possible. The Weissgerber court, working with the same statutory language, adopted this reasoning and took it a step further. In Weissgerber, the applicant died before the statutory claiming period had expired, but the widow's application for death benefits was not filed until after that same statutory claiming period had expired. The court held that since the applicant's compensation claim would have been time-barred as of the date the widow filed her death benefit claim, the death benefit claim was precluded.

Thus, the Weissgerber and Kohler holdings were based on statutes (2) which were interpreted as requiring that a viable compensation claim against the employer still be in existence at the time the widow makes her claim for death benefits.

However, the current Wis. Stat. 102.46 does not contain the "might have accrued . . . if death had not ensued" language, upon which the Weissgerber and Kohler decisions were based. The current Wis. Stat. 102.46 provides in its entirety:

"Where death proximately results from the injury and the deceased leaves a person wholly dependent upon him or her for support, the death benefit shall equal 4 times his or her average annual earnings, but when added to the disability indemnity paid and due at the time of death, shall not exceed two-thirds of weekly wage for the number of weeks set out in s. 102.44(3)."

Thus, the current statute provides a survivor's death benefit which does not depend on whether the injured employe exercised his/her right to claim compensation while he/she lived, nor does it depend on whether the injured employe's right to claim compensation was still viable at the time the survivor claimed the death benefit. Given the straightforward, unambiguous language of the current Wis. Stat. 102.46, the dependent death benefit provided in that statute may be claimed as of the date of death of the deceased employe whose death proximately resulted from the work injury. Pursuant to the current Wis. Stat. 102.17(4), the dependent has a period of 12 years from the date of the fatally- injured employe's death to make his/her death benefit claim. Lorraine Wieseler therefore had 12 years from the date of Robert Wieseler's death to file her claim for a death benefit under Wis. Stat. 102.46. She filed the claim within three weeks of his death, and the claim is valid against International Paper Company.

It appears from the file before the commission that third-party settlements may have been made by the deceased applicant prior to his death, and the provisions of Wis. Stat. 102.29 may therefore be applicable. Due to lack of evidence in this regard, the commission must remand the matter to the department for calculation of the amount of death benefit due Lorraine Wieseler from International Paper Company, including consideration of the distribution provisions of Wis. Stat. 102.29.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. International Paper Company is liable to applicant Lorraine Wieseler for the death benefit payable pursuant to Wis. Stat. 102.46. The matter is remanded to the department for calculation of the amount of death benefit due, after consideration of the distribution provisions of Wis. Stat. 102.29.

Jurisdiction is reserved only with respect to the issue of calculation and distribution pursuant to Wis. Stat. 102.29.

Dated and mailed March 16, 2000
wiesero.wrr : 185 : 1  ND 6.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: LORRAINE WIESELER

ATTORNEY TONY WELHOUSE
WELHOUSE LAW OFFICE

ATTORNEY KEITH W KOSTECKE
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

STEPHEN M SOBOTA
ASST ATTY GENERAL

ABBY BUTLER
W C DIVISION


Appealed to Circuit Court. Affirmed December 1, 2000.  Appealed to the Court of Appeals. Affirmed September 25, 2001. [Court of Appeals decision]

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Footnotes:

(1)( Back ) At the time of the Weissgerber decision, the statutory period for bringing an injury claim was six years from the date of injury or death, but on January 1, 1974, the statutory period for bringing a lung disease claim changed to 12 years from date of injury or death.

(2)( Back ) Section 102.09(3)(a), Stats., 1929; and sec. 102.46, Stats. 1933.