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04/26/83 STATE WISCONSIN v. LABOR & INDUSTRY REVIEW

April 26, 1983

STATE OF WISCONSIN, PLAINTIFF-APPELLANT,
v.
LABOR & INDUSTRY REVIEW COMMISSION AND ROBERT L. PATTERSON, DEFENDANTS-RESPONDENTS



Appeal from a judgment of the Circuit Court for Dane County, William D. Byrne, Judge.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Jackman

The state appeals from a judgment which affirmed an award of benefits by the Labor and Industry Review Commission (LIRC) to respondent Patterson. The facts are not in dispute. Patterson has lung disease related to his employment. The last day on which he worked for his employer, the Falk Corporation, was March 8, 1968. He filed a claim for compensation more than six years later. The issues before us are whether the six- or the twelve-year statute of limitations applies, whether applicant should be awarded "work injury supplemental benefits" under sec. 102.66(1), Stats., and whether applicant is also entitled to "supplemental benefits" under sec. 102.44. We affirm the award of benefits under sec. 102.66(1) and reverse the award of benefits under sec. 102.44(1).

The commission's determination of the statutes' applicability is a question of law which is reviewable by this court. State v. ILHR Department, 101 Wis. 2d 396, 401, 304 N.W.2d 758, 761 (1981). We are not bound by the department's determination, but it is entitled to great weight. Kimberly-Clark Corp. v. PSC, 110 Wis. 2d 455, 466, 329 N.W.2d 143, 148 (1983).

Section 102.17(4), Stats. (1965), was in effect when Patterson's employment ended. This statute placed a limitation of six years on the right to proceed with a worker's compensation claim. Chapter 150, Laws of 1973, amended sec. 102.17(4) to extend the period of limitation in cases of lung disease to twelve years. The trial court held that the six-year statute governed the case. The state contends that until twelve years expires, the onus of compensation rests on the employer.

We agree with the trial court. Chapter 150, Laws of 1973, nowhere states that it applies to claims accruing before its effective date. Secs. 990.06 and 991.07, Stats., *fn1 specifically provide that such a statute is prospective only. We conclude that the applicable period of limitation expired on March 8, 1974, six years after the last day of Patterson's employment.

Patterson has an otherwise meritorious claim that has been barred by the statute of limitations in effect at the time his claim arose. In such a case, sec. 102.66(1), Stats., *fn2 authorizes payment of the claim from the "Work Injury Supplemental Benefits Fund" under sec. 102.65(1). *fn3 State v. ILHR Department, 101 Wis. 2d at 407, 304 N.W.2d at 763. We affirm that part of the judgment which awards Patterson benefits from this fund.

We next turn to the question of whether payment from the fund includes "Supplemental Benefits" under sec. 102.44(1), Stats., which provides in relevant part:

Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability . . . shall receive supplemental benefits which shall be payable in the first instance by the employer . . . . [Emphasis supplied.]

Compensation is defined in sec. 102.01(2) as worker's compensation. Section 102.66 says that its benefits are "in lieu of compensation." "In lieu of" means "instead of; in place of; in substitution for." Black's Law Dictionary (5th ed. 1979). The statute thus describes the benefits as something other than compensation, but taking its place. It would appear that the reason the benefits of sec. 102.66 are referred to as "in lieu of worker's compensation benefits" is to distinguish them from worker's compensation benefits which are obligations of the employer.

The supplemental benefits under sec. 102.44, Stats., are provided only for the employe "who is receiving compensation under this chapter for permanent disability . . . ." The right of applicant in this case to recover worker's compensation was barred by sec. 102.17(4), Stats. (1965). The legislature could have defined compensation to include the benefits in sec. 102.66. It could have extended the benefits of sec. 102.44 to increase the benefits of sec. 102.66. It is not for us to do either.

Insofar as the trial court held that applicant was entitled to benefits under sec. 102.66, Stats., we affirm, but as to his right to benefits under sec. 102.44, we reverse and set aside the award of supplemental benefits.

By the Court. -- Judgment affirmed in part and ...


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