2006AP2398 Edward Brothers, Inc., v. LIRC

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The dependents of a deceased worker are entitled to death benefits under the worker’s compensation law although the worker’s death occurred before the level of permanent partial disability could be formally established.

“All of this is made quite clear in State v. LIRC. In that case, a dependent of a deceased worker claimed both the disability payments that the worker had failed to claim while alive and the death benefit. Id. at 285. Based partly on Wis. Stat. § 102.51(5), the court refused to allow the disability claim, but the dependent received her separate death benefit; in fact, the death benefit was not an issue in the case, because it had been conceded below after the resolution of a dispute as to who was the proper payor. State v. LIRC, 136 Wis. 2d at 284, 285, 290. The court nevertheless noted, in distinguishing an earlier case, City of Milwaukee v. Industrial Commission, 185 Wis. 307, 201 N.W. 251 (1924): Spouses who are entitled to death benefits when a permanently partially disabled employee dies do not forfeit the benefits granted to them by the death benefits statute (i.e., the balance of permanent partial disability payments) if the deceased employee failed to file a claim for permanent partial disability benefits during his lifetime. State v. LIRC, 136 Wis. 2d at 294.”

“In the face of this clear statement, Edward Brothers simply asserts repeatedly that in a case where the deceased worker dies before the level of permanent partial disability is established, the dependent’s death benefit is, for some reason, wiped out. As we have seen, there is simply no authority for this claim. Wisconsin Stat. § 102.47(2) provides a death benefit to the dependent, and Wis. Stat. § 102.51(5) by its plain language affects only the worker’s disability benefit, not the dependent’s death benefit.”

Reversed.

Recommended for publication in the official reports.

Dist. II, Waukesha County, Hassin, J., Brown, J.

Attorneys: For Appellant: Harlow, R. Duane, Madison; For Respondent: Topczewski, Peter L, Brookfield