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.Summary of this case from International Paper Co. v. Labor & Industry Review Commission
December 11, 1942 —
January 12, 1943.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
L. A. Tarrell of Milwaukee, for the appellant.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondent Kohler Company there was a brief by Lyman C. Conger of Kohler and Stroud, Stebbins Wingert of Madison, and oral argument by E. L. Wingert.
Action begun June 18, 1941, by Emma Weissgerber against the Kohler Company and the Industrial Commission to set aside an order of said commission. From a judgment confirming the order, the plaintiff appeals.
Plaintiff's husband was employed by defendant company from 1919 until June 27, 1934. He died on March 30, 1940, of silico-tuberculosis. At no time did he claim compensation, apparently being unaware of the nature of his illness, but after his death on February 26, 1941, his widow filed a claim for death benefits, alleging that his death was caused by silicosis contracted during his employment by the Kohler Company. The Industrial Commission dismissed the application on the grounds that any claim which might have existed was barred by secs. 102.17(4) and 102.46, Stats. 1933.
This is an application of the widow of an employee for a death benefit under the Workmen's Compensation Act, where death allegedly resulted from disease. The claim is barred by the statute. The last day the employee worked was June 27, 1934, he died on March 30, 1940, and no claim was filed until February 26, 1941. The law applicable to the events here involved is found in secs. 102.46 and 102.17(4), Stats. 1933. Sec. 102.46 was before us in the case of Kohler Co. v. Industrial Comm. 224 Wis. 369, 271 N.W. 383. It was there held that the application for a claim must be filed within the time fixed after the date of injury or death, that the right of a dependent was limited in amount to what the deceased might have recovered had he lived.
Sec. 102.17(4), Stats. 1933, provides:
"The right of an employee, his legal representative or dependent to proceed under this section shall not extend beyond six years from the date of the injury or death or from the date that compensation (other than medical treatment or burial expenses) was last paid, whichever date is latest."
By sec. 102.01(2), Stats. 1933, "`date of injury' is . . . in the case of disease, the last day of work for the last employer whose employment caused disability." If it occurred in this case, it could not be later than June 27, 1934. Here, then, although the six-year period had not expired at the time the employee died, it had expired by the time the widow filed her claim. Under the holding in the Kohler Case, supra, the dependent can get no greater right than the employee would have had, had he survived. Since an application filed by Weissgerber on February 26, 1941, would have been barred, the same is true for the claim of the present plaintiff. The death of the employee does not start a new period of limitations running in favor of his dependent.
By the Court. — Judgment affirmed.
BARLOW, J., took no part.