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Statutes: Retroactive Application

Rock Tenn Company v. Labor and Industry Review Commission, 2011 WI App 93 (recommended for publication); case activity

A worker’s compensation provision authorizing payment “for any future treatment” enacted after a work-related injury was incurred is remedial in nature and therefore can “be retroactively applied to award prospective treatment expenses.”

¶13      We reject Rock Tenn’s argument and conclude that LIRC reasonably held that Wis. Stat. § 102.18(1)(b) was a remedial or procedural statute.  Generally, statutes are applied prospectively.  Snopek v. Lakeland Med. Ctr., 223 Wis. 2d 288, 293, 588 N.W.2d 19 (1999).

There are, however, exceptions to this general rule.  A statute may be applied retroactively if:  1) by express language or by necessary implication, the statutory language reveals legislative intent that it apply retroactively, or 2) the statute is remedial or procedural rather than substantive.  If a statute falls under the second exception—that is, it is remedial or procedural—it nonetheless cannot be applied retroactively if the legislature clearly expressed its intent that it be applied prospectively only, or retroactive application would impair contracts or vested rights.

Id. at 294 (citations omitted).

¶14      The difference between a substantive statute and a procedural statute is clear.  A statute is substantive if it creates, defines or regulates rights or obligations.  Betthauser v. Medical Protective Co., 172 Wis. 2d 141, 147-48, 493 N.W.2d 40 (1992).  Remedial or procedural statutes are “those which afford a remedy, or improve or facilitate remedies already existing for the enforcement of rights and redress of injuries.”  Chappy v. LIRC, 128 Wis. 2d 318, 324, 381 N.W.2d 552 (Ct. App. 1985).

Not relevant on the facts to SPD practice, of course. The particular holding: the determination that the worker was entitled to compensation established the “substantive right” at issue, and that had already been made when § 102.18(1)(b) was enacted. That section merely prescribes a method for enforcing an already-determined right. “Section 102.18(1)(b) presumes the “right to compensation” and does nothing more than improve or facilitate her right to compensation by moving the time of payment of treatment expense from posttreatment to pretreatment,” ¶15. And generally speaking, the ex post facto or due process clauses will inhibit retroactivity in the SPD arena. Nonetheless, you might find useful in some given circumstance the court’s recitation of the method for analyzing retroactive application of a statute, including instances when you want the statute to apply retroactively.

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