What's New at LIRC and the LIRC website --

May 22, 2008 -- 2007 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2007, are now available at this website.

April 17, 2008 -- In a First Amendment free exercise of religion decision issued today, the Court of Appeals has upheld the authority of the Equal Rights Division to adjudicate a complaint by a Catholic school teacher that her discharge was age discrimination.

Wendy Ostlund taught 1^st grade at a Catholic school owned and operated by the La Crosse Catholic Diocese. After her contract was not renewed for the 2002-03 school year, she filed a complaint with the Equal Rights Division alleging age discrimination. The Coulee Catholic Schools Association (CCS), of which the school was a member, sought dismissal of the complaint on grounds that Ostlund’s position was "ministerial" under Jocz v. LIRC, 196 Wis.2d 273 (Ct.App. 1995) and that adjudication of her complaint would thus infringe CCS' protected First Amendment rights to free exercise of religion. CCS also asserted that Ostlund was let go because of a reduced need for staff and because her degree was in physical education, not elementary education, and she was not certified to teach 1^st grade.  An ALJ denied CCS' motion, and on appeal, LIRC affirmed that ruling. 

LIRC's decision agreed with the ALJ's reasoning that the question of whether adjudication would interfere with free exercise rights came down to the issue of excessive entanglement and that therefore the inquiry ought to involve not only whether the position was "ministerial", but also whether the inquiry required would be limited or ongoing and whether there was any conflict between the law's prohibitions against discrimination and any religious doctrine of the association. 

On judicial review, the circuit court held that under Jocz the only inquiry was whether the position was ministerial and that it was not permissible to inquire into the nature of Ostlund’s claim or CCS’s response, but the court affirmed the outcome based on agreement with the decision that Ostlund's position was not a "ministerial" one. 

On appeal, the Court of Appeals initially certified the case to the Supreme Court, but the certification was refused. After then considering the case on the merits, the Court of Appeals affirmed the decision of the circuit court to sustain LIRC's denial of the motion to dismiss the complaint and to allow its adjudication to go forward.  Coulee Catholic Schools v. LIRC and Ostlund, 2008 WI App 68, __Wis. 2d __, __ N.W.2d __.

Initially, the Court agreed with the circuit court that the applicability of the "ministerial" position exception was the controlling issue, and that LIRC's excessive entanglement analysis based on Sacred Heart Sch. Bd. v. LIRC, 157 Wis. 2d 638 (Ct. App. 1990) was inapposite.  The Court noted that in Sacred Heart there had been no claim that the position was "ministerial".  Turning to the question of whether Ostlund's position was "ministerial", the Court looked to the "primary duties" guide adopted in Jocz, the guidance provided by the 5th Circuit's 1972 McClure decision and the 4th Circuit's1985 Rayburn decision, the 3-part test used in the 5th Circuit's 1999 Starkman decision, and a number of other federal court decisions involving application of the "ministerial" exception in school cases.  Applying the "ministerial" exception in light of that authority, the Court first concluded that the importance of the school to the religious mission of the Church could not be treated as dispositive, noting that "a general exemption for teachers in religious schools would be more expansive than warranted when considered in light of the magnitude of the State’s interest in the enforcement of antidiscrimination laws".  The Court also reasoned that a religious teacher’s duty to model and support particular religious values is not in itself one of the duties included in the "primary duties guide" and does not constitute "teaching or spreading the faith".  It found that this was not a case in which the teaching of secular subjects was so infused with religious doctrine that it would constitute the teaching of the faith.  While Ostlund had religious duties, the Court concluded, they were not her primary duties. Finally, the Court reasoned, not applying the ministerial exception in this case would be consistent with the fundamental purpose of the exception.

NOTE: A petition for Supreme Court review of the COurt of Appeals' decision was filed on June 2, 2008.

April 14, 2008 --  The Wisconsin Supreme Court today granted a petition for review filed from the decision of the Court of Appeals in County of Dane v. LIRC and Gloria N. Graham, 2007 WI App 262, __ Wis.2d__, 744 N.W.2d 613,  which held that an injured worker could receive a “disfigurement” award based on a limp under Wisconsin worker’s compensation law.  [More about the case here].

March 18, 2008 -- In a decision issued today, the Court of Appeals has clarified the extent to which federal court decisions may -- or may not -- have the effect of precluding claims of employment discrimination under Wisconsin's Fair Employment Act.

After being demoted and then resigning from her job at Best Buy, Joyce Aldrich filed an action in federal court, asserting sex and age discrimination under federal law, and alleging constructive discharge. This action was eventually dismissed on summary judgment based on the statute of limitations and on failure to exhaust administrative remedies (Aldrich had not included a claim of constructive discharge in her charge filed with the EEOC).  Aldrich then sought to have the Wisconsin Equal Rights Division hear her complaint of a violation of the Wisconsin Fair Employment Act. The ERD investigated, found probable cause to believe discrimination had occurred, and scheduled the matter for hearing, but then Best Buy moved to dismiss Aldrich’s claims, asserting they were barred by the doctrine of claim preclusion.  An ALJ granted the motion, concluding the elements of claim preclusion were satisfied based on the federal court litigation.  LIRC affirmed the ALJ’s decision.  

The circuit court reversed the Commission decision, concluding the doctrine of claim preclusion did not apply. LIRC appealed. In its decision issued today, Joyce Aldrich v. LIRC, 2008 WI App 63, __Wis. 2d __, __ N.W.2d __, the Court of Appeals affirms the Circuit Court and holds that the doctrine of claim preclusion does not bar a litigant who has had a federal-law-based discrimination claim dismissed in federal court, from having their claim under the WFEA heard by the ERD.  

The court reasoned that claim preclusion is based on the assumption that in the first action, the litigant could have presented her entire claim, including any theories of recovery or demands for relief that might have been available to her under applicable law.   When this is not the case, though, it is unfair to preclude the litigant from a second action in which she can present those the claims she could not present in the first action.  Here, Aldrich could not have litigated her WFEA claims in federal court;  the exclusive means of asserting a WFEA claim is through the ERD, and the federal court would have had no jurisdiction to hear that claim.  Therefore,  the doctrine of claim preclusion does not prevent her from litigating her claim before the ERD.  

The court  rejected the argument that failing to apply the doctrine of claim preclusion will necessarily open the floodgates to re-litigation of identical federal and state employment discrimination claims.  It noted that where appropriate, the narrower doctrine of issue preclusion (which applies only to issues that were actually litigated and decided in a prior action) will prevent re-litigation of identical issues decided in federal court.

March 12, 2008 --  The Court of Appeals today held that  social security offset under Wis. Stat. § 102.44(5) may be used to reduce temporary disability benefits paid pursuant to Wis. Stat. § 102.43(5) during the period that the worker is engaged in a vocational rehabilitation program as described in Wis. Stat. § 102.61.  The court of appeals’ decision, Michels Pipeline Construction and Bituminous Casualty Corporation v. LIRC and David P. Benites, 2008 WI App 55,   ___ Wis.2d___, ___ N.W.2d ___, reversed the commission’s decision.

The case was tried on stipulated facts.  David Benites was injured laying pipeline for the employer (Michels Pipeline).  Applying  applied the social security offset to the temporary disability payments made under Wis. Stat. § 102.43(5) while the Benites was enrolled in a vocational rehabilitation program,  Michels Pipeline paid Benites approximately $13,000 less in disability compensation than the amount calculated by the department.  A WC Division ALJ held that Michels Pipeline could not apply the offset to payments made under Wis. Stat. 102.43(5) while Benites was receiving instruction under Wis. Stat. § 102.61, and ordered it to pay Benites the $13,000.  The commission affirmed the ALJ’s decision as consistent with past commission and department practice, citing two prior cases that had been affirmed on judicial review (though not in a published appellate decision).

The court of appeals accorded the commission’s decision due weight deference, but nonetheless reversed.  In so doing, the court noted that nothing in the statutes permitted the commission to recast “temporary disability benefits” as “vocational rehabilitation benefits” to which the social security offset did not apply, and that doing so was inconsistent with the commission’s interpretation of the term “temporary disability benefits” elsewhere in the statutes.

November 26, 2007 --   The court of appeals today affirmed a LIRC decision holding that an injured worker may receive a “disfigurement” award based on a limp under Wisconsin worker’s compensation law.  County of Dane v. LIRC and Gloria N. Graham, 2007 WI App 262, __ Wis.2d__, 744 N.W.2d 613.

Gloria Graham fell at work, twisting one of her legs behind her back and leaving  her with  “a mixture of a limp and a foot drag.”  The presiding ALJ stated that “watching her walking with such difficulty was painful” and he awarded compensation for disfigurement, concluding that the look of her legs and altered gait would negatively effect her potential employability and wages.  LIRC affirmed the ALJ’s disfiguremnt award, but noted its 1994 decision (Spence) in which it had disallowed a disfigurement award for a limp because disfigurement “historically” meant injuries resulting in amputation, scars, or burns.  In its current decision in Graham, LIRC concluded the 1994 Spence decision had been in error as nothing in Wis. Stat. § 102.56(1) limits disfigurement to amputations, scars, and burns, but rather states that “consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment.”  LIRC  noted, too, that allowing a disfigurement award was consistent with an even earlier 1986 decision (Jorgenson) in which LIRC awarded disfigurement based in part on a limp.

Examining the deference standards that apply on judicial review of LIRC decisions, the court concluded that even though LIRC’s decision in Graham is inconsistent with Spence, LIRC had not frequently changed position, had acknowledged the Spence decision, and had provided an explanation for departing from Spence.  It therefore applied the “due weight” deference standard to LIRC’s interpretation of Wis. Stat. § 102.56(1) in Graham. 

The court then concluded the commission’s interpretation of the disfigurement statute was reasonable, noting that the dictionary definition of “disfigure” is not limited to amputations, scars, and burns; that the statute instead referred to areas of the body that are exposed during employment, and that LIRC’s interpretation comported with the manifest purpose of the disfigurement statute specifically (compensating potential wage loss from negative perceptions about a physical abnormality) and the primary purpose of the WC Act generally (compensating injured workers for loss of wage-earning power.)  Concluding that the County’s proffered interpretation of the statute as limited to burns, scars and amputations was not more reasonable than LIRC’s, the court affirmed LIRC’s decision.

October 30, 2007 --   The court of appeals today affirmed a commission decision holding that an injured worker was an employee of a company for whom he provided services was because he did not fulfill the statutory definition of an employer.  The court’s decision, Lloyd Frank Logging et al., v. Charles D. Healy and LIRC, appeal no. 2007AP692 (Wis. Ct. App., October 20, 2007) has been recommended for publication.  

In December 2000, Charles Healy entered an agreement with Lloyd Frank to cut trees.  Healy was injured on March 9, 2001, while cutting trees for Lloyd Frank.  Discussing mainly issues raised under Wis. Stat. § 102.07(8), the administrative law judge determined that although Healy was an independent contractor, he was still an employee of Lloyd Frank, subject to the Worker’s Compensation Act.  Lloyd Frank petitioned the Commission for review, arguing that because Healy had purchased a worker’s compensation policy for his own sole proprietorship, he was an employer under Wis. Stat. § 102.05(2) and, as an employer, could not also be an employee of Lloyd Frank under Wis. Stat. § 102.07(8m).  The Commission, in affirming ALJ’s decision, determined that because Healy never had any employees, he was not an employer under under Wis. Stat. § 102.05(2) despite procuring a worker’s compensation policy for his sole proprietorship. 

October 18, 2007 -- The District IV Court of Appeals has certified to the Supreme Court a case presenting the question of whether the First Amendment precludes application of the Wisconsin Fair Employment Act to a Roman Catholic Diocese in regard to its operation of its schools.

August 29, 2007 -- The District II Court of Appeals has affirmed LIRC's decision that an individual hired to perform carpentry services for a construction contractor was the contractor's employee for worker's compensation purposes, even though the individual operated his own carpentry business as a sole proprietor. The determinative fact was that the contractor hired the individual as a carpenter, and did not contract with him as the sole proprietor of his business.  Acuity Ins. v. Carr Builders, David Whittingham & LIRC  2007 WI App 210, 305 Wis.2d 613, 740 N.W.2d 154.

Whittingham intermittently performed carpentry work for Carr Builders, a home builder. Whittingham performed carpentry work for others in his capacity as the sole proprietor of a business named Woodland Builders. While working for Carr, Whittingham was injured and claimed compensation. Carr and its insurer noted the conceded fact that Woodland qualified as a statutory employer under Wis. Stat. 102.04(1)(b)2. They alleged that there could be no separate legal identity between Woodland (the sole proprietorship) and Whittingham (the sole proprietor), and that he therefore could not be an employee under the Act, because Wis. Stat. 102.07(8)(m) precludes statutory employers from being covered employees. The commission dismissed this argument and found that Wis. Stat. 102.07(8)(m) precludes individuals or entities acting as employers from being considered covered employees, but does not preclude coverage for individuals when they are acting as employees.

The court affirmed the commission, noting that to accept Carr's interpretation of the statute would lead to absurd results and defeat the primary purpose of the Act, which is to compensate injured workers. Sole proprietorship owners such as Whittingham, who work second jobs as employees, could find themselves in a circumstance in which their sole proprietorship business failed. Pursuant to Wis. Stat. 102.05(1), the erstwhile sole proprietor might continue to hold the legal status as of an employer under the Act for a substantial period of time. If during this time the individual went to work for another employer in order to earn a living, and was injured on the job, Carr's interpretation of the statute would leave that individual without worker's compensation coverage. While Carr attempted to distinguish Whittingham's case on the basis that it sometimes made out his paychecks to Woodland Builders instead of to Whittingham, the court deferred to the commission's reliance on other facts to determine that Whittingham was acting as an employe.

July 18, 2007 -- In its second decision in as many days involving disability discrimination under the WFEA, the Wisconsin Supreme Court has addressed an issue arising from the interplay of state discrimination law and federal transportation safety regulation of truck drivers.

Leon Szleszinski was a truck driver for Transhield,  which leased its trucks and drivers to Midwest Coast Transport.  Midwest terminated Szleszinski because he had Wilson’s disease, a disorder involving copper retention which can manifest as neurological problems, liver disease, or other symptoms.  The decision resulted after a physician rendered an opinion that he should not drive;  that opinion had been based primarily on a US Department of Transportation medical conference report which had recommended that all individuals diagnosed with Wilson's be disqualified from driving, without exception. Reversing an ALJ who had found discrimination,  LIRC's decision held that the process employed to deny Szleszinki’s medical certification satisfied the “individual case-by-case” requirement because it relied in part on a physical examination by the neurologist as well as on "a narrowly tailored" report by experts in the field of neurological disorders;  it also held that, consistent with Hermann v. ORT Trucking Co., (LIRC Dec. 13, 1994), a violation of the WFEA should not be found until there has been a determination under the federal safety regulations that an individual is qualified to drive. 

A circuit court affirmed LIRC, but on appeal, the Court of Appeals reversed.  Szleszinski v. LIRC, Midwest Coast Transport and Transhield Trucking and Leasing, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345.  The Court of Appeals held that Szleszinski was not required to use the federal dispute resolution procedure available to contest medical certification decisions, before commencing a disability discrimination claim under the WFEA.   The Court of Appeals also concluded that the medical evaluation Midwest relied on was inadequate because applicable federal regulations contemplate that an actual examination will be held, and also because it did not meet the “individual case-by-case” requirement of § 111.34(2). 

Midwest's petition for Supreme Court review raised only the issue of whether the Court of Appeals erred in concluding that Szleszinski was not required to seek a determination regarding medical qualification from the DOT under the dispute resolution procedure before filing his claim. In today's decision, Szleszinski v. LIRC, Midwest Coast Transport & Transhield Trucking, 2007 WI 106, 304 Wis. 2d 258, __ N.W. 2d __, the Supreme Court noted that limited scope of the review petition, and it addressed only that issue, holding that

...a driver need not seek a determination of medical qualification from the DOT prior to filing a disability discrimination claim under the WFEA [and] when a person's medical and physical qualifications to be an interstate commercial driver are material to a WFEA claim, and a dispute arises concerning those qualifications that cannot be resolved by facial application of the DOT regulations, such a dispute should be resolved by the DOT under its dispute resolution procedure.  We further conclude that, under the WFEA's burden-shifting scheme, the carrier, not the driver, is the party that must seek a determination of medical and physical qualification from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons.

Justice Prosser, in a dissent joined by Justices Wilcox and Roggensack, argued that the Court should have reached the other issues presented by the case, under the established principles that the court reviews the agency's decision and not the decision of the court of appeals. The dissent argued that if the Court applied the familiar standards of review, it would affirm the decision of the commission.

July 17, 2007 -- In a decision issued today involving the Wisconsin Fair Employment Act,  the Wisconsin Supreme Court has upheld a LIRC determination that there was unlawful discrimination when an employer discharged one of its employees for excessive absences under its "no fault" attendance policy.  While the decision resolves a significant issue regarding the WFEA's reasonable accommodation requirement, it leaves unresolved another significant issue (which had been reached by the Court of Appeals) concerning "no fault" attendance policies.

The LIRC decision being reviewed held that Stoughton Trailers discriminated against Geen "because of" disability when it discharged him for accruing 6 occurrences of absence under its policy where the last 2 were periods of absence caused by Geen's disability;  it also held that Stoughton Trailers did not fully comply with the FMLA in its dealings with Geen, and that in any event even compliance with the FMLA would not necessarily be sufficient to satisfy the employer's independent obligation under the WFEA to provide "reasonable accommodation."  LIRC's decision was affirmed by the circuit court, and on appeal the Court of Appeals also affirmed, in a published decision, Stoughton Trailers, Inc. v. LIRC and Douglas Scott Geen, 2006 WI App 157, 721 N.W.2d 102. 

In its decision, the Court of Appeals had upheld LIRC's interpretation of the WFEA under which a discharge for accumulating too many  absences under a "no-fault" attendance policy, where some of the accumulated absences were caused by the disability and some were not, would be considered to be a discharge "because of" disability . However, in its decision issued today, Stoughton Trailers, Inc. v. LIRC & Douglas Scott Geen, 2007 WI 105, __ Wis. 2d __, __ N.W. 2d __, the Supreme Court expressly stated that it did not address that issue.  Rather, the Court took this approach:

We conclude a more reasonable basis for LIRC's decision exists than the one adopted by LIRC.  To wit, we note that Stoughton did not follow its own no-fault attendance policy in terminating Geen when it failed to provide him with 15 days as allowed under the policy to submit documentation to avoid being assessed an "occurrence."  Because Stoughton did not follow its own no-fault attendance policy, it may not claim whatever protection that policy may provide in its termination of Geen.  Thus, LIRC's conclusion that Geen was terminated because of his disability is more reasonably based on the unique circumstances surrounding that termination.  Based on these circumstances, we conclude that LIRC's determination that Stoughton terminated Geen because of his disability was reasonable.  We therefore do not address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the WFEA when some of the absences were caused by disability and others were not.

On the question of whether Stoughton Trailer satisfied its obligation to "reasonably accommodate" Geen's disability, the Supreme Court concluded that LIRC reasonably concluded that there was a failure to accommodate both in Stoughton's failing to provide Geen the 15 days required under its attendance policy to submit a completed FMLA form, and it Stoughton's failure to extend "clemency and forbearance" by temporarily tolerating Geen's disability-related absences while efforts were underway to find a medical solution.

In a dissent joined by Justice Wilcox, Justice Prosser argued that because the majority purported to decide the case on a different and narrower basis than that relied on by LIRC and the Court of Appeals and to leave for another day the question of whether the basis relied on by LIRC and the Court of Appeals was correct, the Court in effect "has insidiously retained LIRC's decision and the court of appeals' decision as precedent" for future cases that must be decided on broader grounds. 

Justice Roggensack did not participate.

June 18, 2007 -- The 2007 Edition of the Equal Rights Decision Digest is now available on-line. This edition is updated with summaries of relevant LIRC and court decisions through calendar year 2006.

June 7, 2007 -- Governor Jim Doyle has appointed Ann Crump to be a member of the Wisconsin Labor and Industry Review Commission, effective June 4, 2007. Ann replaces David Falstad, whose term expired on March 1st.

Crump is a seasoned labor leader who comes to the Commission from her position as international staff representative for the Communication Workers of America (CWA), AFL-CIO. In that position, she negotiated labor agreements and consulted on day-to-day contract issues, conducted member training, and developed and implemented legislative and community policies and strategies. She also ruled on arbitration requests from local unions, and prepared and presented arbitrations and post-hearing briefs.

Ms. Crump obtained her Bachelor of Arts degree in business and communications from Alverno College, and earned numerous subsequent educational certificates and accreditations covering areas of labor law, advocacy and leadership. She has served as an Executive Board member of the Wisconsin State AFL-CIO, Vice President of the Milwaukee County Labor Council, Co-Chair of the Wisconsin Women’s Network, and as a member of Governor’s Task Forces on Telecommunications and Economic Development. She was the recipient of The Milwaukee Journal’s “80 for the 80’s” Award, the AT&T “Spirit of Communications” Award, and the State AFL-CIO’s “Catherine Conroy Award.”

The appointment is subject to confirmation by the State Senate.

April 30, 2007 -- 2006 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2006, are now available at this website.

March 7, 2007 -- The Court of Appeals today affirmed the commission's decision that the survivors of a deceased worker who had filed a worker's compensation claim prior to his death but died of causes unrelated to the work injury prior to reaching his healing plateau,  may nevertheless claim death benefits that are calculated on the basis of the amount of permanent partial disability the deceased worker would have received had he survived.

David Vanderzee hurt his back at work in 2001 and was receiving temporary disability up until the date he was shot to death in 2003. The commission's decision awarded death benefits to Vanderzee's survivors, calculated in the amount of the permanent partial disability the commission determined Vanderzee would have received had he lived. Wis. Stat. 102.47(2) provides that where the work injury "proximately causes permanent partial disability, the unaccrued compensation" shall be paid to the dependents as a death benefit.

On appeal, Plaintiffs (employer and insurer) argued that the word "unaccrued" means legally determined but not yet paid.  The Court of Appeals rejected this argument as contrary to the plain meaning of "unaccrued," as something that has not yet become due or enforceable as a claim.

Plaintiffs also argued that the commission's award of death benefits constituted the survivors' claim for enforcement of  "the employee's claim for compensation," contrary to Wis. Stat. 102.51(5).  The court explained that a survivor's claim for death benefits is not a claim for the deceased employee's compensation. Rather, a death benefit is a separate statutory right that belongs to the survivors and can only be claimed by them after the worker's death. All of this is evident from reference to State v. LIRC, 136 Wis. 2d, 401 N.W.2d 585 (1987). 

There is no authority or logic, the court concluded, to support plaintiffs' assertion that the death of the worker prior to conclusive establishment of his/her permanent partial disability, acts to extinguish the right to a statutory death benefit that the commission calculates based on the facts of the case.

The Court of Appeals' decision, Edward Bros. and Liberty Mutual v. LIRC and Vanderzee,  2007 WI App __, __ N.W.2d _  (No. 2006AP2398, filed March 7, 2007) has been recommended for publication.

February 16, 2007 -- Commissioner David B. Falstad will be ending his tenure with the Labor and Industry Review Commission after twelve years, with the end of his term as of March 1, 2007. Mr. Falstad was appointed to the Commission by Governor Tommy G. Thompson in 1995 and served as its Chairman from 1998 until 2004. Falstad, a lawyer, was an executive in the private sector, including a career with a large manufacturer, before being named to the Commission.

The current head of LIRC, James Flynn, described Falstad as “…a caring person with great integrity and respect for the law as well as for the opinions of others.”

Mr. Falstad is looking forward to having more time to devote to other pursuits. He stated that he has enjoyed being part of resolving many important issues that have come before the Commission while he was a member.

February 2, 2007 -- The commission reasonably interprets Wis. Admin. Code § DWD 80.32(4) to award a cumulative minimum PPD for multiple ACL repair procedures following a single injury, even though the commission’s award is higher than the highest medical estimate in the record, the Supreme Court held today in DaimlerChrysler c/o ESIS v. LIRC and Glenn May, 2007 WI 15, __ Wis.2d__, __ N.W.2d __  (2005AP544, Filed February 2, 2007).  The court went on to hold that Wis. Stat. § 102.18(1)(d) does not prohibit determinations in excess of the highest medical estimate in record, but rather creates a presumption of reasonableness for PPD awards that fall within the range set out in the statute.

Glenn May injured his left knee at work and underwent an ACL repair surgery shortly thereafter, but was left with continuing symptoms, and his surgeon rated PPD at 15 percent.  His surgeon performed a second ACL surgery thereafter, improving Mr. May’s knee substantially.  After Mr. May reached a healing plateau,  his surgeon indicated his PPD had not changed due to the second surgery, and assessed PPD at 10 percent.  The presiding ALJ awarded PPD at 25 percent, which the commission reduced to 20 percent, or the code minimum of 10 percent for each of the two ACL repair surgeries performed.  In affirming the commission’s decision, the Supreme Court noted that while the application of an administrative rule and a statute to undisputed facts poses questions of law that are reviewed de novo, the commission’s interpretation of § DWD 80.32(4) was entitled to controlling weight deference and its interpretation of Wis. Stat. § 102.18(1)(d) was entitled to great weight deference.

Justice Roggensack, joined by Justices Wilcox and Prosser, dissented, taking the position that the physician’s opinion about the condition of the knee drives the extent of PPD rating that is assigned, unless the employer simply concedes to accept the minimum set in § DWD 80.32(4).

January 23, 2007 -- Following closely on the heels of its November decision to grant a petition for review in a disability discrimination case involving a "no-fault" attendance policy and accommodation issues related to it (see below), the Wisconsin Supreme Court has now granted a petition for review in another disability discrimination case.

Leon Szleszinski was a truck driver for Transfield, a company which leased its trucks and drivers exclusively to Midwest Coast Transport, a common carrier. The case involved  the decision Midwest to terminate Szleszinski because he had Wilson’s disease, a disorder involving copper retention which can manifest as neurological problems, liver disease, or other symptoms.  The decision resulted after a physician rendered an opinion that he should not drive.  That opinion had been based primarily on a US Department of Transportation medical conference report which had recommended that all individuals diagnosed with Wilson's be disqualified from driving, without exception. Reversing an ALJ who found discrimination,  LIRC's decision held that the process employed to deny Szleszinki’s medical certification satisfied the “individual case-by-case” requirement because it relied in part on a physical examination by the neurologist as well as on "a narrowly tailored" report by experts in the field of neurological disorders;  it also held that, consistent with Hermann v. ORT Trucking Co.,(LIRC Dec. 13, 1994), a violation of the WFEA should not be found until there has been a determination under the federal safety regulations that an individual is qualified to drive.  A circuit court affirmed LIRC, but on appeal, the Court of Appeals reversed.  Szleszinski v. LIRC, Midwest Coast Transport and Transhield Trucking and Leasing, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345.  Preliminarily, the Court held that Szleszinski was not required to use the federal dispute resolution procedure available to contest medical certification decisions, before commencing a disability discrimination claim under the WFEA.  The Court also rejected Midwest's argument that it was not an "employer" of Szleszinski, concluding that Midwest's actions had “a sufficient nexus with the denial or restriction of” Szleszinski’s employment opportunities to make it an employer, and that in any event it was at very least an “other person” within the meaning of § 111.321.  Turning to the merits, the Court concluded that Midwest did not establish a "safety defense".  The Court held that the medical evaluation Midwest relied on was inadequate because applicable federal regulations contemplate that an actual examination will be held, and also because its primary reliance on the medical conference report did not meet the “individual case-by-case” requirement of § 111.34(2), since it relied on general conclusions about a class of individuals. 

Midwest filed a petition for review, which focused on the issue involving the federal dispute resolution procedure. The Supreme Court has now granted the petition, indicating that its review will be limited to the issue raised in the petition.

November 6, 2006 -- The Wisconsin Supreme Court has granted a petition for review in a disability discrimination case arising from application of a "no fault" attendance policy, presenting issues involving the applicability of disability discrimination law to the operation of such policies, the scope and meaning of the requirement for "reasonable accommodation" of disabilities in that context, and the role (if any) played by the Family and Medical Leave Act in determining whether the "reasonable accommodation" requirement has been met.

The case has a lengthy history, dating back to an August, 2000 LIRC decision holding that Stoughton Trailers did not discriminate against its employee Douglas Geen when it discharged him for accumulated absences under its "no fault" attendance policy since it provided him a reasonable accommodation by giving him the opportunity to try to insulate some of his absences from the policy's application by having them covered under the FMLA.   On Geen's appeal, the circuit court reversed, concluding that Stoughton Trailers failed to accommodate Geen because it had not fully complied with requirements of the FMLA.  Stoughton Trailers appealed, and in a published decision, Geen v. LIRC and Stoughton Trailers, 2002 WI App 269 , 654 N.W.2d 1, the Court of Appeals agreed that LIRC's decision should be set aside, but modified the circuit court's disposition by ordering a remand for LIRC for it to decide (1) whether Geen was terminated "because of" his disability where some but not all of the accumulated absences leading to it were caused by his disability, and (2) whether or how the FMLA affected Stoughton Trailers’ claim that it reasonably accommodated Geen’s disability. The Supreme Court denied Stoughton Trailers' petition for review of this decision.  LIRC's September, 2003 decision on remand held that Stoughton Trailers did discriminate against Geen "because of" disability when it discharged him for accruing 6 occurrences of absence under its policy where the last 2 were periods of absence caused by Geen's disability;  it also held that Stoughton Trailers did not fully comply with the FMLA in its dealings with Geen, and that in any event even compliance with the FMLA would not necessarily be sufficient to satisfy the employer's independent obligation under the WFEA to provide "reasonable accommodation."  LIRC's decision was then affirmed by the circuit court, and on appeal the Court of Appeals also affirmed, in another published decision, Stoughton Trailers, Inc. v. LIRC and Douglas Scott Geen, 2006 WI App 157, 721 N.W.2d 102.  It is this decision which the Supreme Court has now agreed to review.

August 1, 2006 --  As of August 1, 2006, a number of amendments to LIRC's administrative rules have become effective.  The rule changes update and reorganize ch. LIRC 1 to 4 to clarify provisions relating to when, where and how petitions for commission review may be filed, authorize on-line filing of petitions for review in certain cases, clarify provisions relating to use of hearing transcripts, synopses and summaries of evidence, and make other minor corrective changes in LIRC's rules of procedure.  A complete reproduction of LIRC's rules as affected by the amendments, is available here: LIRC's Administrative Rules.  A copy of the Rule-Making Order, including the complete text of LIRC's rules with the changes shown made with strike-through and underlining, is available here: LIRC Rule-Making Order - (.pdf).

One of the significant changes made by the amendments is the introduction of on-line filing of petitions for review for certain kinds of cases.    Effective August 1, 2006, petitions for LIRC review in Unemployment Insurance (UI) and Workers Compensation (WC) cases may be filed on-line by using forms available at this page at the LIRC website: "File a Petition for Review (appeal) of an ALJ's decision on-line". (On-line filing of petitions through the LIRC website is not available in ER cases, because by statute such petitions may only be filed with the Equal Rights Division). Wis. Admin. Code § 1.025 (4).

Another significant change made by the amendments is the creation of procedures governing requests for the commission to conduct its review based on a transcript rather than a synopsis.   This provision, applicable to WC and ER cases (but not to UI cases), states that the commission will base its review on a transcript rather than a synopsis if a party timely requests use of such a transcript, certifies in their request that it has ordered preparation of such a transcript at its own expense, and thereafter files a copy of the transcript with the commission and serves a copy of the transcript on all other parties.  To be timely under this provision, the request must be filed within 14 days of the requesting party's receipt of confirmation of the filing of a petition for review. Wis. Admin. Code § 1.04 (3).

July 27, 2006 -- Discharge of an employee for accumulated absences under a "no fault" attendance policy may be disability discrimination where some of the absences arise from a disability, the Court of Appeals has held.  The Court also held that "clemency and forbearance," in the form of waiting to see if medical treatment may alleviate a condition, may be a required reasonable accommodation in the case of an employee accumulating absences under such an attendance policy.

Douglas Geen was discharged by Stoughton Trailers for exceeding the allowed number of absences under Stoughton's "no fault" attendance policy. Some of the absences, including the final ones, were caused by Geen's migraine headache condition (conceded by the parties to have been a covered disability).  Following the "in part" analysis of Hoell v. LIRC, 186 Wis. 2d 603 (Ct. App. 1994),  LIRC's decision held that Stoughton had discriminated against Geen because of disability when it discharged him "in part" because of his disability.  LIRC also held that Stoughton had failed to reasonably accommodate Geen's disability, rejecting Stoughton's  argument that allowing Geen to seek FMLA leave to cover his absences was an adequate accommodation, and also concluding that in any event Stoughton failed to reasonably accommodate Geen's disability by not extending him time for treatment being pursued by his physician.  In its decision issued on July 27, the Court of Appeals upheld LIRC's decision. 

The Court of Appeals rejected Stoughton's argument that LIRC's decision was inconsistent with its prior decisions in Gordon v. Good Samaritan Medical Center (LIRC, 4/26/1988) and Gee v. ASAA Technology Inc. (LIRC, 1/15/92), finding that to the extent there was a divergence from these earlier decisions, LIRC adequately explained this by noting that the holdings of the earlier decisions were in the nature of dicta and that they were in any event superseded by the subsequent Court of Appeals decision in Hoell.  The Court of Appeals also rejected Stoughton's argument that the "in part" analysis of Hoell applied only to situations where discriminatory intent was a factor in a decision;  the Court concluded that Hoell applied where prohibited factors (such as pregnancy, as was the case in Hoell, or disability) were involved in a decision.  Finding it consistent with the purpose of the statute, the Court upheld LIRC's application of the Hoell mixed motive analysis to situations where an employment action was taken in part because of absences caused by a disability.  The Court rejected Stoughton's argument that this would effectively prevent employers from applying "no fault" attendance policies, stating that "an employer may continue to apply its 'no fault' attendance policy as long as the policy does not result in an adverse employment action taken because of an employee's disability and as long as the policy is otherwise compliant with law.  The Court also upheld LIRC's conclusion that since Geen was found to have been discharged "in part" because of his disability, and since (as LIRC concluded) he would not have been discharged if it had not been for the last two absences which had been caused by his disability, under Hoell the appropriate remedy included reinstatement, back pay and attorneys fees.

The Court also addressed an issue of reasonable accommodation, upholding LIRC's conclusion that Stoughton did not reasonably accommodate Geen's disability by extending him the opportunity to seek FMLA leave status for his absences where Stoughton did not fully comply with the provisions of the FMLA in its dealings with Geen.  In addition, the Court agreed with LIRC that in any event, Stoughton failed to reasonably accommodate Geen's disability by not extending "clemency and forbearance" in the form of waiting to see if treatment being pursued by Geen's physician might resolve the problem absences.  The situation, the Court found, "mirrored" that in Target Stores v. LIRC, 217 Wis. 2d 1 (Ct. App. 1998).

The Court's decision, Stoughton Trailers, Inc. v. LIRC and Douglas Scott Geen, 2006 WI App __, __ N.W.2d __ (2004AP1550, Filed July 27, 2006), has been recommended for publication.

June 19, 2006 -- The 2006 Edition of the Equal Rights Decision Digest is now available on-line. This edition is updated with summaries of relevant LIRC and court decisions through 2005.  In addition, several areas of the Digest have been reorganized or expanded. 

April 12, 2006 -- 2005 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2005, are now available at this website.

March, 2006 - The Labor and Industry Review Commission is currently considering proposed changes to its administrative rules, which govern practice and procedure before the commission.

A copy of the proposed rule-making order, including a plain language analysis and a complete reproduction of the rules showing the proposed changes, is available here: proposed LIRC Rule-Making Order - (.pdf format) .   

A hearing on the proposed rule changes was held on March 8, 2006.

February 2, 2006 - A Court of Appeals decision issued this date has resolved an issue arising out of a claim that the Wisconsin Workers Compensation Uninsured Employers Fund engaged in bad faith in the handling of an injured employee's case. 

After he was injured while working for an uninsured employer, Christopher Aslakson filed a claim with the Uninsured Employers Fund.  The Fund denied his claim, but an ALJ of the WC Division ruled in Aslakson’s favor and ordered the Fund to pay, and this order was affirmed on appeal by LIRC, the circuit court, and the court of appeals.  At that point, the Fund paid Aslakson’s claim.

Subsequently, Aslakson brought an action in circuit court against both the Fund and its third-party administrator, Gallagher Bassett, making common law claims for bad faith. The circuit court dismissed the action against the Fund on sovereign immunity grounds, but it allowed the action to proceed against the Fund administrator, concluding that the exclusive remedy provision of the Workers Compensation Act did not apply.

On appeal, the Court of Appeals (District IV) reversed. The court noted that while Coleman v. American Universal Ins. Co., 86 Wis. 2d 615 (1979) held that the WC Act did not cover bad faith claims against insurers and that the exclusive remedy provision thus did not apply to such claims, the legislature had responded to Coleman by adopting § 102.18(1)(bp), which allows a penalty for bad faith in handling a WC claim and states that it is the exclusive remedy against an employer or insurance carrier for bad faith.  Looking to § 102.81(1)(a), which provides that the Uninsured Employers Fund shall pay all compensation to an injured employee “except penalties and interest due under…§ 102.18(1)(bp)”, the court concluded that this “plainly excuses the Fund and its agent from liability”. Thus, the injured employee may not maintain an action against the Fund’s administrator for bad faith in the handling of his claim.

The court’s decision, Aslakson v. Gallagher Bassett Services and Wis. WC Uninsured Employers Fund  (No. 2004AP2588), has been recommended for publication.

 November 15, 2005 - The Court of Appeals has held that a LIRC decision refusing to dismiss a complaint under the Wisconsin Fair Employment Act is not subject to judicial review under Ch. 227 because it is not final.

The case arose with a complaint filed by Anthony Betters with the Equal Rights Division alleging that Kimberly Area School District discharged him because of arrest record, in violation of the WFEA.  Betters had also filed a grievance challenging his discharge, and shortly after he filed his WFEA complaint, an arbitrator ruled that Kimberly had just cause for the discharge. Kimberly moved to dismiss the WFEA complaint on grounds of issue and claim preclusion. An ALJ granted the motion, but Betters appealed, and LIRC's decision set aside the ALJ's order and remanded the matter for hearing on the merits, based on a conclusion that the arbitration award did not necessarily require dismissal of the complaint.

Kimberly commenced a proceeding for judicial review of LIRC's decision under Ch. 227. The circuit court dismissed Kimberly's appeal on the grounds that LIRC's decision was not subject to judicial review because it was not final.  Kimberly appealed. 

The court's decision, Kimberly Area SD v. LIRC & Betters,  2005 WI App __, __ N.W.2d __ (2005AP0666, filed Nov. 15, 2005), has been recommended for publication.

October 20, 2005 - The Court of Appeals (Dist. III) today affirmed that part of a commission decision that found an occupational back injury caused by work exposure without any past or present traumatic event.  However, the court rejected the commission's argument that pursuant to the employer's joint and several liability with its liquidated WC insurer, the employer was liable to reimburse the applicant's nonindustrial group health insurer for medical expense it had paid.

Occupational back issue -- Applicant David Kallstrom worked for 15 years as a cheese maker for the employer. His daily work duties involved strenuous lifting and reaching, but he had never sustained a traumatic back injury and never missed work due to his back until April 12, 2000. On that date, he left work to seek medical attention for severe back pain that had come on gradually. He was ultimately diagnosed with a disc herniation that required lumbar surgery. The Wisconsin Insurance Security Fund (involved in the case because the employer's WC insurer had been liquidated) argued there was a nonindustrial cause, but the commission and the court rejected this. More importantly, the Fund argued that because Kallstrom had never sustained any traumatic work injury to his back, no occupational claim could be made. The Fund cited the court's use of the phrase "repeated work-related back trauma" in the seminal occupational back disease case of Shelby Mutual v. DILHR, 109 Wis. 2d 655 (Ct. App. 1982). The court rejected this argument and affirmed the commission's decision that an occupational back disease may be acquired as a result of strenuous work done over a period of time, without any traumatic incident. In Shelby, there had been several traumatic back injuries prior to the ripening of the occupational back disease, which explained the court's use of the above-quoted phrase. 

Expense reimbursement issue -- Kallstrom's nonindustrial group health insurer (BPA) had paid substantial medical expenses for Kallstrom's care, and the commission's decision ordered that BPA be reimbursed by the employer and its WC insurer.    The employer's WC  insurer (Reliance) had gone into liquidation.  Pursuant to Wis. Stat. § 646.31(2)(d), the Wisconsin Insurance Security Fund assumed liability for Kallstrom's compensation including medical expense;  however, pursuant to Wis. Stat. § 646.31(11), the Fund was exempt from reimbursing any subrogated "insurer or reinsurer" such as BPA.  The commission agreed that the Fund was not liable for the medical expense BPA had paid, but it argued that pursuant to Wis. Stat. §§ 102.30(4), 102.30(7)(a), and 102.42(1), the employer was liable for it.  The court disagreed, holding that the final sentence of Wis. Stat. § 646.31(11), contains language that also exempts "the insured of the insurer in liquidation" (here the employer) from liability, and this statute is more specific to the facts than those cited from Ch. 102.   The commission interprets the court's explanatory statement that Kallstrom's right to compensation was "not at stake" to mean that BPA must absorb the loss and cannot come after Kallstrom personally for the medical expenses paid.

The Court of Appeals' decision, Wis. Ins. Sec. Fund & Eau Galle Cheese Co v. LIRC & Kallstrom,  (2004AP2157, Filed October 20, 2005) 2005 WI App ___, __ N.W.2d __ , has been recommended for publication.

September 27, 2005 -- In a case growing out of a trucking company's termination of a driver based on concern that his medical condition made it unsafe for him to drive, the Court of Appeals has addressed three issues of significance under the Wisconsin Fair Employment Act:  the scope of § 111.321, which prohibits discrimination by an employer "or other person";  the question of whether a truck driver denied the right to drive because of loss of medical certification under federal Department of Transportation procedures must exhaust federal remedies, and the meaning of the  “individual case-by-case” disability evaluation requirement in § 111.34(2). 

Leon Szleszinski was a truck driver for Transfield, a company which leased its trucks and drivers exclusively to Midwest, a common carrier.  When young, Szleszinski had been diagnosed with Wilson’s disease, a disorder involving copper retention which can manifest as neurological problems, liver disease, or other symptoms.  Midwest received reports that Szleszinski had been driving erratically and requested that he be medically re-evaluated.  His treating physician referred him to a neurologist, who examined him and found some mild neurological deficits but opined that they would not prevent him from operating a motor vehicle.  However, Midwest then sent Szleszinski's records to another physician, Dr. Windhorst, who reviewed them and -- without conducting an examination of Szleszinski -- rendered an opinion that Szleszinski should not be allowed to drive. This opinion was based primarily on a US Department of Transportation medical conference report which had recommended that all individuals diagnosed with Wilson's be disqualified from driving, without exception. Midwest barred Szleszinski from driving, effectively terminating him, and he filed a complaint alleging disability discrimination.  Reversing an ALJ who found discrimination,  LIRC's decision held that the process employed to deny Szleszinki’s medical certification satisfied the “individual case-by-case” requirement because it relied in part on a physical examination by the neurologist as well as on "a narrowly tailored" report by experts in the field of neurological disorders;  it also held that, consistent with Hermann v. ORT Trucking Co.,(LIRC Dec. 13, 1994), a violation of the WFEA should not be found until there has been a determination under the federal safety regulations that an individual is qualified to drive. 

On appeal after a circuit court decision which affirmed LIRC, the Court of Appeals reversed.  Preliminarily, the Court held that Szleszinski was not required to use the federal dispute resolution procedure available to contest medical certification decisions, before commencing a disability discrimination claim under the WFEA.  The Court also rejected Midwest's argument that it was not an "employer" of Szleszinski, concluding that Midwest's actions had “a sufficient nexus with the denial or restriction of” Szleszinski’s employment opportunities to make it an employer, and that in any event it was at very least an “other person” within the meaning of § 111.321.  Turning to the merits, the Court concluded that Midwest did not establish a "safety defense".  The Court held that Dr. Windhorst's medical evaluation was inadequate because applicable federal regulations contemplate that an actual examination will be held, and also because its primary reliance on the medical conference report did not meet the “individual case-by-case” requirement of § 111.34(2), since it relied on general conclusions about a class of individuals. 

The Court of Appeals' decision, Szleszinski v. LIRC, Midwest Coast Transport and Transhield Trucking and Leasing, 2005 WI App __, __ N.W.2d __  (2005AP3033, filed September 27, 2005),  has been recommended for publication.

August 18, 2005 -- In a decision concerning the proper analytical framework for deciding whether a "disability" exists within the meaning of the Fair Employment Act,  the Court of Appeals has held that a diagnosis of asthma alone does not necessarily establish a disability.

The case arose when SBC Communications discharged its employee, Sharal Doepke-Kline, for excessive absences.  Doepke-Kline filed a complaint alleging disability discrimination, asserting that she had been discharged because of her asthma.  LIRC's decision concluded that Doepke-Kline had not shown that she was an individual with a disability within the meaning of the Wisconsin Fair Employment Act because the evidence did not establish that her asthma placed a substantial limitation on her normal life functions or on a major life activity and also failed to show that her pulmonary condition limited her capacity to work.

On appeal to the Court of Appeals after a circuit court decision affirming LIRC, Doepke-Kline argued that Chicago, Milw., St. Paul & Pacific R.R. v. DILHR, 62 Wis.2d 392, 215 N.W.2d 443 (1974) holds that a diagnosis of asthma standing alone establishes a disability within the meaning of the WFEA. She relied on a statement in Chicago, Milw. that "handicap...must be defined as including such diseases as asthma which make achievment unusually difficult".  The Court of Appeals, however, declined to read that statement in isolation, but considered that in context it reflected simply a rejection of an interpretation argued by the employer which would have eliminated asthma under all circumstances.  The Court distinguished Chicago, Milw. as involving a question of perceived disability, and concluded that cases decided after Chicago, Milw. demonstrate that Doepke-Kline had to do more than simply prove a diagnosis of asthma.  Looking to City of LaCrosse PFC v. LIRC, 139 Wis.2d 740, 407 N.W.2d 510 (1987) and  Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343, the Court of Appeals concludes that these decisions can be harmonized with Chicago, Milw. by reading that decision as holding that asthma can be a disability under the WFEA if the claimant establishes the elements articulated in City of LaCrosse.  Concluding that LIRC thus followed the correct standard when it applied the City of LaCrosse analysis to Doepke-Kline's claim of disability, the Court of Appeals upheld the commission.

The Court of Appeals' decision, Doepke-Kline v. LIRC and SBC Communications, 2005 WI App 209, 704 N.W.2d 605 ,  has been recommended for publication.

June 22, 2005 -- The 2005 Edition of the Equal Rights Decision Digest is now available on-line. This edition is updated with summaries of relevant LIRC and court decisions through 2004.  In addition, several areas of the Digest have been reorganized or expanded. 

June 21, 2005 -- The court of appeals (Dist. I) today affirmed the commission's determination of worker's compensation coverage for an individual (Carnett Powell) who was physically assaulted while waiting for a work assignment on the premises of a temporary help agency. Labor Ready and Lumbermen's Mutual v. LIRC and Powell, Appeal No. 2004AP 1440 (publication recommended), affirming Carnett S. Powell v. Labor Ready, Inc and Lumberman's Mutual (LIRC, May 21, 2003).

Powell had arrived at the agency at about 5:15 a.m. to wait in line for potential work assignment. When another individual arrived later and cut to the front of the line, Powell told him he should wait in line like everyone else. Later, after Powell had signed in with the agency and was waiting in its offices for a work assignment, the interloper punched Powell without warning and caused serious injury. The ALJ denied compensation, but LIRC reversed and the circuit court affirmed LIRC. In its decision the court of appeals noted that even though LIRC had extensive experience with the relevant statutes, from a factual standpoint it was a case of first impression. The court stated that since it did not consider the standard of review to be determinative in the case, for discussion purposes it would analyze it under the least deferential de novo standard.

The court held that Powell was an employee of the agency under Wis. Stat. § 102.04(7)(a), because the agency required him to sign an employment application designating him as its employee and defining certain elements of control over him; required him to complete an employee withholding tax form and to complete the agency's safety program; and required him to appear at the agency premises and wait there in order to obtain his work assignments. The court further held that the injury arose out of and in the course of Powell's employment (Wis. Stat. § 102.03(1)(c) and (e)), because as the commission noted in its decision, when injured Powell was "on the employer's premises at the employer's direction for an employment-related purpose, within a reasonable interval after his last work assignment."

May 4, 2005 -- Do you have links or bookmarks to this website?  If so, please change the URL used to point to the LIRC website.  In connection with a server change, there is a new URL which should be used: http://dwd.wisconsin.gov/lirc/ .  While the old URL (http://www.dwd.state.wi.us/lirc/) will continue to work for a time, it will eventually be discontinued.

April 19, 2005 -- 2004 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2004, are now available at this website.

February 28, 2005 -- In a number of court actions filed in counties across the state, the Department of Workforce Development has appealed LIRC decisions involving an interpretation of a provision of the Trade Act, a federal law which provides benefits to employees who lose their jobs because of the effects of foreign competition.

The Trade Act has long included a requirement that to be eligible for weekly TRA payments, a claimant must either be enrolled in training, have completed such training, or have been granted a waiver of training. A claimant can meet this requirement by satisfying any one of these options.

In 2002, Congress amended the Trade Act by adding language under the “enrolled in training” option, stating that the enrollment which that option referred to had to occur by certain defined dates (the “16/8-week deadline”).  The U.S. Department of Labor interpreted the amended language of the Trade Act as if the 16/8-week deadline applied not only to the “enrolled in training” option in which it appeared, but also to the option of having been granted a training waiver.  The DOL interpretation is reflected in informal “Guidance Letters” issued by DOL, but it has not been adopted as a federal regulation. 

In a number of decisions issued in 2004, Wisconsin's DWD followed the federal DOL interpretation, and on that basis it denied benefits to claimants for whom the 16/8-week deadline had passed before DWD considered their eligibility for TRA payments.  DWD did not consider whether the claimants might be eligible for the option of being granted a training waiver, because of the DOL interpretation that such a waiver could not be granted after the 16/8-week deadline. A number of the affected claimants petitioned for LIRC review of DWD decisions denying them TRA benefits.

LIRC set aside the DWD decisions, holding that its interpretation was inconsistent with the language of the Trade Act, which applied the 16/8-week deadline only to the “enrolled in training” option.  LIRC remanded the cases to DWD for it to determine whether the claimants would be eligible for a training waiver under the standards listed in the Trade Act for granting such waivers. An example of LIRC's reasoning in these cases is reflected in its decision in Mary A. Robinson (LIRC, February 9, 2005).

All of these LIRC decisions have now been appealed to circuit court.  The DWD argues that LIRC’s interpretation of the Trade Act language is erroneous.  DWD is also arguing that LIRC is legally bound to follow DOL’s interpretation because DWD signed a contract with DOL binding the State of Wisconsin to follow all DOL “Guidance Letters”.

The 19 separate actions commenced by DWD are pending in circuit courts in Dane, Kewaunee, Outagamie, Ozaukee, Manitowoc, Milwaukee, Portage, Racine, Washington, and Wood counties.

December 22, 2004 - An employee who sustained a knee injury while playing softball during a paid break was properly paid worker’s compensation benefits, the court of appeals ruled today in Styberg Engineering et ano. v. LIRC and Hetchler, 2004 WI __, __Wis.2d__, __N.W.2d__ (#04-1039, 2004-12-22) (publication recommended), affirming the commission’s decision in Hetchler v. Styberg Engineering and Combined Specialty Ins. (LIRC, Aug. 28, 2003). 

In the early months of 2000, the employer, Styberg Engineering implemented a nonsmoking policy, and forbade its employees from smoking on its premises during breaks. That spring, when the weather became fair enough to spend the break outdoors, Styberg set up a basketball hoop and posted a notice that the hoop was available for employees to use during their break periods. Subsequently, employees also began regularly to play softball in the area of the basketball hoops on their breaks, providing the softball equipment themselves. Hetchler joined in, and slipped while swinging the bat and fell to the ground, sustaining a patellar dislocation of his right knee.

The ALJ initially denied compensation, but LIRC reversed. In so doing, LIRC noted that a case relied upon by Styberg Engineering, YMCA v. Industrial Commission, 235 Wis. 161, 292 NW.2d 324 (1940) had been at least implicitly over-ruled. Instead, LIRC followed a rule set out in Larson and Larson, Worker’s Compensation Law, which holds that on break, on premises, recreational activity is an “incident of employment” when the activity has gone on long enough for a reasonable employer to have become aware of it. Describing the factual scenario in the case as one of first impression, the Court of Appeals nonetheless accorded LIRC’s decision great weight deference because LIRC employed its special expertise in making a value judgment about what constituted employment and its incidents. The Court further described the YMCA case as factually distinguishable and at least arguably overruled by later case law, and characterized Hetchler’s sporting activity as a momentary and insubstantial departure from his duties. According, the Court of Appeals concluded that LIRC’s decision finding Hetchler’s injury compensable comported with prevailing case law.

June 30, 2004 - The Wisconsin Supreme Court issued its decision today in a case involving the duty of reasonable accommodation of disabilities under the Fair Employment Act.  Hutchinson Technology Inc. v. LIRC and Roytek, 2004 WI 90, __Wis.2d__, __N.W.2d__ (#02-3328, 2004-06-30).

Susan Roytek was a production employee for Hutchinson Technology Inc. ("HTI") in a position that worked twelve-hour shifts. Due to a back condition, she was restricted to working no more than 8 hours daily.  Hutchinson allowed Roytek to work 8-hour shifts for ten months, but then terminated her, and Roytek filed a complaint alleging disability discrimination.  LIRC issued a decision affirming an ALJ's findings and conclusion that Hutchinson had discriminated against Roytek.  LIRC held that Hutchinson had not established that it would have been unreasonable to accommodate Roytek by continuing to allow her to work an 8-hour shift or that it would be a hardship for it to do so.  LIRC's decision was upheld by circuit court and then, in an unpublished decision, by the District III Court of Appeals.  Hutchinson then filed a petition for review by the Supreme Court.  Today's decision by the Court affirmed the lower courts and LIRC's decision.

In its decision, the Court rejected the suggestion by HTI that it revise its 1987 holding in La Crosse Police Comm'n. v. LIRC, 139 Wis.2d 740, 755, 407 N.W.2d 510 (1987) that under the WFEA, the "limits the capacity to work" element of the definition of "disability" refers to inability to work in the specific job at issue.  Adhering to the approach of La Crosse, the Court concluded that Roytek was an individual with a disability because her back condition limited her capacity to work in her job at HTI.  Turning to the question of reasonable accommodation, the Court held that the initial burden is on the employee to prove that a reasonable accommodation is available.  Roytek satisfied that burden here, the Court held, citing to its holding in Crystal Lake Cheese Factory v. LIRC and Catlin  that a change in job duties may be a reasonable accommodation in a given circumstance, and to the fact that HTI's ability to allow her to work an 8-hour shift was clear from it having done so for months.  The Court then concluded that HTI had failed to establish that the proposed accommodation would have imposed a hardship on it, where it relied on speculation and presented no evidence that hardship would in fact occur.

June 29, 2004 --  The Wisconsin Supreme Court issued its decision today in a case revisiting the "odd lot" rule in Workers Compensation cases, Beecher v. LIRC, Outokumpu Copper Kenosha and Fremont Indemnity, 2004 WI 88, __Wis.2d__, __N.W.2d__ (#02-1582, 2004-06-29).

Ralph Beecher injured his back at work in April 1997, and eventual required three surgical procedures. He returned to work for his employer, Outokumpu Copper Kenosha, in light duty work for two weeks in April 1998, until Outokumpu stopped providing such work to him. Thereafter, Outokumpu moved to another state and did not offer Beecher a chance to relocate. He began a claim for permanent total disability. After hearing, the ALJ found that Beecher was permanently and totally disabled from his work injury.  LIRC's decision  found that Beecher had sustained a disability from an occupational disease arising out of his employment with Outokumpu, but that he did not establish a prima facie case for permanent total disability. LIRC instead awarded Beecher compensation for permanent partial disability for loss of earning capacity at 60 percent.

Explaining its decision, LIRC noted that the initial written opinion of Beecher’s vocational expert relied on an assumption that Beecher’s treating doctor restricted him to part-time work, whereas LIRC read the treating doctor’s final restrictions to permit full time work. Although Beecher’s vocational expert testified at the hearing that he remained of the opinion that Beecher was permanently and totally disabled even if he was not restricted to part-time work, LIRC rejected that opinion, finding the expert did not persuasively explain why his opinion remained the same given the prominence of the part-time restriction in his first report. In addition, LIRC held that the final set of work restrictions suggested that Beecher could have made more of an effort to find work, a factor that may be considered against him in determining whether he established a prima facie case of odd-lot unemployability.

The commission’s decision was affirmed at circuit court, but the court of appeals reversed in a published decision, Beecher v. LIRC, Outokumpu Copper Kenosha and Fremont Indemnity, 2003 WI App 100, 663 N.W.2d 316. The court read LIRC’s decision to require such a worker to prove that he or she has conducted a job search and has been unable to find a job with the physical limitations the doctor has ordered before the burden shifts to the employer. Noting that LIRC drew support for its decision from § 84.01[4] of Larson's Workers' Compensation Law (1st ed. 2001), the court questioned whether that section of the Larson treatise was actually applicable to the case at hand, but concluded that in any event LIRC erroneously applied a standard in Mr. Beecher’s case that is not the current law in Wisconsin under the supreme court’s holding in Balczewski v. DILHR, 76 Wis. 2d 487 (1977).

On appeal to the supreme court, the commission argued that the commission properly found Mr. Beecher had not made a prima facie case, asserting that § 84.01[4] of the Larson treatise had been implicitly incorporated into Wisconsin law by the court’s adoption of other sections of the treatise dealing with the odd lot doctrine in Balczewski. The commission also argued that the odd-lot doctrine analysis under Balczewski should be re-evaluated and expanded in light of the enactment of Wis. Stat. § 102.17(7) (which gives the commission the authority to use or not use the opinions of vocational experts) and the promulgation of a rule (Wis. Admin. Code DWD § 80.34(1)) stating factors -- including efforts to find suitable employment -- to be considered by the commission in permanent total disability cases. For its part, Outokumpu conceded the commission erred in finding Mr. Beecher had not a prima facie case, but arguing it had rebutted the prima facie case by establishing work was actually available for Mr. Beecher.

The supreme court rejected all of these arguments in turn, affirmed the decision of the court of appeals, and remanded for consideration of Outokumpu’s case on rebuttal. It gave the commission’s legal conclusions no deference, noting it need not defer to the agency interpretation of the court’s own “judge made adjunct to the law of worker’s compensation” in Balczewski. In addition to the arguments of the parties, the court also discussed the meaning of the term “prima facie case” in the context of the odd lot doctrine.

June 18, 2004 -- The 2004 Edition of the Equal Rights Decision Digest  is now available on-line.  

In addition to having been updated to include summaries of significant LIRC and judicial decisions issued in 2003, the Digest has been significantly expanded by the addition of summaries of a large number of decisions of the old Wisconsin Personnel Commission. Many of these summaries are contained in a new Digest section covering the  state employees "Whistleblower" law, Wis. Stat. § 230.80-89.  With the elimination of the Personnel Commission, authority for enforcement of that law has passed to the Equal Rights Division.

June 15, 2004 --  An employer must pay workers compensation benefits during the pendency of judicial review proceedings where the insurer concedes a compensable injury but disputes the date of disability and may be held liable for bad faith penalties based on its refusal to do so, the supreme court ruled today in Cesare Bosco v. LIRC, A.T. Polishing and Shelby Insurance Co., 2004 WI 77.

Shelby Insurance Company (Shelby) had defended the underlying benefits claim by asserting the issue in dispute was the date of disability, asserting an earlier date of disability when it was not on the risk, a defense which ultimately did not prevail. Shelby did not contest the finding of permanent total disability from occupational exposure. During judicial review of the benefits claim, Bosco demanded payment from the employer, A.T. Polishing, under Wis. Stat. 102.23(5). A.T. Polishing refused, and Bosco brought a claim for bad faith against A.T. Polishing.

Shelby argued that Wis. Stat. § 102.23(5) applies only to cases where liability for a specific date of injury is undisputed and the only issue on appeal is whether the employer had insurance coverage for that date or which insurance company was on the risk for that particular date. Shelby argued that had it been successful in arguing that the date of injury was 1993, A.T. Polishing would not have automatically been liable for a 1993 date of injury; rather, according to Shelby, Bosco would have to file another Application for Hearing asserting a 1993 date of injury, join the appropriate insurer, and prove A.T. Polishing was liable for a 1993 date of injury.

Concluding that Wis. Stat. § 102.23(5), a statute that had not been previously interpreted, was ambiguous, the commission's decision held that A.T. Polishing could reasonably refuse to pay compensation under the statute and denied the claim for bad faith. The commission’s decision was reversed by the circuit court. That reversal was upheld in a published decision of the court of appeals and, ultimately, by the supreme court.

The supreme court, noting that the commission had not previously interpreted Wis. Stat. § 102.23(5) and that the commission’s decision did not definitely interpret the statute (and hence provided no real guidance), reviewed the commission’s decision without deference. It went on to conclude that Wis. Stat § 102.23(5) unambiguously requires an employer to make payment to a disabled employee pending appeal of a date of injury defense in an occupational disease case when the employer's liability is not disputed on appeal and the only question is who will pay benefits;  that Shelby's interpretation of Wis. Stat. § 102.23(5) is not reasonable or fairly debatable as a matter of law because Shelby's original appeal did not contest A.T. Polishing's liability and involved only the question of whether Shelby was liable to pay benefits;  and that because Wis. Stat. § 102.18(1)(bp) specifically allows for the imposition of bad faith penalties on an employer for failure to pay benefits and because Wis. Stat. § 102.23(5) specifically directs the employer to pay benefits pending an appeal when the only issue is who will pay benefits, an employer may be subject to bad faith penalties under Wis. Stat. § 102.18(1)(bp), independent from its insurer, when it fails to pay benefits in accordance with Wis. Stat. § 102.23(5).