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

October 7, 2014 -- In a per curiam decision today in Sohn Manufacturing and Secura Insurance v. LIRC and Tanya Wetor, 2014 WI 112, __ Wis. 2d __, __ N.W.2d __, an evenly-divided Supreme Court today affirmed the Court of Appeals' published decision (2013 WI App 112, 350 Wis. 2d 469, 838 N.W.2d 131),which in turn affirmed the commission’s decision finding that a worker’s injury was caused by the employer’s violations of an OSHA standard and the safe place statute (Wis. Stat. § 101.11) and ordering the employer to pay an additional 15% under Wis. Stat. § 102.57.

On appeal, the employer argued OSHA preempted the commission's ability to award payments under Wis. Stat. § 102.57. However, the Court of Appeals noted that Congress explicitly preserved worker's compensation laws from preemption through a saving clause in OSHA. It rejected the employer’s argument that § 102.57 constituted “enforcement” of federal workplace safety regulations and OSHA, stating that § 102.57 is rather a worker's compensation law under the OSHA savings clause.

 

September 16, 2014 -- In a decision recommended for publication, the Court of Appeals has clarified the applicability of the Wisconsin Fair Employment Act's statute of limitations to cases of pay discrimination.

Diane Mack was hired by Rice Lake Harley-Davidson to work as a motorcycle salesperson in 2003.  In 2009, after her employment was terminated, she filed a discrimination complaint under the WFEA, alleging that she had been discriminatorily paid less than a male colleague, Dodge, who was hired in 2004 and given a salary higher than hers. Rice Lake argued that the WFEA's 300-day statute of limitations began to run in 2004, when Mack was aware that Dodge was paid more.  An ALJ found the pay allegation timely, relying on the paycheck accrual rule in the federal Lilly Ledbetter Fair Pay Act of 2009.  On appeal, LIRC rejected the ALJ's reliance on the Ledbetter Act, but  it arrived at the same conclusion based on a different rationale.

LIRC noted that in a published decision issued almost 20 years ago, Abbyland Processing v. LIRC, 206 Wis. 2d 309, 557 N.W.2d 419  (Ct. App. 1996), the Court of Appeals had held that "[S]alary discrimination is an ongoing matter and can be challenged if the result of the discrimination occurs both within and outside the statute of limitations."  LIRC also noted though, that in subsequent years it had issued decisions which relied more on federal court interpretations of the statute of limitations in Title VII, and which increasingly moved away from the notion of salary discrimination as ongoing discrimination.  In LIRC's decision in Mack, it determined that the course taken by such decisions was contrary to the holding of Abbyland,  and that it was appropriate for it to "find its bearings and right its course" in the interpretation of the WFEA's statute of limitations.

In this week's decision, Rice Lake Harley Davidson v. LIRC and Diane Mack, 2014 WI App __, __ Wis.2d __, __ N.W.2d __, the Court of Appeals agreed with and affirmed LIRC's decision.  Extending due weight deference to LIRC's interpretation, the court reasoned that in view of the Abbyland decision, LIRC's interpretation was more reasonable.   Abbyland, the court stated, is "binding precedent ... directly on point."  The court also distinguished several other decisions which Rice Lake had argued were inconsistent with the court's reading of Abbyland.

 

September 4, 2014 -- The 2014 Edition of the Equal Rights Decision Digest is now available on-line. This edition is updated with summaries of relevant LIRC and court decisions issued during calendar year 2013.

 

July 22, 2014 --  In a decision issued today,  the Wisconsin Supreme Court affirmed a 2011 LIRC decision, Asma Masri v. Medical College of Wisconsin, ERD Case No. CR200902766 (LIRC, Aug. 31, 2011), concerning the applicability of the Wisconsin Health Care Workers Protection Act, Wis. Stat. § 146.997.  

 Giving “due weight” deference to LIRC’s decision, the court agreed with LIRC that the HCWPA applies only to employees, a category that does not include interns who do not receive compensation or tangible benefits.

Asma Masri v. LIRC and Medical College of Wisconsin, 2014 WI  81, __ Wis.2d __, __ N.W.2d __ .

 

March 20, 2014 -- 2013 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2013, are now available at this website. 

 

February 12, 2014 -- As a result of a change made by the Department of Workforce Development, on whose servers LIRC's website is currently maintained, LIRC has been required to shift to a different type of search engine for pages at our website. 

DWD decided to move to a "Google Search Appliance" ("GSA") search engine.  This will affect the process of searching for decisions through our  UI decision search,   WC decision search  and  ER decision search  pages,  as well as our whole-site search  page.  Users will find that as a result of this change, there are significant changes in the way queries are allowed/required to be worded.  This includes, but is not limited to, a different default treatment of multiple words in series (previously treated as a phrase, now treated as words joined by an AND operator, with phrases created by use of quote marks),  loss of the ability to "nest" phrases,  and the loss of the "wild card" feature.  

For more information, please refer to the search pages mentioned above.

 

August 21, 2013 -- The Labor and Industry Review Commission has a new member, Dave Falstad.  Having been appointed by Governor Walker, Falstad began serving as a commissioner on August 5, 2013.

Falstad has a variety of experience in both the public and private sector. Falstad concentrated his 25-year private sector career at CASE-IH, a fortune 500 multinational manufacturing corporation, where he was Senior VP, Secretary and General Counsel.  Prior to his recent resignation, Falstad served as a Waukesha County Supervisor and chaired the County Judiciary and Law Enforcement Committee.  He also served on the Wisconsin Counties Association’s Judicial and Public Safety Steering Committee and was a member of the Waukesha County Airport Operations Commission.  Prior to running for elective public office, Falstad was a Commissioner and Chairperson of the Labor and Industry Review Commission for 10 years.  Falstad also has eleven years of leadership experience at the regional level as a former Commissioner and Chairperson of the SEWRPC, the Southeastern Wisconsin Regional Planning Commission.

Falstad received his Bachelor’s Degree in Economics from the University of Wisconsin, Madison, and his Juris Doctorate from the University of Wisconsin Law School.

Falstad fills the seat of former Commissioner and Chairperson, Robert Glaser, who recently retired.

 

August 7, 2013 -- In Sohn Manufacturing and Secura Insurance v. LIRC and Tanya Wetor, 2013 WI App 112, __ Wis. 2d __, __ N.W.2d __, (petition for review filed) the Court of Appeals today affirmed the commission’s decision finding that a worker’s injury was caused by the employer’s violations of an OSHA standard and the safe place statute (Wis. Stat. § 101.11) and ordering the employer to pay an additional 15% under Wis. Stat. § 102.57.  

On appeal to the Court of Appeals, the employer first argued federal law preempts LIRC's ability to award payments under Wis. Stat. § 102.57. However, the Court noted that Congress explicitly preserved worker's compensation laws from preemption through a saving clause in OSHA. It rejected the employer’s argument that § 102.57 constituted “enforcement” of federal workplace safety regulations and OSHA, stating that § 102.57 is rather a worker's compensation law under the OSHA savings clause.

The employer also argued that that violations of the safe place statute and of federal regulations may not form the basis for an increased compensation award under § 102.57. The employer noted that § 102.57 requires a violation of a statute or rule “of the department of workforce development,” and asserted that neither the safe place statute nor OSHA are “of the department.” The Court held that the most reasonable reading of § 102.57 is that “of the department” modifies “order” and not “statute.”

 

July 13, 2013 -- In Xcel Engery Services, Inc., v. LIRC and John Smoczyk, 2013 WI 64, 349 Wis. 2d 234, 833 N.W.2d 665, the Supreme Court today upheld a commission decision finding a worker permanently and totally disabled, but reversing a Court of Appeals decision that directed dismissal of the appeal for the plaintiff-employer’s failure to name its insurer as an “adverse party,” under Wis. Stat. § 102.23(1)(a) (2011–12).

Regarding the procedural issue, the Court held that an “adverse party” under Wis. Stat. § 102.23(1)(a) is (1) a party “in whose favor an award has been made” or (2) a party “whose interest is in conflict with the modification” of LIRC's order sought by the complainant. As the plaintiff-employer’s insurer met neither definition, it did not have to be named.

As to the merits of LIRC’s decision that the worker was permanently totally disabled, the employer first argued that the record lacked credible and substantial evidence to support the commission’s decision. The Court disagreed, noting that LIRC’s decision set forth the elements of a prima facie case under the odd-lot doctrine, and then applied its findings to that law. The Court observed that LIRC relied on the opinions of the vocational experts and explicitly determined that the opinion of the worker’s vocational expert was persuasive than the employer’s vocational expert.

The employer next argued that LIRC exceeded its authority when it issued awarded permanent total disability benefits to the employer, because LIRC’s order “conflicted with the un-appealed holding” of an earlier ALJ decision that further medical procedures were required to determine whether the worker was permanently and totally disabled. The Court rejected this argument too, explaining it both disregarded the non-binding effect of ALJs' findings on LIRC's decisions and also ignored LIRC's express statutory authority over the worker's timely appeal from the second ALJ's order denying permanent and total disability benefits.

 

May 26, 2013 -- 2012 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2012, are now available at this website.

 

April 22, 2013 -- The Labor and Industry Review Commission has a new member, Bill Jordahl.   Having been appointed by Governor Walker and confirmed by the Senate, Bill began serving as a commissioner on April 18, 2013.

Jordahl has a variety of experience with state government.  He served as Governor Tommy Thompson's Policy Director and legislative liaison to the Senate during the Governor's first term in office.  He was a special assistant to two secretaries of the Department of Transportation, Ron Fiedler and Chuck Thompson.  During this time (1990-1995) he also attended law school at the University of Wisconsin, receiving a J.D. in 1995.  He then went to work for Wisconsin Power and Light, which became Alliant Energy two years later when it merged with several Iowa-based utilities.  At WP&L-Alliant he at varying times was manager of Federal Government Affairs, led special team projects developing regulatory filings for Federal Energy Regulatory Commission dockets, and for the last 12 years was Alliant Energy's Manager of Government Affairs in Minnesota and Wisconsin.  In this role he represented Alliant Energy's interests before the state legislatures and executive agencies of the two states.

Jordahl fills the seat of former Commissioner Ann Crump, whose term recently expired.

In addition to having a new member join it, the commission voted today to make Laurie R. McCallum the Chairperson of the commission.

 

April 19, 2013 -- The 2013 Edition of the Equal Rights Decision Digest is now available on-line. This edition is updated with summaries of relevant LIRC and court decisions which were issued during calendar year 2012.

 

April 2, 2013 -- In a decision issued today, the Court of Appeals affirmed a LIRC decision that the Health Care Worker Protection Act, Wis. Stat. § 146.997, provides protections against retaliation only to "employees," and that complainant Asma Masri, who was working at the Medical College of Wisconsin as an unpaid intern, was not an "employee" and thus could not pursue her complaint that her internship was terminated because of her reporting of alleged medical ethics violations.  Finding "due weight" deference to be appropriate, the court upheld LIRC's interpretation of the statute, stating that "[g]iven the text of the entire statute, it is clear that the legislature only intended to protect employees from retaliatory behavior for filing a protected report." The court also agreed that Masri could not be considered an employee because she received no tangible benefit from her services.  The court's decision, from which Judge Ralph Adam Fine filed a dissent, has been recommended for publication.   Asma Masri v. LIRC and Medical College of Wisconsin, 2013 WI App_,_Wis.2d _, _ N.W.2d _ . 

 

September 14, 2012 -- The supreme court granted Xcel Energy's petition for review today in Xcel Energy Services, Inc., v. LIRC and John Smoczyk, 2012 WI App 19, 339 Wis. 2d 413, where the the Court of Appeals affirmed a dismissal of Xcel Energy’s complaint  on the ground that Xcel failed to name its worker’s compensation insurance carrier. 

 

June 19, 2012 -- In Grede Foundries, et. al. v. LIRC & Steven Northcott, 2012 WI App 86, __ Wis. 2d __, __ N.W.2d __, the court of appeals today reversed the commission's decision assessing a 25% bad faith penalty against Grede, a self-insured employer. Due to bankruptcy and lack of funds, Grede delayed payment of a department order for 72 days, and during that period also failed to contact its surety bondholder to request payment of the order. The commission's bad faith penalty was premised on Grede's failure to contact the surety. The court of appeals noted that concurrent with the filing of its Chapter 11 bankruptcy action, Grede moved the bankruptcy court to allow it: (1) to continue its existing worker's compensation (WC) programs; and (2) to pay WC benefits and expenses related to WC claims made prior to the filing of the bankruptcy petition. The bankruptcy petition was filed on 6/30/09, and the department's order was issued on 6/17/09. In support of its motion Grede averred to the bankruptcy court that calling upon its surety to pay the department order would require it to pay additional bank fees to avoid termination of its letters of credit. The bankruptcy court granted Grede's motion, authorizing it "…in its sole discretion, to continue its existing worker's compensation programs and to pay worker's compensation benefits and related expenses with respect to Prepetition Worker's Compensation Claims."

The court of appeals interpreted the bankruptcy court's order giving Grede the "sole discretion" to pay WC claims/expenses, incurred prior to the bankruptcy petition, as giving Grede the right not to pay the department's order of 6/17/09. Apparently, the court of appeals accepted the "sole discretion" phrase as giving Grede the discretionary right to pick and choose which WC claims/expenses it would pay while in bankruptcy. Grede came up with its own funds to pay the department order 72 days after the deadline.

The court also rejected the argument that the "police and regulatory power" exception found in 11 U.S.C. 362(b)(4), which allows governmental units to enforce judgments during the bankruptcy proceeding, trumped Grede's bankruptcy stay. The court held the department order was a "money judgment," and 11 U.S.C. 362(b)(4) provides that "money judgments" are not included in the "police and regulatory power" exception. The court cited Industrial Commission of Ohio v. Mansfield Tire and Rubber Company, 660 F.2d 1108 (6th Cir. 1981) to support its interpretation of the commission's findings as involving the prohibited "enforcement of a money judgment."

 

June 20, 2012 -- 2011 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2011, are now available at this website.

 

May 11, 2012--In Aurora Consolidated Health Care & Sentry Ins. v. LIRC & Jeffrey Schaefer, 2012 WI 49, the court affirmed a Court of Appeals decision, that in turn affirmed a LIRC's decision to deny Aurora's request to cross-examine the independently-appointed physician, Dr. Jerome Ebert, regarding the second of his two medical reports submitted in response to LIRC's discretionary orders for additional evidence.  The court also upheld LIRC's finding that Schafer's work injury had resulted in PTD.

In 2001, Schaefer sustained a work-related back injury that led to two fusion surgeries and permanent residuals.  In 2005, Schaefer developed a nonindustrial right hip condition and underwent right total hip replacement with a good result.  In 2007, he underwent a third fusion surgery related to the work injury, and claimed PTD.  The primary medical dispute concerned what elements of Schaefer's disability were attributable to his back condition as opposed to his nonindustrial, post-work-injury hip condition.  LIRC ordered an independent medical opinion, and pursuant to its authority under Wis. Stat. 102.17(1)(g), the department appointed Dr. Ebert to give that opinion.  Dr. Ebert opined that all of Schaefer's permanent disability was due to the work-related back injury, and also assessed certain permanent restrictions.  Aurora's voc. expert opined that based on Dr. Ebert's restrictions Schaefer could perform numerous jobs.

Schaefer asserted to LIRC that Dr. Ebert's opinion failed to clarify whether or not Schaefer could maintain a consistent work schedule, and LIRC thereafter ordered a second opinion from Dr. Ebert to address the work schedule question.  In his second opinion Dr. Ebert indicated that Schaefer could work an 8-hour day, but he would need two unscheduled breaks and would miss work about twice a month due to pain flare-ups.  The parties were given 30 days to respond to Dr. Ebert's second report, and Schaefer's voc. expert opined that the breaks and missed work would make Schaefer unemployable.  Thirty days after Dr. Ebert's report Aurora requested a two-week extension in order to provide a "supplemental report" as a response to Dr. Ebert.  Two weeks later Aurora provided another vocational expert's report opining Schaefer was employable, and also submitted a request to LIRC that it either be allowed to cross-examine Dr. Ebert regarding his second opinion, or that Dr. Ebert be required to address three additional, written questions posed by Aurora.  LIRC denied both requests and found that Schaefer was PTD.

The court first addressed Aurora's claims that it had statutory and due process rights to cross-examine Dr. Ebert.  The court noted that 102.17(1)(g) provides the right to "rebut" the independent physician's report, and LIRC's order allowed Aurora to submit medical/vocational reports in rebuttal to Dr. Ebert.  The court held that LIRC acted within its reasonable discretion to deny cross-examination, noting that 102.17(h), 906.14(1), and 907.06(1) all provide the specific right to cross-examine, while 102.17(1)(g) does not.  Aurora argued that since 102.17(1)(d) specifically provides the right to cross-examine, by implication (1)(g) should also be read to provide that right.  The court responded that (1)(d) applies only to reports "presented by a party," not those ordered by LIRC or the department.

The court additionally held that the due process right does not in all instances include the right to cross-examine.  The court explained  that the administrative model of procedural due process is not identical to the judicial model, and that Aurora was afforded administrative due process with ample opportunity to rebut Dr. Ebert's opinion with medical and vocational evidence of its own.

The court also accepted LIRC's explanation provided to Aurora for denying the alternative request to direct three written questions to Dr. Ebert, asking whether his opinion was given to a reasonable degree of medical probability, and whether Dr. Ebert's restrictions would change for part-time or another "level" of work.  LIRC answered that it knew Dr. Ebert's opinion was given to a reasonable degree of medical probability, and it saw no useful purpose in asking Dr. Ebert about part-time or other levels of work.

The court also emphasized the fact that Aurora had waited so long after Dr. Ebert's opinion to come up with the request for cross-examination.  Finally, the court affirmed the finding of PTD.

 Justice Roggensack submitted the sole dissent, relying upon 102.17(1)(g)'s provision to allow rebuttal "on further hearing."  The majority noted that in oral argument Aurora's counsel conceded that he had not requested additional hearing, but only wanted "to ask Dr. Ebert some questions about his opinions."  Additionally, in footnote # 8 to the majority opinion, the majority made it clear that there was no right to a hearing for cross-examination, but that a hearing might be available "for other purposes."

 

April 10, 2012 -- The 2012 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 2011.

 

March 22, 2012---In City of Appleton Police Dept. v. LIRC & Michael Nofzinger, 2012 WI App 50, __ Wis. 2d __ (petition for review pending), the court of appeals affirmed LIRC's decision finding that a policeman injured while performing push-ups at home as part of his fitness training for the employer's mandatory, twice-a-year physical fitness test, was injured while performing services arising out of and in the course of his employment.

The employer requires its officers to perform push-ups in each of the physical fitness tests, and the push-ups must be performed in accordance with the employer's specific standards.  The collective bargaining agreement requires each officer to provide a signed statement indicating that he/she has participated in a personal physical fitness training program during the 6 months preceding each test.  As a result of receiving a "good" or "excellent" score on the test, officers become eligible for a retirement bonus incentive.  Lower-scoring officers are not eligible for the bonus, and can be subject to discipline.  While training at home for one of these upcoming fitness tests, Nofzinger was performing push-ups on a carpeted basement floor.  As he performed his twelfth succesive push-up he sustained a rotator cuff injury to his shoulder.

The employer argued that Nofzinger's injury was excluded from coverage under Wis. Stat. 102.03(1)(c)3. (the "physical well-being program" exclusion), because performing the push-ups was allegedly voluntary and without compensation.  The court agreed with LIRC that the applicant was required to perform push-ups in order to prepare for a test that itself required the performance of push-ups.  Additionally, there was no evidence that the employer provided on-duty time or on-premises facilities for officers to train for the mandatory tests, and therefore fact that the employer did not directly control the performance of the push-ups was not significant.  The employer argued that LIRC's decision saddled it with risks it could not minimize, but the court rejected this argument, citing the employer's deliberate choice to include push-ups in the fitness test regimen, its provision of a training DVD to demonstrate acceptable standards for push-ups, its failure to circumscribe the time or place for training, and the employer's inherent acceptance of risk in requiring the training and tests.

 The court declined to address whether or not LIRC correctly found that Nofzinger was compensated for his training activity, because without the element of voluntariness the exclusionary provision of Wis. Stat. 102.03(1)(c)3, does not apply (the circuit court found the retirement bonus constituted compensation).  The court applied the great weight deference standard, citing Honthaners v. LIRC, 240 Wis. 2d 234; and Styberg Engineering v. LIRC, 278 Wis. 2d 540.

  

January 22, 2012 -- In Xcel Energy Services, Inc., v. LIRC and John Smoczyk, 2012 WI App 19, 339 Wis. 2d 413 (petition for review pending), the Court of Appeals affirmed a dismissal of Xcel Energy Services, Inc.’s complaint must be dismissed on the ground that Xcel failed to name its worker’s compensation insurance carrier.  The court held the insurer was an “adverse party” under Wis. Stat. § 102.23(1)(a), citing Miller Brewing Co. v. Labor & Industry Review Commission, 166 Wis. 2d 830, 480 N.W.2d 532 (Ct. App. 1992), aff’d 173 Wis. 2d 700, 495 N.W.2d 660 (1993) holding that an adverse party” for worker’s compensation actions in circuit court “includes any party bound by the Commission’s order or award granting or denying compensation to the claimant.”

 

December 21, 2011 -- In M.M. Schranz Roofing, Inc & Transportation Ins. Co. v. First Choice Temporary, Metlife Ins. Co., LIRC & Eddie Crews, appeal no 2011AP345 (Wis. Ct. App. December 21, 2011) (recommended for publication), the court affirmed LIRC's decision finding that Schranz/Tranportation must reimburse First Choice/Metlife for over 3 million dollars in compensation paid after Eddie Crews (now deceased) fell off a ladder while working on a roofing project that Schranz had contracted with Milwaukee Public Schools. Schranz' contract with the school district required that 20 percent of the work be performed by minority subcontractors. The commission found that to help meet this requirement Schranz told Crews to sign up for employment with First Choice (a temporary help agency), and then Schranz arranged for Freeman (a minority individual with a sole proprietorship construction business) to hire Crews, ostensibly for his business. But Schranz had all along intended to have Freeman "loan" Crews back to Schranz for its roofing project. Crews had previously been working directly for Schranz as a roofer. After all this had taken place Crews fell off the roof while performing the work under Schranz' supervision. Schranz had been paying Crews' wages to Freeman, who had been taking a cut out of them before giving the balance to First Choice, who then paid Crews' wages out of the remainder. First Choice thought that Crews was working for Freeman.

Schranz asserted that First Choice acted as a statutory temporary help agency (Wis. Stat. 102.01(2)(f)) when it hired Crews and placed him with Schranz, thus making First Choice the liable employer pursuant to Wis. Stat. 102.04(2m). The court adopted LIRC's rejection of this argument on the basis that Wis. Stat. 102.04(2m) attaches liability only to temporary help agencies that have "placed or leased" the injured employee with the employer with whom the injury occurs. First Choice placed Crews with Freeman not with Schranz. A key fact for LIRC and the court was that First Choice was not a knowledgeable participant in Schranz' plan, and therefore did not "place" Crews with Schranz. The Seaman Body tests (204 Wis. 157) for loaned employees apply to this case, as was held in the Dist. I case decided in 2001. Application of those tests demonstrates that Crews was loaned to Schranz by Freeman, making Schranz the "special employer" of the "loaned employee," Crews. Freeman escapes liability because he had no implied or express employment contract with Crews.

 

September 23, 2011 -- The Supreme Court today granted a petition for review in Aurora Consolidated Health Care & Sentry Ins. v. LIRC & Jeffrey Schaefer, 2010 WI App 173, 330 Wis. 2d 804, 794 N.W.2d 520, where the Court of Appeals affirmed LIRC's finding of permanent total disabililty; affirmed LIRC's interpretation of Wis. Stat. 102.17(1)(g), allowing admission of an independent medical opinion without cross-examination of the independent physician; and affirmed that the denial of cross-examination in this context is not a violation of due process.

 

July 12, 2011 -- 2010 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2010, are now available at this website.

 

July 12, 2011 -- In DeBoer Transportation v. Charles Swenson and LIRC, 2011 WI 64, __ Wis. 2d __, __ N.W.2d __, the Supreme Court upheld the Court of Appeals’ decision that the commission erred in concluding that an employer failed to show “reasonable cause” for its refusal to rehire an injured worker, as required by Wis. Stat. § 102.35(3). 

The injured worker, a truck driver, was required to complete a “check ride” as part of a reorientation following a work injury.  The worker asked to have his check-ride done locally so that he could still be home to take care of his father. The employer refused because its policy required the worker to have the check-ride and because the employer had never before allowed any exceptions to this policy.  The worker never returned to work.  In its 2-1 decision, the commission affirmed the decision of an ALJ who found the employer unreasonably refused to rehire the worker by refusing to accommodate his request. 

In reversing the commission, the Supreme Court rejected the commission’s “accommodation” rationale.  The Court held the commission applied an unreasonable interpretation of Wis. Stat. § 102.35(3) by concluding that the employer did not show reasonable cause because the employer failed to adequately explain why it would be an unreasonable burden to change its check-ride policy so that Swenson could meet his personal care obligations. The Court held that Wis. Stat. § 102.35(3) does not require an employer to change its legitimate and long-standing safety policies in order to assist an employee in personal obligations. Therefore, by adding this requirement into the statute, the commission unreasonably interpreted and applied the words chosen by the legislature. 

 

June 16, 2011--In MG&E v. LIRC and Dave Parent,  2011 WI App 110, __ Wis. 2d __, __ N.W.2d __, the Court of Appeals reversed the circuit court and upheld the commission's decision that Parent was entitled to 5% PPD for a meniscectomy in addition to 50% PPD for a subsequent total knee replacement (55% total PPD), because Wis. Admin. Code § DWD 80.32(4) provides for such "stacking" of PPD awards when successive surgeries are each attributable to the same work injury.  The decision relies heavily on the Wisconsin Supreme Court's decision upholding LIRC's "stacking" interpretation in a case in which LIRC awarded cumulative PPD awards for two successive ACL surgeries, each attributable to the same work injury (DaimlerChrysler, 299 Wis. 2d 1). 

MG&E first argued that the commission had been inconsistent in applying its "stacking" interpretation of the code.  The court analyzed the commission's decisions issued since DaimlerChrysler and found them to be consistent in their interpretation of the code, except for one case which the commission credibly explained was due to the commission's misunderstanding.  The court also rejected MG&E's arguments that total knee replacement surgery should be treated differently because there is allegedly no cumulative effect of prior knee surgery to a knee that is totally replaced, that "stacking" results in an award greater than 100% of disability, and that "stacking" injects consideration of pain and suffering into worker's compensation.  The court explained that DaimlerChrysler  has already held that "stacking" is appropriate regardless of cumulative effect, regardless of the actual percentage of medical disability, and regardless of pain and suffering.  A petition for review to the supreme court is pending.  

 May 25, 2011  In Rock Tenn Company and Lumbermens  Mutual Casualty Company v. LIRC and Wasmund, 2011 WI App 93, __ Wis. 2d __, 799 N.W.2d 904, the Court of Appeals held that the commission reasonably interpreted Wis. Stat. § 102.18(1)(b)--the statute allowing prospective awards of medical treatment--to apply retroactively to a work-related injury a worker  suffered before the effective date of the statute.  In affirming the commission’s decision, the court held the statute did not change the employer’s (Rock Tenn) liability for prospective treatment expenses, it only moved the date the expenses had to be paid from posttreatment to pretreatment. Further, the retroactive application of the statute did not violate the due process rights of Rock Tenn because the payment date of treatment benefits is not a substantive, fixed right.

 

April 26, 2011 --  In Earnest Ellis v. DOA and LIRC, 2011 WI App 67, 333 Wis. 2d 228, 800 N.W.2d 6, the Court of Appeals addressed the “odd lot” doctrine, affirming the commission’s decision that Ellis had failed to establish a prima facie case of permanent total disability under the doctrine.  The court noted that the inquiry in such a case is whether the employee has stated facts which, “if they remain uncontradicted by the opposing party’s affidavits, resolve all factual issues in [his] favor.”  If the employee fails to make such a showing, the court held, the odd lot doctrine analysis ends.   After reviewing all of the evidence Ellis submitted, the court agreed with the commission that Ellis had not established a prima facie case of permanent total disability on an odd-lot basis. 

 

July 12, 2011 -- 2010 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2010, are now available at this website.

 

May 18, 2011 -- In a decision recommended for publication, the Court of Appeals today upheld a LIRC decision that a federal court ruling that a complaint filed with the EEOC was untimely, has issue preclusion effect in proceedings at the ERD under the Wisconsin Fair Employment Act.

After she was demoted in March, 2003, Joyce Aldrich went to the EEOC.  She completed an "intake questionnaire" there, but did not actually file a charge of discrimination about the demotion until February 2004, which was more than 300 days after her demotion.  The EEOC dismissed Aldrich's charge, and she filed an action in federal court, alleging discriminatory demotion, and also alleging that she had quit her job in January 2004 and that this had been a constructive discharge.  The court granted summary judgment to Best Buy on the grounds that the charge as to the demotion was untimely, and that the charge had not included anything about the alleged constructive discharge.  Aldrich did not appeal the federal court decision, but instead requested the Wisconsin ERD to investigate her complaint under the Wisconsin Fair Employment Act.  After an initial round of decisions involving the question of whether claim preclusion barred the relitigation of whether Aldrich's complaint was timely (see Aldrich v. LIRC and Best Buy,  2008 WI App 63, 310 Wis. 2d 796, 751 N.W.2d 866),  LIRC's decision of May 21, 2009 held that issue preclusion required the conclusion that Aldrich's claims had to be dismissed as untimely. 

In its decision today, Aldrich v. LIRC and Best Buy  (No. 2010AP1785, filed May 18, 2011), the Court of Appeals affirmed LIRC's decision. Under rules of the Equal Rights Division, a discrimination charge filed with the EEOC is deemed to be also filed with the ERD as of the date it is received by the EEOC.  Here, the EEOC determined that the submission of the  "intake questionnaire" did not constitute filing of a charge, and that the charge was not filed there until February, 2004, and that EEOC ruling was affirmed by the federal court. The Court of Appeals held that LIRC reasonably decided that issue preclusion applied to give that ruling preclusive effect.

 

March 16, 2011 -- In City of Kenosha, v. LIRC and Charles Leipzig, Jr., 2011 WI App 51, 332 Wis. 2d 448, 797 N.W.2d 885, the Court of Appeals today upheld a commission decision finding that Mr. Leipzig, fire captain employed by the city, sustained a compensable injury while playing basketball at a park adjoining his fire station while on active duty on a 24-hour shift.

The City maintained on appeal that because Mr. Leipzig was not receiving additional compensation for participating in a physical well-being activity, the “well-being activity exclusion” found in Wis. Stat. § 102.03(1)(c)3 prevented Mr. Leipzig him from receiving worker’s compensation benefits.   The Court of Appeals rejected that argument, and found that it was sufficient for the purposes of the statute that, at the time of his injury Mr. Leipzig was receiving compensation to “stand ready” at the fire station.  The court also rejected the City’s interpretation because it “produces byzantine inquiries and bizarre results.”

 The Court of Appeals decision has been recommended for publication.

 

February 23, 2011 -- In Oshkosh Corporation and Lumbermens Mutual Casualty Company c/o Kemper Services Company-Broadspire, v. LIRC and Daniel L. Nuetzel, 2011 WI App 42, 332 Wis. 2d 261, 796 N.W.2d 217, the Court of Appeals today affirmed a commission decision holding that Mr. Nuetzel was entitled to vocational rehabilitation benefits despite having been returned to work after the injury, then discharged for alleged misconduct.

In affirming the commission’s decision, the Court of Appeals held that nothing in Wis. Stat. § 102.61(1g) or the Worker’s Compensation Act provides that an injured employee can be denied vocational rehabilitation benefits when he is offered suitable employment after his injury and is subsequently fired for just cause.  On this point, the Court noted two prior consistent LIRC decisions allowing compensation under similar circumstances, as well as the supreme court’s discussion regarding termination of TTD in Brakebush Bros., Inc. v. LIRC, 210 Wis. 2d 623, 635, 563 N.W.2d 512 (1997).  The Court of Appeals also held that "[i]t is the injury sustained by the employee and not the employee’s acts that underlie the principles in § 102.61(1g)."

 The Court of Appeals decision has been recommended for publication.

 

November 30, 2010---In Aurora Consolidated Health Care & Sentry Ins. v. LIRC & Jeffrey Schaefer, 2010 WI App 173, 330 Wis. 2d 804, 794 N.W.2d 520, the court majority today affirmed LIRC's finding of PTD; affirmed LIRC's interpretation of Wis. Stat. 102.17(1)(g), allowing admission of an independent medical opinion without cross-examination of the independent physician; and affirmed that the denial of cross-examination in this context is not a violation of due process.

LIRC exercised its discretionary authority under Wis. Stat. 102.18(3), to order the department to obtain an independent medical opinion addressing Schaefer's claim for PTD. The department implemented LIRC's order through its authority found in Wis. Stat. 102.17(1)(g). After the opinion had been provided by Dr. Ebert, LIRC ordered the department to obtain a clarifying opinion from him, which he provided. The parties were allowed to submit medical and vocational opinions in response to Dr. Ebert's opinions, and respondents submitted the latter. Respondents then asked LIRC to order a hearing at which it could cross-examine Dr. Ebert, or in the alternative, order Dr. Ebert to respond to several more written interrogatories. LIRC denied both requests, reviewed the evidence, and found that Schaefer had presented a prima facie case for PTD that had not been rebutted by respondents.

The court majority noted that Wis. Stat. 102.17(1)(g), which provides that the parties shall have the opportunity to "rebut" the written independent medical report, makes no provision for cross-examination of the independent physician. Respondents argued that the right to cross-examine exists because Wis. Stat. 102.17(1)(d), provides for cross-examination in order to allow submission of medical reports as prima facie evidence. The court responded that this statute is inapplicable because it addresses evidence "presented by a party," and not all evidence provided in worker's compensation proceedings must be prima facie evidence. Also, respondents' argument is undercut by the fact that the right to cross-examine is specifically provided in Wis. Stat. 102.17(1)(d), but not in Wis. Stat. 102.17(1)(g). Furthermore, all the elements of due process were satisfied. Respondents were timely notified of Schaefer's claim for PTD, they were given ample time and opportunity to respond to Dr. Ebert's opinion with medical and vocational evidence, and they were heard by counsel. The court stated: "...cross-examination is not the only way to ensure that due process has been satisfied."

Respondents also asserted that Dr. Ebert's opinion had not been expressed to the appropriate degree of medical probability. The court upheld LIRC's rejection of this assertion, noting that no particular words of art are necessary to remove an opinion from the realm of conjecture, and the test is whether the physician's words "...may be reasonably interpreted as demonstrating he or she was expressing an expert medical opinion."

Judge Fine dissented, arguing that the right to "rebut" the independent medical opinion should not be read restrictively, and that the right to cross-examination is too crucial to be excluded.

 

November 15, 2010 -- The 2010 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 June, 2010.

 

October 19, 2010--In County of Barron & Wis. County Mutual Ins. Corp. v. LIRC & Darlene Cobb, 2010 WI App 149, 330 Wis. 2d 203, 792 N.W.2d 584, the court of appeals today affirmed LIRC's decision that a personal care provider (Cobb), who provided in-home care to a quadriplegic (Budlowski) in conjunction with a state and federally funded social services program administered by the County, was an employee of the County for worker's compensation purposes.  Barron County argued that it was not Cobb's employer under the primary test for an employer-employee relationship found in Kress Packing, 61 Wis. 2d at 177.  That test asks whether the alleged employer has the right to control the details of the work.  LIRC found that while Budlowski exercised control over certain details of the work, the primary right to control was with Barron County, making it Cobb's employer.  The court held that historically, LIRC has properly analyzed the "fact specific" Kress Packing test as the circumstances of each individual case demand.  Barron County's assertion that LIRC has been inconsistent in applying the test is rejected, and LIRC's determination is entitled to great weight.

 The court also agreed with LIRC's finding that it is unfortunate that counties are left to fend for themselves in providing worker's compensation insurance for this in-home care, because state and federal funding make no provision for such insurance.  However, this is a policy matter, and from a legal perspective in this caseBarron County was Cobb's employer.  

 

October 5, 2010--In Paul D. LaBeree v. Wausau Insurance Companies, 2010 WI App 148, 330 Wis. 2d 101, 793 N.W.2d 77, the court of appeals today reversed the commission’s decision finding that that the applicant, whose medical care is paid for by his employer’s worker’s compensation insurer following a work injury, must demonstrate that his in-home care instead of nursing home care based was reasonable and necessary under Wis. Stat. § 102.42, notwithstanding a circuit court order adopting a community integration plan under Wis. Stat. chs. 54, 55.  The court of appeals held that based on the limited authority granted to the Department of Workforce Development in Wis. Stat. ch. 102, and Wis Stat. ch. 55’s clear legislative intent to guarantee an individual subject to a protective placement order the maximum liberty possible, the circuit court’s determination of the least restrictive placement for such an individual is not subject to review by the Department.  Rather, the Department may determine only whether the medical expenses associated with the individual’s placement are compensable under Wis. Stat .ch. 102.

Wausau Insurance has filed a petition for review with the supreme court.

 

September 14, 2010---The Supreme Court today accepted review in DeBoer Transportation v. Swenson and LIRC 2010 WI App 115, __ Wis. 2d, __, __ N.W.2d __ , in which the court of appeals held that the commission erred in concluding that an employer failed to show “reasonable cause” for its refusal to rehire an injured worker, as required by Wis. Stat. § 102.35(3). 

 

August 25, 2010---In Pick 'N Save Roundy's, et.al. v. LIRC & Jill Lucchesi, Appeal no. 2009AP2594 (Wis. Ct. App. Dist. IV), (recommended for publication), the court unanimously affirmed the commission's finding that Lucchesi sustained compensable bilateral carpal tunnel syndrome after being asked by the employer to exceed her physical restrictions; and that her acquiescence to the employer's request did not constitute an intentionally self-inflicted injury, or an unreasonable refusal or neglect to submit to reasonable medical treatment.

Lucchesi began working for the employer as a cake decorator in 1996, and began experiencing bilateral wrist symptoms in 2000.  She underwent bilateral carpal tunnel surgery in 2001, and her physician  hereafter assessed permanent work restrictions that included "no cake decorating."  Lucchesi went back to work as a bakery clerk, but in early 2005 acceded to the employer's request to fill in as a cake decorator until late in 2005.  The employer asked her to resume cake decorating duties in late 2006, which she performed until experiencing renewed bilateral wrist symptoms in early 2007.  Bilateral carpal tunnel surgery was again performed in 2007, resulting in permanent partial disability.  Respondents disputed the ALJ's and the commission's finding of compensable bilateral carpal tunnel syndrome, primarily on the basis that Lucchesi's agreement to exceed her work restrictions constituted an intentionally self-inflicted injury pursuant to Wis. Stat. 102.03(1)(d).  The court held that Lucchesi's poor judgment in exceeding her restrictions did not preclude recovery, especially given the fact that the employer knew of the cake decorating restriction but asked her to ignore it.

 Respondents also argued that Lucchesi's actions constituted a refusal or neglect to submit to reasonable medical treatment, pursuant to Wis. Stat. 102.42(6).  The court affirmed the commission's "implicit" factual finding that Lucchesi's actions did not violate the statute, with the court reiterating the fact that the  employer asked her to violate the medical restriction.

 

July 29, 2010--In Cargill Feed Division v. LIRC & Charles Renz, Appeal no. 2009AP1877 (Wis. Ct. App., July 29, 2010) (recommended for publication), the majority today set aside the commission's decision finding Renz permanently and totally disabled under the "odd lot" doctrine of Balczewski v. DILHR, 76 Wis. 2d 487, 495, 251 N.W.2d 794 (1979). The court remanded the case to the commission for redetermination consistent with the majority holding.

The commission affirmed the ALJ's finding that after injuring his lower back at work, Renz had presented a  prima facie case for permanent total disability,and the employer, Cargill, had failed to successfully rebut that prima facie case.  The ALJ and the commission both noted that in compiling its rebuttal job survey, Cargill had failed to inform the prospective employers of Renz' age and physical limitations.  The commission stated in its memorandum opinion that prospective employers should be made aware of all relevant facts concerning the injured worker, including age and physical limitations, and that it would be preferable for employers to refer the injured worker to employers with jobs actually available for that worker. 

The majority held that since the "odd lot" doctrine is a judge-made doctrine, no deference was due the commission's decision.  It further held that while there was agreement that a prima facie case for permanent total disability had been presented, the commission erred by expanding the employer's burden on rebuttal.  The expansions identified by the court were to require Cargill:  (1) to inform prospective employers of Renz' age and physical limitations; and (2) to refer Renz to employers with jobs actually available.  The court held that employers like Cargill are not required to "provide" any information to prospective employers; rather, they need only "obtain" information from prospective employers about the particular job requirements.  The court remanded for the commission to readjudicate the claim without consideration of the above two "requirements."

The dissent disagreed that either of the disputed "requirements" actually expands an employer's burden in rebutting the prima facie case.  The commission and the ALJ merely recognized in their findings that it is difficult for an employer to rebut the prima facie case, and the administrative findings illustrated legitimate reasons for why Cargill's case had been unsuccessful.  Regardless of the commission's findings regarding "providing" information to prospective employers, the facts demonstrate that Cargill did fail to rebut the prima facie case, and the majority ignores this central fact.  Furthermore, the dissent agrees with the commission that the age of the injured worker is a relevant factor that must be included in a valid job survey.

 

July 8, 2010 -- In a 4-3 decision issued today in Society Insurance v. LIRC, et al., 2010 WI 68, __ Wis. 2d, __, __ N.W.2d __, the Wisconsin Supreme Court concluded that the retroactive application of Wis. Stat. §§ 102.17(4) and 102.66(1), as amended by 2006 Wisconsin Act 172, effective April 1, 2006, is unconstitutional, as applied to the appealing insurer (Society).  The Court reversed the commission’s decision in the case.

Under Wis. Stat. § 102.17(4), there is no statute of limitations for certain specified traumatic injuries.   Prior to the amendment of Wis. Stat. § 102.17(4) by 2006 Wis. Act. 172, benefits and treatment expenses coming due after 12 years from the date of the injury, death or last payment of compensation were paid by the Work Injury Supplemental Benefits Fund (the Fund).  However, the Act shifted the burden of payment of benefits or treatment expense becoming due after 12 years from the date of the injury, death or last payment of compensation from the Fund to the employer or insurer liable for the injury.

 By the Act’s terms, these changes first applied to benefits or treatment expenses that are payable on the effective date of this subsection, regardless of the date of injury. 2005 Wis. Act 172, Section 74.    Society argued that the changes could not be applied retroactively to injuries occurring before the Act’s effective date, as doing so would impair contracts, disturb vested rights, and violate due process.  The commission affirmed the ALJ’s decision holding Society (not the Fund) liable under the Wis. Stat. § 102.17(4) as amended.  The commission noted it has no authority to address the constitutionality of statutes it enforces, McManus v. DOR, 155 Wis. 2d 450, 454 (Ct. App. 1990), and must interpret the statutes as written. 

 The majority of the Supreme Court concluded that the retroactive application of Wis. Stat. §§ 102.17(4) and 102.66(1), is unconstitutional as applied to Society for two reasons:  (1) it violates Society's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution; and (2) it substantially impairs Society's contractual obligation in violation of Article I, Section 10 of the United States Constitution and Article I, Section 12 of the Wisconsin Constitution.

The dissenting justices would have remanded this case to the Commission for an evidentiary hearing regarding the effect of the retroactive legislation. 

 

July 8, 2010 -- The Court of Appeal ruled today that, in light of the Unemployment Insurance Act's stated purpose, the commission's decision to treat courier drivers as independent contractors was not reasonable or consistent with the purpose of the provisions of the statute and administrative code.  Department of Workforce Development v. LIRC and Dunham Express Corp., 2010 WI App 123, ___ Wis. 2d ___, ___ N.W.2d ___  .

In reversing and finding that the courier drivers "employees" for purposes of unemployment insurance contributions, the court found that the trucker contract operator exception did not apply. Specifically, the court disagreed with the commission's interpretation of the meaning of "routes" and "stops" finding that the drivers did not determine the routes or stops made during a haul, that type of equipment encompasses color and logo, and the uniform, decal and requirement to lock vehicles constituted work rules and policies that drivers were to follow.

 


"Old news" ( older entries in "What's New at LIRC") --

 

 

May 24, 2010 -- 2009 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2009, are now available at this website.

 

March 25, 2010 -- The Court of Appeals ruled today that the commission erred in concluding that an employer failed to show “reasonable cause” for its refusal to rehire an injured worker, as required by Wis. Stat. § 102.35(3).  DeBoer Transportation v. Swenson and LIRC (appeal no. 2009 AP 564, Mar. 25, 2010) (recommended for publication).

The injured worker, a truck driver, was required to complete a “check ride” as part of a reorientation following a work injury.  The worker asked to have his check-ride done locally so that he could still be home to take care of his father. The employer refused because its policy required the worker to have the check-ride and because the employer had never before allowed any exceptions to this policy.  The worker never returned to work.  In its 2-1 decision, the commission affirmed the decision of an ALJ who found the employer unreasonably refused to rehire the worker by refusing to accommodate his request.

In reversing the commission, the court of appeals (also in a 2-1 decision) noted that the burden of proof was on the employer to show “reasonable cause” for its refusal to rehire, which may be met with proof of a valid business reason for its action.  The court concluded, however, that “the reasonable cause standard in Wis. Stat. § 102.35(3) does not contemplate requiring employers to either deviate from a facially reasonable and uniformly applied policy, or explain why it would be burdensome to do so, when a returning employee requests the deviation to accommodate a non-work and non-injury-related personal need.”

 

October 14, 2009 -- The Court of Appeals today certified Society Insurance v. LIRC, appeal no. 2008AP003135, to the Supreme Court for review and determination.  The case involves the retroactive application of Wis. Stat. § 102.17(4) as amended by 2005 Wis. Act 172.  As amended, the statute shifts liability for certain traumatic injury claims from the Work Injury Supplemental Benefit Fund to self-insured employers or WC insurers.  Noting that the language of the Act made it clear the legislature intended the change to apply retroactively, the commission’s decision affirmed an ALJ’s decision holding a WC insurer liable for expenses related to a 1982 injury. 

 On judicial appeal, the circuit court reversed the commission’s decision.  In its certification, the Court of Appeals stated:

“The bottom line is whether the legislature has violated the constitutional rights of employers and their worker’s compensation carriers by retroactively shifting the burden of ongoing disability compensation from the state to the insurer.  It is undisputed that retroactive legislation enjoys a presumption of constitutionality.  Furthermore, case law supports the proposition that a statute of limitations may be applied retroactively.  Here, however, the risk of substantial, unanticipated exposure for worker’s compensation insurers will have a widespread financial impact on Wisconsin employers and insurers alike.  Moreover, the lack of any express legislative public purpose for retroactivity presents a dilemma when balancing competing interests.  Given the potential for significant financial liability to insurers and employers, this case is one of statewide concern and continuing public interest.  [Citations omitted].”

 

October 1, 2009 --  As of October 1, 2009, a number of amendments to LIRC's administrative rules became effective. 

Wis. Admin. Code § LIRC 1.025 (3) was amended to add an exception to the rule on when FAXed petitions for review are deemed filed in fair employment and public accommodations cases.  This exception conforms the commission's rules on this point with those of the Equal Rights Division; see, Wis. Admin. Code §§ 218.25(1)(b), 221.23(1)(b).   Wis. Admin. Code § LIRC 1.025 (3) was amended to update to the preferred form of the URL for the web page at which petitions for commission review may be filed.   Finally,  Wis. Admin. Code § LIRC 2.05 , § LIRC 3.05 , and § LIRC 4.04(1)  were each amended to correctly reflect the applicable rule regarding venue in judicial review actions where the plaintiff or petitioner is a non-resident.

 

August 18, 2009 -- The 2009 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 2008.

 

Special Announcement regarding office hours -- Due to State employee furloughs, the offices of LIRC will be closed for business on:

  • Monday, October 12, 2009 (Columbus Day)
  • Friday, November 27, 2009 (day after Thanksgiving)

Additional furlough day closings will be announced in the future.

 

July 21, 2009 --  The Wisconsin Supreme Court issued a decision today in a case presenting the issue of whether the Free Exercise Clauses of the federal and state constitutions precluded DWD and LIRC from exercising jurisdiction over an age discrimination complaint brought under the Wisconsin Fair Employment Act by a Catholic school first grade teacher.

The answer to this issue turned upon whether the position was “ministerial” or “ecclesiastical” in nature because such a position is constitutionally exempt from state regulation.  Applying a “primary duties” test used by courts nationwide, DWD, LIRC, the circuit court, and the court of appeals had all decided that the teacher’s position was not “ministerial” or “ecclesiastical” and that DWD and LIRC therefore could exercise jurisdiction over her age discrimination complaint.  In a 4-3 decision, the Supreme Court reversed.  Coulee Catholic Schools v. LIRC & Ostlund, 2009 WI 88, __Wis. 2d__, __N.W.2d__.

Writing for the majority, Justice Gableman rejected the “primary duties” test and adopted instead a “functional analysis” test. Under that test, the first issue is whether an organization has a fundamentally religious mission. If so, the second issue is how important or closely linked is the employee’s position to the fundamental mission of the organization. The majority emphasized that the “functional approach” test involves significantly less intrusion into the affairs of religious organizations and envisages a more limited role for courts in determining whether positions or activities are religious.

Justice Crooks, joined by Justice Bradley and Chief Justice Abrahamson, dissented. Applying the “primary duties” test, Justice Crooks concluded that the ministerial or ecclesiastical exception properly overrides state jurisdiction over an employee’s age discrimination complaint only when the employee’s position is “quintessentially religious.” Justice Crooks emphasized that the ministerial or ecclesiastical exception is designed to remain just that – an exception – reserved for positions of spiritual leadership. Justice Crooks predicted that the majority’s new “functional approach” test would impermissibly broaden the ministerial or ecclesiastical exception.

 

May 6, 2009 -- 2008 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2008, are now available at this website.

 

February 10, 2009 -- The Court of Appeals (Dist. III) today upheld a December 2007 commission decision that rejected Schreiber Foods' argument that because in January 2006, it had rehired Gregory Skerven at employment paying greater than 85 percent of his pre-injury wage (Wis. Stat. § 102.44 (6)(a)), it could stop paying on a 65 percent loss of earning capacity (LOEC) award that had been awarded on a final basis in an unappealed February 2005 commission decision. Schreiber Foods, Inc. v. LIRC, 2008 WI App __, __Wis. 2d __, __N.W.2d __ (recommended for publication)

Schreiber first asserted that the 2005 commission decision was left interlocutory with regard to the issue of LOEC, and therefore that issue could be revisited. The Court dismissed this argument, explaining that the commission specifically made its 2007 decision final with respect to the issue of LOEC. Schreiber next argued that Wis. Stat. §102.44(6)(a), does not distinguish between an "intitial claim" and a "subsequent claim," when providing that workers rehired to 85 percent of their pre-injury wage can only recover the permancy attributable to their physical limitations, without regard to LOEC. The Court also rejected this argument, noting that the statute refers to workers claiming compensation, not workers like Skerven who are receiving compensation. The only statutes allowing reopening of a final award for permanent partial disability are Wis. Stat. § 102.18(3), giving the department 21 days after a decision to reopen it, and 102.18(4), giving the commission up to one year to reopen. Neither statute is applicable to Schreiber's request to reopen. Finally, Schreiber argued that Wis. Stat. § 102.18(1)(b), which allows the department the discretion to modify awards after a hearing, is applicable to its request. However, that statute is only applicable when a claim is "pending final determination." Skerven's award for LOEC was finally determined in the 2005 commission order, almost two years before Schreiber sought to reopen it.

 

January  23, 2009-- The Supreme Court 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, 2009 WI  9, __ Wis.2d__, 759 N.W.2d 571.

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 affect her potential employability and wages.  LIRC affirmed the ALJ’s disfigurement 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 found that LIRC's decisions in Spence, Jorgensen, and the current case apply Wis. Stat. § 102.56(1) inconsistently to very similar factual situations, and that LIRC’s decisions provided no real guidance.  It therefore gave no deference to LIRC’s interpretation of the statute in this case.  However, the Court also observed that there is little difference between due weight deference and no deference, since both situations require the Court to construe the statute itself. 

The Court then concluded that the plain meaning of “disfigurement” encompasses an impairment that significantly affects the appearance of a person. The Court went on to hold that nothing inherent in the plain meaning of disfigurement supported an interpretation of the term as limited to visible burns, scars and amputations. The Court concluded that Graham's severe limp and foot drag, in combination with the ALJ findings that "her legs looked imperfect and asymmetrical," constitute a disfigurement under the plain meaning of the term.  The Court went on to conclude that the additional requirements of Wis. Stat. § 102.56(1)--that the disfigurement occasion potential wage loss, that it occur on an area of the body that is exposed during the normal course of employment, and that its appearance, location, and likelihood of exposure be taken into account--were all met.  However, stating that a limp is merely a motion, the Court held that not every limp will satisfy the requirement that disfigurement occur on an area of the body exposed during the normal course of employment.

Chief Justice Abrahamson and Justice Bradley concurred, questioning the majority’s analysis of the issue of whether the limp occurred on an area of the body that is exposed in the normal course of employment and the majority’s review of statutory history in analyzing the plain meaning of Wis. Stat. § 102.56(1).

 

November 26, 2008 -- In a decision issued today, the Court of Appeals upheld a LIRC decision that certain individuals performing services for Gary Gilbert Construction, a home-building business, did so as its employees in employment covered under Wisconsin's UC law.  The Court first held, applying "due weight" deference, that LIRC had correctly found that the work was Wisconsin "employment" within the meaning of Wis. Stat. § 108.02(15), because it satisfied the criteria that the services were "directed and controlled" from Gilbert's business office in Wisconsin.  The Court also held, applying "great weight" deference, that LIRC had correctly determined that the individuals performed their services as "employees" within the meaning of Wis. Stat. § 108.02(12)(b) and (bm), such that Gilbert had tax liability for them.

The court's decision, Gary Gilbert v. LIRC and DWD, 2008 WI App ___, __ Wis. 2d __, 762 N.W.2d. 761, has been recommended for publication.

 

September 17, 2008 -- The Wisconsin Supreme Court has granted a petition for review of the decision of the Court of Appeals in Coulee Catholic Schools v. LIRC and Ostlund, 2008 WI App 68, 312 Wis. 2d 331, 752 N.W.2d 342.   The Court of Appeals' decision had affirmed LIRC's decision upholding the authority of the Equal Rights Division to adjudicate a complaint by a Catholic school teacher that her discharge was age discrimination, as against arguments by the school that allowing the complaint to go forward violated its First Amendment rights to free exercise of religion.

The Court of Appeals had initially certified the case to the Supreme Court, but the certification was refused.

 

June 18, 2008-- In a case issued today, Estate of Torres v. Morales, 2008 WI App. 113, 313 Wis. 2d 371, 756 N.W.2d 662, the Court of Appeals held Wisconsin’s Workers Compensation Act applies where an out-of-state employer sends an out-of-state employee to Wisconsin and the employee is injured or killed in Wisconsin in the course of employment.

 Richard Torres and a coworker, who both worked for a company in Texas, traveled together to Wisconsin for a seminar as part of their employment.  Their employer authorized them to rent a car.  Torres was killed in a motor vehicle accident in Wisconsin, while the coworker was driving him from their hotel to the location of the seminar.  Torres’ estate sued his coworker in negligence, but the trial court dismissed on the grounds the Wisconsin Worker’s Compensation Act provides the exclusive remedy.  The Court of Appeals affirmed, stating its view that when an employee is working in this state at the behest of his or her employer, that employee and that employer have an “employment relationship” in this state.   The court further held that that Wisconsin’s worker’s compensation jurisprudence clearly recognizes that an in-state injury in the course of employment will give rise to coverage under the Act.   

The decision in Estate of Torres has been ordered published.

 

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 1st 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 1st 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, 312 Wis. 2d 331, 752 N.W.2d 342.

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, 306 Wis. 2d 830, 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, 310Wis. 2d 796, 751 N.W.2d 866, 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,  309 Wis.2d 470, 750 N.W.2d 485, 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, 306 Wis. 2d 830, 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. 

Wis. Stat. § 102.05(2) states, in relevant part that “[a]ny employer who shall enter into a contract for the insurance of compensation, or against liability therefor, shall be deemed thereby to have elected to accept the provisions of this chapter….”  Lloyd Frank cited Stapleton v. Industrial Commission, 249 Wis. 133, 23 N.W.2d 514 (1946) to argue that because Healy purchased a worker’s compensation policy, he is properly considered an employer.  However, the court of appeals stated that nothing in the Stapleton decision or Wis. Stat. § 102.05(2) implies that individuals who are not also employers may opt into the Worker’s Compensation Act’s jurisdiction.  The court held that the commission properly concluded that because he never had individuals in his service as employees—and does not otherwise fulfill the statutory definition of an employer—Healy was not an employer, the worker’s compensation policy notwithstanding, and thus not excluded from the definition of employee under Wis. Stat. §  102.07(8m).

 

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.

After Wendy Ostland was told she would be laid off from her job as an elementary school teacher for the Roman Catholic Diocese of La Crosse as part of a reduction in force, she filed a complaint alleging that her layoff was discrimination because of her age (53) in violation of the Wisconsin Fair Employment Act.  The Diocese asserted in response that Ostlund had been chosen for layoff because she did not have a degree in elementary education or certification as a Grade 1 elementary school teacher.   The Equal Rights Division made an initial determination that there was not probable cause to believe age discrimination had occurred.

Objecting to proceeding further to a hearing before an ALJ, the Diocese argued that the Equal Rights Division was precluded from acting in the matter on constitutional religious protection grounds. After a hearing limited to this jurisdictional issue, an ALJ concluded that Ostlund's teaching position was not a "ministerial" one and that the administrative adjudication of the complaint would not violate the Diocese's First Amendment rights.  LIRC's decision affirmed the ALJ and ordered the matter to hearing was then appealed by the Diocese. The Diocese appealed and, after the Circuit Court affirmed LIRC, the Diocese appealed further to the District IV Court of Appeals. It argued that Ostlund's position was "ministerial" in that, in its view, the primary mission of a teacher in a Catholic school system is teaching the Catholic faith.

In its Certification issued on October 18, 2007, the Court of Appeals recognized that the controlling authority was Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995), but it concluded that the test adopted in Jocz was "insufficient" to resolve the case.  In Jocz, the Court of Appeals held that if an employee’s "primary duties" consisted of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, the employee's position should be considered “ministerial” or “ecclesiastical”.  In its Certification, the Court of Appeals suggested that it was unclear whether or to what extent Jocz permitted consideration of a religious institution's proffered religious justification-- and that assuming it did not, the question arose whether this State should still follow Jocz in light of more recent cases from federal courts which seem to take a broader approach. 

 

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 Geen2007 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. 

In its decision, the Court of Appeals affirmed the circuit court's dismissal of Kimberly's appeal, concluding that an agency decision that denies a motion to dismiss and requires a hearing on the merits is not an administrative decision within the meaning of the statute because the party seeking review does not have substantial interests that have been adversely affected.   The court reasoned that while time and expense might be saved by an early decision that LIRC had erred, this was outweighed by the resultant delay that would accompany review of agency determinations and the disruption of the agency’s orderly process of adjudication in reaching its ultimate determination. The court also reasoned that LIRC did not conclusively determine Kimberly's further legal rights but simply remanded the matter for further review on the merits, in which Kimberly may ultimately prevail, and that this opportunity for success on the merits supports the conclusion that LIRC's decision was interlocutory and not final.

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 Doерkе-Κlinе, for excessive absences.  Doерkе-Κlinе filed a complaint alleging disability discrimination, asserting that she had been discharged because of her asthma.  LIRC's decision concluded that Doерkе-Κlinе 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, Doерkе-Κlinе 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 Doерkе-Κlinе 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 Doерkе-Κlinе's claim of disability, the Court of Appeals upheld the commission.

The Court of Appeals' decision, Doерkе-Κlinе 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://dwd.wisconsin.gov/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).

 

May 10, 2004 -- There is a new chairman of the commission: the members of the commission have elected commissioner James T. Flynn chairman of the commission, effective May 10, 2004.

 

March 26, 2004 -- 2003 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2003, are now available at this website.

 

January 23, 2004 -- Fresh on the heels of last summer's Crystal Lake Cheese Factory decision concerning disability discrimination and the scope of the duty of reasonable accommodation (see below),  the Wisconsin Supreme Court has now granted a petition for review in yet another case involving those issues.

The case, Hutchinson Technology v. LIRC and Roytek, No. 02-3328,  involves Susan Roytek, who was a production employee for Hutchinson Technology 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.

In an order announced on January 23, the Court granted Hutchinson's petition for review.  The Court also granted a motion by Wisconsin Manufacturers and Commerce for leave to file an amicus brief.  First briefs will be due in late February.

 

December 16, 2003 -- New features have been added to the on-line version of the UI Digest to facilitate research into decisions on the issue of "misconduct" involving drug or alcohol use.

In its original print form, the UI Digest had only one category for misconduct cases involving drugs and alcohol rules and offenses, MC 650 ("Intoxicants").  In the version of the UI Digest that was put on-line at the LIRC website several years ago, this was expanded to two subcategories: MC 651 ("Intoxicants, Drugs; possession/under influence; generally") and MC 652 ("Drug Testing").  However, as the number of misconduct cases involving alcohol and drugs increased (there are now around 110 UI decisions posted at the LIRC website concerning drug/alcohol issues), and as the types of issues presented in these cases grew, these two categories became less useful as a research tool.  

To make it easier to use the UI Digest to find cases concerning specific issues that arise in drug/alcohol cases, a more detailed set of categories has been created for the Digest.   In addition, all of the UI drug and alcohol decision now on line have been "re-coded" using these new categories. This should allow more effective searching for decisions in this area. [View the new digest categories in this area]

Researchers can look for decisions by using a digest category number as a search term at the "Search LIRC UI Decisions" page of this website.  For example, using the search term "MC 651.6", the digest category  for cases involving possession, sale, or use of drugs or alcohol use on the employer's premises, will bring up cases in that area .   Alternatively, researchers can use one of the "programmed search" buttons shown for each Digest category in the on-line version of the UI Digest

 

November 18, 2003 -- In its second action in as many days concerning the bad faith provisions of the Workers Compensation Act, the Wisconsin Supreme Court today reversed a decision of the court of appeals which had concluded that an insurer acted in bad faith when it terminated the worker's benefits, and upheld a commission decision that  the insurer did not act in bad faith when it suspended TTD payments to an injured worker prior to the termination of his healing period.  Kelly Brown v. LIRC, Shultz Sav-o-Racine and Reliance Ins., 2003 WI 142 (#02-1429, Filed Nov. 18, 2003).

Kelly Brown worked as a meat cutter at a grocery store. He suffered a compensable back injury and later re-injured his back. After the second injury, Brown could not return to work. The insurer initially paid TTD, but then suspended payment after investigating allegations that Brown was working and not reporting offset income earned from an external source. The TTD benefits claim went to hearing, and the insurer failed to prove that Brown received any income that would have offset disability payments received during the healing period.  

After winning his claim for TTD benefits, Brown filed a bad faith penalty claim under Wis. Stat. § 102.18(1)(bp), alleging that the insurer acted in bad faith when it terminated his temporary total disability benefits. The supreme court stated that Brown was required to show first that the insurer did not have a reasonable basis to suspend payment on the claim, and second that the insurer knew or recklessly disregarded that there was no reasonable basis for denying benefits. However, if the insurer exercised ordinary care in investigating the facts and law and reasonably concludes that the claim is fairly debatable, the court held the insurer’s actions would not constitute bad faith.

In Brown’s case, the insurer had information from three sources that the applicant was working and presumably earning wages that he had not reported to the insurer (an anonymous tip received by the Wisconsin Worker's Compensation Division fraud hotline; Brown’s supervisor; surveillance showing Brown wearing a business suit during working hours.) The evidence disclosed that the employee had been licensed to sell insurance in Wisconsin since 1994. The insurer did not, however, seek wage or earnings information from the employee until after it suspended benefits.

Noting among other things the number or bad faith cases included on the commission’s website, the supreme court found that the commission has developed extensive experience interpreting bad faith penalty provision thus entitling the commission to great weight deference. Because the commission’s application of the facts to the law in this case was reasonable, affirmance was required under the deference standards even though the court acknowledged it might have reached a different conclusion under a de novo review.

The Supreme Court's decision in this case came just one day after it granted a  petition for review in another case, Cesare Bosco v. LIRC et al.,  involving the bad faith penalty (see below).

 

November 17, 2003 -- The Wisconsin Supreme Court has granted a petition for review from the Court of Appeals' decision in Cesare Bosco v. LIRC, A.T. Polishing and Shelby Insurance Co., 2003 WI App __ ,  __ N.W.2d __   (#03-0662, Filed Sep. 3, 2003).  

In Bosco, the insurer did not contest the finding of PTD but defended by raising an issue as to date of disability, a defense that failed.  During judicial review, the claimant demanded payment from the employer under Wis. Stat. 102.23(5),  and brought a claim for bad faith against the employer when it refused. The  commission's decision  held that the employer could reasonably refuse to pay compensation under the statute and denied the claim for bad faith, but the Court of Appeals disagreed, holding that under Wis. Stat. § 102.23(5) an employer must make payment of benefits during judicial review when the only question is who will pay the benefits.  The Supreme Court has now granted the petition for review filed by the employer and insurer.

 

October 1, 2003 -- The Wisconsin Supreme Court has granted a petition for review in a Workers Compensation case involving the question of what an injured worker must show to make a prima facie case of permanent total disability under the “odd-lot” rule. 

The case grows out of a LIRC decision finding that Ralph Beecher had sustained a disability from an occupational disease arising out of his employment with Outokumpu Copper Kenosha, 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.  In a decision issued earlier this year and ordered published, Beecher v. LIRC, Outokumpu Copper Kenosha and Fremont Indemnity,  2003 WI App 100 ,  663 N.W.2d 316,   the Court of Appeals reversed LIRC's decision, concluding that LIRC had erred in its determination of what the claimant needed to prove in order to establish a prima facie case. [More information . . .

Petitions for review were filed by both LIRC and Outokumpu and were granted by the Supreme Court on October 1, 2003. 

The Wisconsin Supreme Court has not issued a decision involving the “odd-lot” rule since Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977),  over 25 years ago.

 

September 3, 2003 --  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, the court of appeals ruled today.  The court's decision,   Cesare Bosco v. LIRC, A.T. Polishing and Shelby Insurance Co., 2003 WI App __ ,  __ N.W.2d __   (#03-0662, Filed Sep. 3, 2003), has been recommended for publication.

Shelby Insurance Company (Shelby) had defended the underlying benefits claim by asserting the issue in dispute was the date of disability, but did not contest the finding of permanent total disability from occupational exposure, a defense which ultimately did not prevail. 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. 

Concluding that Wis. Stat. § 102.23(5), a statute the commission had not 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.

On review, the court of appeals disagreed, and held that Wis. Stat. § 102.23(5) an employer must make payment of benefits during judicial review when the only question is who will pay the benefits. To hold otherwise, the court observed, would permit an employer or insurer to impugn liability on a phantom insurance company and would be tantamount to permitting employers and insurers to engage in mischief and to avoid paying benefits that they concede are due to the injured employee. The court therefore remanded the case to the commission to redetermine whether A.T. Polishing, Shelby Insurance, or both acted in bad faith.

 

August 13, 2003 -- In a case involving an engaged couple facing conflicting residency requirements, the District II Court of Appeals has upheld a decision that an employee of the City of Waukesha Police Department who knowingly moved out of the City in order to live with her new husband, thus running afoul of the City's residency requirement, voluntarily terminated her employment with the meaning of the Unemployment Compensation Act, and did not have "good cause attributable to the employing unit" for such quitting.

The employee, Cindy Klatt, worked for the Waukesha Police Department since 1991. She was subject to a collectively bargained requirement that she reside within the city.  In 2001 she became engaged to a Racine County Sheriff's Department investigator. He, too, was subject to a residency requirement, that he live within Racine County. He sought an exemption from the policy and was denied.  Klatt was also denied an exemption she sought from the Waukesha policy. She then moved to a residence in Burlington, in Racine County, and the City of Waukesha discharged her.  The Waukesha County Circuit Court subsequently affirmed LIRC's decision that Klatt had voluntarily terminated her employment with the meaning of the Unemployment Compensation Act, without "good cause attributable to the employing unit", with the result that she was ineligible for benefits.

On appeal, the Court of Appeals rejected all of Klatt's arguments.  According "great weight" deference to LIRC's decision, the Court held that Klatt's conduct was inconsistent with the continuation of the employer-employee relationship and was thus a voluntary termination. Klatt's move out of the City was not an attempt to comply with the City's policy, the Court noted, and Klatt did not have a "meritorious justification" for violating the residency requirement because the requirement was constitutionally valid.  Furthermore, there was no "fault" on the part of the employer in applying its policy and declining to extend an exemption to Klatt.

The Court's decision, Klatt v. LIRC and City of Waukesha,  2003 WI App ___, ___ N.W.2d ___  (# 02-3218, Filed Aug. 13, 2003), has been recommended for publication.

 

July 11, 2003 --  In an important decision concerning  the disability discrimination provisions of the Wisconsin Fair Employment Act, the Wisconsin Supreme Court has upheld LIRC's interpretation of the scope of the "reasonable accommodation" requirement in the case of an employee able, with such accommodation, to do most but not all of the duties of the job in question.

The case concerns Susan Catlin, a department head at Crystal Lake Cheese Factory, who became quadriplegic as a result of an automobile accident. After treatment, recovery and rehabilitation, Catlin, then having regained some use of her arms but in a wheelchair, sought to return to work. Crystal Lake refused to take her back, arguing in response to her eventual complaint of disability discrimination that her disability was "reasonably related to [her] ability to adequately undertake the job related responsibilities of [her] employment".  The employer argued that the only accommodation that would allow Catlin to perform all of the duties of her job would be a modification of those job duties -- which it asserted would not be a reasonable accommodation.  LIRC's decision  found discrimination, concluding  that Catlin could perform most of the duties of her position, and that a reasonable accommodation would include some modification of her job duties, unless the employer could show this was a hardship.  LIRC found that the employer had not shown this, and that it had also failed to prove that the physical modifications in the workplace which Catlin needed would be a hardship.  On appeal, the Barron County Circuit Court and the District III Court of Appeals both affirmed LIRC.  In its decision, Crystal Lake Cheese Factory v. LIRC and Catlin,  2003 WI 106, __ N.W.2d __ (No. 02-0815, filed July 11, 2003), the Supreme Court has also affirmed LIRC's decision.

In an opinion authored by Justice Crooks, the Court looked for guidance to three decisions of the Court of Appeals, Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998), McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988), and Frito Lay v. LIRC, 95 Wis. 2d 395, 290 N.W.2d 551 (Ct. App. 1980).  Based on those decisions, and according "great weight" deference to LIRC's interpretation, the Supreme Court held that a reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties, and that a change in job duties may be a reasonable accommodation in a given circumstance. Rejecting the notion that it was necessary to interpret the "reasonable accommodation" requirement as looking to whether an employee could (with accommodation) perform "some", "most" or "all" job responsibilities, the Court stated that the proper emphasis was on the employee's ability to perform her or his job responsibilities adequately, rather than on terms such as "some" or "most" or "all."   On that basis, the Court upheld LIRC's conclusion that a reasonable accommodation, involving modification in job duties and some modifications in the physical environment, would have allowed Catlin to adequately perform her job.  The Court also upheld LIRC's conclusion, that Crystal Lake failed to prove that providing those accommodations would have posed a "hardship" for it.  The burden of proof on that score was on Crystal Lake, the Court noted, and the evidence it introduced at hearing was insufficient to carry that burden.  

Justice Prosser filed a dissenting opinion, which was joined in by Justices Wilcox and Sykes. 

 

June 26, 2003 --  The Court of Appeals held in a decision issued this date that a "professional employer organization", which had contracted with an employer to provide human resource services including responsibility for worker's compensation,  remained liable as the "employer" under the worker’s compensation act with regard to an injury,  despite a subsequent agreement between that organization and its client to terminate their contract retroactively to a date before the injury had occurred.

In January 1999, Epic Staff Management contracted with Steelwind, a steel fabricator, to provide various human resource services including paying wages and taxes, procuring health benefits, and securing and obtaining workers compensation coverage. At the start of contract, Epic hired Steelwind’s workforce. Steelwind provided Epic with funds to issue payroll checks and pay various insurance premiums, together with a fee for Epic's services. The contract automatically renewed on December 31, 1999,  but on January 12, 2000,  Epic and Steelwind agreed to cancel the contract, retroactively to December 31, 1999.   Meanwhile, an employee at Steelwind’s plant, Viveros, was injured on January 10, 2000. A dispute arose as to who was the liable employer, Steelwind (which had procured workers compensation insurance in anticipation of terminating the contract), or Epic.  LIRC's decision  found that Epic was a "temporary help employer" under the Act, and that Epic was the employer on the date of Viveros' injury.    LIRC found Epic liable under Wis. Stat. § 102.03(1), despite the later retroactive cancellation of contract between Epic and Steelwind on January 12.   LIRC commented, moreover, that Epic might be able to rely on its contract termination agreement to obtain contribution in an action in equity or on the contract itself.  Epic and its insurer appealed. 

In its decision,  the Court of Appeals concluded that LIRC’s determination that Epic was liable was consistent with the plain language of Wis. Stat. § 102.03(1), the closely-related case law, and the legislative intent behind the Act.  It concluded too, that Epic’s contrary interpretation based on its fundamental right to contract was not more reasonable than LIRC's interpretation, noting LIRC’s observation that Epic might still have an action in equity or on the contract itself.   Concluding that LIRC's decision was entitled to at least due weight deference, the court therefore affirmed.   However, concluding that LIRC’s additional finding that Epic was a temporary help employer was not necessary to the decision, and that such finding might prevent Epic from obtain the relief in equity or on the contract under Wis. Stat. § 102.04(2m), the court struck the references to "temporary help employer" and Wis. Stat. §§ 102.01(2)(f) and (4m) from LIRC’s decision.

The court's decision, Epic Staff Mgt. and Cont. Casualty v. LIRC, Viveros, Steelwind and  Travelers,  2003 WI App 143 ,  667 N.W.2d 765  (#02-2310, filed Jun. 26, 2003), has been recommended for publication.

 

May 22, 2003 -- Bob Glaser, who was appointed to the commission by Governor Doyle on April 18, has begun serving as a member of the commission as of today.

With the addition of Glaser, the membership of the commission now consists of: 

  • David B. Falstad, Chairman

  • James T. Flynn, Commissioner

  • Robert Glaser, Commissioner

  •  

April 24, 2003 -- The 2003 Edition of the Equal Rights Division's Equal Rights Decision Digest  is now available on-line.  This edition has been updated to include summaries of significant administrative and judicial decisions through 2002.  Note: The printed version of the 2003 ER Decision Digest is at the printer.  When it becomes available, an announcement will be made at this site.

 

April 18, 2003 -- Governor Jim Doyle announced the appointment today of Bob Glaser to the Labor and Industry Review Commission.

"Bob Glaser will make an outstanding addition to the Labor and Industry Review Commission," Governor Doyle said. "He is a strong advocate for the needs and interests of the working men and women of our state. His experience, knowledge, and dedication will be a true benefit to the people of Wisconsin."

Glaser will serve a term to expire March 1, 2009. The Labor and Industry Review Commission has three members.

A veteran of the U.S. Army, Bob Glaser was appointed as Assistant to the Director of District 32 of the U.S. Steelworkers in 1980. In 1995, the Union reorganized and he became the Sub-District Director for the Sub-District covering the State of Wisconsin. He is a member of the Governor’s Labor Management Council, the state AFL-CIO Executive Board, the Wisconsin Development Finance Board, and is a founding member of the Wisconsin Regional Training Partnership Board.

 

April 16, 2003 -- In a decision issued today and recommended for publication, Beecher v. LIRC, Outokumpu Copper Kenosha and Fremont Indemnity (#02-1582, Filed Apr. 16, 2003),  the court of appeals has addressed the question of what an injured worker must show to make a prima facie case of permanent total disability under the “odd-lot” rule.

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.

In reversing LIRC’s finding denying permanent total disability compensation, the court of appeals held that the final report of Beecher’s treating doctor continued the restriction to part-time work. The court also explained that establishing permanent total disability is a two-step process. The first step requires the claimant to make a prima facie case that he or she is permanently and totally disabled. The second step, and the burden, then shifts to the employer to rebut that prima facie showing and demonstrate that some kind of suitable work is regularly and continuously available to the claimant.  However, the court of appeals held that LIRC erred in effectively adding a step to be taken by the worker in cases where he or she is not “obviously unemployable.” 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. 

 

March 11, 2003 -- 2002 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2002, are now available at this website.

 

February 19, 2003 --  The Wisconsin Supreme Court has accepted a petition for review in a disability discrimination case involving the scope of the "reasonable accommodation" requirement.

The case concerns Susan Catlin, a department head in a cheese factory, who became quadriplegic as a result of an automobile accident. After treatment, recovery and rehabilitation, Catlin, then using a wheelchair, sought to return to work. Her employer refused to take her back, arguing in response to her eventual complaint of disability discrimination that she could not perform some of the duties of her job, and that her disability was thus "reasonably related to [her] ability to adequately undertake [her] job related responsibilities". The employer argued that the only accommodation that would allow her to perform all of the duties of her job would be a modification of her job duties -- which it asserted would not be a reasonable accommodation.  LIRC's decision found discrimination, concluding  that Catlin could perform most of the duties of her position, and that a reasonable accommodation would include some modification of her job duties, unless the employer could show this was a hardship.  LIRC found that the employer had not shown this, and that it had also failed to prove that the physical modifications in the workplace which Catlin needed would be a hardship.  The Circuit Court affirmed, and on appeal the District III Court of Appeals also affirmed, in Crystal Lake Cheese Factory v. LIRC and Catlin,  2002 WI App 290, 654 N.W.2d 286.  The Court of Appeals agreed with LIRC's interpretation, that a "reasonable accommodation" may reasonably include some modification of job duties, unless an employer can show that this would create a hardship.   The court also agreed with LIRC that the employer did not prove that certain necessary physical modifications, including building a disabled-accessible bathroom, would be a hardship, where the employer's claim that this would cost $47,000 was supported only by hearsay. On February 19, the Supreme Court announced that it had agreed to hear Crystal Lake's appeal of the Court of Appeals' decision. 

While the Court has issued a number of decisions over the years involving the disability discrimination provisions of the Wisconsin Fair Employment Act, this will be the first time that the Court will be addressing the scope of that law's requirement of "reasonable accommodation" of disabilities.  The first brief of the petitioner, Crystal Lake Cheese Factory, is due in the latter part of March.  A motion for leave to file an amicus brief, filed by Attorney Francis X. Sullivan, has already been granted by the Court.

 

February 14, 2003 -- Governor Jim Doyle announced the appointments today of Jim Flynn and Kim Plache to the Labor Industry Review Commission. Flynn has his own law practice in Milwaukee. Plache is a former State Senator from the 21st Senate District.

"Jim Flynn has broad experience in both government and law. While he was a former state senator and lieutenant governor, he was respected by members of both parties as a thoughtful and effective leader," Doyle said. "Jim Flynn’s integrity and respect for the law will serve him well as a member of LIRC, and I know Jim will not hesitate to remain independent and fulfill his duties in an honest and fair manner."

"Kim Plache has had the benefit of serving on both the Joint Finance Committee and the Joint Audit Committee as a State Senator. In both of these positions, she has demonstrated the ability to absorb and analyze complex state issues in a wide range of subjects," Doyle said. "These experiences will serve her well as she moves into this quasi-judicial position. I am confident that Kim will take a well-balanced, fair-minded approach to her position as Commissioner."

Jim Flynn, 57, is an attorney in his own Milwaukee law practice, James T. Flynn, Attorney at Law. He served as lieutenant governor under former Governor Tony Earl, and was the first lieutenant governor to head a major state agency, the Department of Development (now Department of Commerce). He also served the communities of Wauwatosa, West Allis, West Milwaukee, Greenfield and Hales Corners in the Wisconsin State Senate. He is a 1970 graduate of Marquette University and received a law degree from Marquette University Law School in 1973. Flynn and his wife Jennifer McKenzie-Flynn live in Milwaukee.

Kim Plache, 42, served as a State Senator from the 21st Senate District from June 1996-2002. As a State Senator, she was a member of the Joint Finance Committee, the Joint Audit Committee, and the Labor Committee. She also represented the – Assembly District as a State Representative for six years. She is a member of the Racine County Economic Development Corporation, a Racine Make a Difference Day volunteer, and a volunteer for the Harmony Club, a respite program for community caregivers. She is a 1984 graduate of the University of Wisconsin-Parkside. Plache and her husband Paul Hable live in Racine and have one daughter.

 

February 12, 2003 -- The Court of Appeals has reversed a LIRC decision that a WC insurer did not act in bad faith when it discontinued temporary total disability payments (TTD) to an injured worker.

Kelly Brown suffered a work-related back injury and was receiving TTD. Based on an anonymous call to the WC Division stating that Brown was working full time selling insurance, and a private investigator’s report that Brown had been a licensed insurance agent for 12 years and had been seen dressed in a suit in the middle of a weekday, the insurer discontinued making TTD payments. A hearing was subsequently held on the issue, but the employer and insurer failed to prove that Brown was earning income that would justify the reduction, and additional payment of TTD was ordered. Brown then filed this claim alleging that the insurer had acted in bad faith when it terminated TTD payments. The commission affirmed the ALJ’s finding that the employer had sufficient information to withhold benefits. The commission reasoned that the investigation provided the insurer with a reasonable basis for believing that Mr. Brown was engaging in wage-earning services. Mr. Brown appealed the decision to the circuit court, which affirmed the commission’s decision.

The court of appeals began its analysis with the test previously set forth in Kimberly-Clark Corp. v. LIRC, 138 Wis. 2d 58, 505 N.W.2d 684 (Ct. App. 1987), for determining whether a claim was "fairly debatable" under Wis. Stat. § 102.18(1)(bp) and Wis. Stat. Admin. Code. § DWD 80.70(2). The court noted that Mr. Brown had to demonstrate that the insurer did not have a reasonable basis for denying benefits and that it had knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. Such a determination required examination of whether the claim was properly investigated and if the results of the investigation were subject to reasonable evaluation and review. The court of appeals found that benefits could not be terminated based on the knowledge that Mr. Brown might be working. Rather, in order for the insurer to be entitled to an offset on TTD, it would need information establishing that Mr. Brown was earning a profit during the time he was receiving benefits. The court noted that the insurer had no information indicating that Mr. Brown was earning a profit and that the insurer had not contacted Mr. Brown to request information. The court concluded that the insurer had no reasonable basis for believing it would be entitled to an offset. The court rejected the argument that the February 1 letter was a request for information since, by February 1, the actions constituting bad faith had already occurred. Finally, the court stated that allowing the insurer to terminate benefits and then requiring Mr. Brown to demonstrate he was not earning a profit would improperly shift to Mr. Brown the burden of disproving the insurer’s entitlement to an offset.

The court’s decision, Brown v. LIRC, Schultz Sav-o-Racine, and Reliance Insurance Company, No. 02-1429, 2003 Wisc. App. Lexis 138 (Feb. 12, 2003), has been recommended for publication.

 

October 22, 2002 --  The court of appeals today issued a  decision in a Workers Compensation case addressing the question of when a "date of disability" setting a "date of injury" occurs in cases of occupational disease. At issue was whether employer-required medical examinations for an occupational disease set the "date of disability," when those examinations caused the worker some "wage loss" but the worker did not otherwise miss work until the condition ripened into a physical incapacity to work. LIRC's decision held the employer-required examinations did not establish a date of disability, and instead held the worker’s date of disability occurred when the worker was physically incapacitated from work. It therefore held Virginia Surety -- which had come on the risk only weeks before the applicant’s last day of work with the employer -- liable for the worker’s disability.  LIRC's decision was upheld by the circuit court, and Virginia Surety then appealed to the Court of Appeals.  In  its decision issued today, Virginia Surety and Stainless Foundry v. LIRC et al., (#02-0031, Filed Oct. 22, 2002), which has been recommended for publication,  the Court of Appeals affirmed LIRC's decision. 

Thomas McGaw worked for the Stainless Foundry for over forty years as a grinder exposed to sand and dust before he stopped working to accept a medical leave offered because of his silicosis. During his employment he never missed work time because of the symptoms of his condition, but he did miss work time to undergo medical examinations required by Stainless Foundry to monitor his condition. Relying on language in General Cas. Co. v. LIRC, 165 Wis. 2d 174, 477 N.W.2d 322 (Ct. App. 1991), that a date of disability is conclusively presumed to occur when a worker suffers wage loss due to an occupational disease, Virginia Surety asserted the date of disability occurred with lost work time due to the examinations Stainless Foundry required to monitor McGaw’s condition before Virginia Surety came on the risk.

The court of appeals observed, however, that General Cas. Co., relied on an earlier supreme court decision, Montello Granite Co. v. Industrial Commission, 227 Wis. 170, 278 N.W. 391 (1938). Montello recites the court’s consistent holdings that, to be entitled to  compensation in cases of occupational disease, an employee must show physical incapacity from the disease rendering him incapable of performing his services so that a wage loss results. In McGaw’s case, the Court of Appeals concluded, the commission reasonably distinguished between non-incapacitating symptoms on the one hand and incapacity to work on the other. Applying the great weight deference standard (but noting the same result would be reached under the due weight standard), the court affirmed the commission’s conclusion that the date of disability in McGaw’s case did not occur until McGaw stopped working. The court went on to affirm the commission’s finding that Virginia Surety was liable as the insurer on the risk on the date of disability, notwithstanding Virginia Surety’s argument that employment exposure during its relatively short time at risk did not cause McGaw’s condition. 

October 10, 2002 -- In its second decision this week concerning disability discrimination, the Court of Appeals has explored the interrelationship between the federal Family and Medical Leave Act and the Wisconsin Fair Employment Act's "reasonable accommodation" requirement, as well as the issues presented by "no fault" attendance policies. The decision concerned Douglas Geen, an employee of Stoughton Trailers, who was discharged for accumulating too many "points" under Stoughton Trailers' "no fault" attendance plan.  The final 2 absences were caused by Geen's disability (a migraine condition). He filed a complaint alleging discrimination, and an ALJ agreed that Stoughton Trailers had discriminated, by discharging Geen "because of disability" and by failing to reasonably accommodate his disability.  On appeal, LIRC's decision reversed the ALJ.  LIRC left undecided the question of whether a discharge based on a series of absences the last 2 of which were due to a disability was a discharge "because of disability".  Instead, it resolved the case by concluding that even if the discharge had been "because of disability", Stoughton Trailers had nevertheless offered Geen a reasonable accommodation, which was an option to elect to have the absences handled as federal FMLA leave, in which case they would not have counted under Stoughton's "no fault" attendance policy.  

Geen appealed, and the Dane County Circuit Court reversed LIRC's decision. The Circuit Court concluded that Stoughton Trailers' actions had not constituted a sufficient reasonable accommodation, because it terminated Geen before the end of the 15-day period within which Geen should have been allowed to seek to have his absence qualified as FMLA leave.  The Circuit Court's order remanded the matter and directed that the ALJ's order be implemented.

Stoughton Trailers appealed to the Court of Appeals (LIRC did not join in the appeal or participate in the briefing to the Court of Appeals).  In its decision, Geen v. LIRC and Stoughton Trailers, (#01-2713, Filed Oct. 10, 2002), the District IV Court of Appeals affirmed the Circuit Court's decision.  The Court of Appeals analyzed the facts in light of the federal FMLA, and concluded that Stoughton arguably violated the FMLA by not allowing Geen sufficient time to make his requests for FMLA leave.  If that were the case, it would make the question of whether the discharge had been "because of disability" one that had to be decided.  The Court concluded, however, that it should be LIRC rather than the Court which decided those questions in the first instance.  The Court of Appeals therefore modified the Circuit Court's decision, to provide that instead of directing LIRC to implement the ALJ's order, LIRC was directed to expressly decide the question of whether the discharge had been "because of disability", and to decide if the FMLA affected Stoughton's claim that it offered Geen a reasonable accommodation. 

The Court of Appeals' decision in this case has been recommended for publication.

October 8, 2002 -- In a decision issued today, the Court of Appeals has further explained the scope of the legal requirement for "reasonable accommodation" of disabilities. The decision concerned Susan Catlin, head of a department in a cheese factory, who became a quadriplegic as a result of an automobile accident. After treatment, recovery and rehabilitation, Catlin, then using a wheelchair, sought to return to work. Her employer refused to take her back, arguing in response to her eventual complaint of disability discrimination that she could not perform some of the duties of her job, and that her disability was thus "reasonably related to [her] ability to adequately undertake [her] job related responsibilities". The employer argued that the only accommodation that would allow her to perform all of the duties of her job would be a modification of her job duties -- which it asserted would not be a reasonable accommodation.  Reversing an ALJ who had accepted the employer's arguments, LIRC found discrimination.  It concluded that Catlin could perform most of the duties of her position, and that a reasonable accommodation would include some modification of her job duties, unless the employer could show this was a hardship.  LIRC found that the employer had not shown this, and that it had also failed to prove that the physical modifications in the workplace which Catlin needed would be a hardship.  The Circuit Court affirmed LIRC's decision, and the employer appealed. 

In its decision, Crystal Lake Cheese Factory v. LIRC and Catlin,  (# 02-0815, Filed Oct. 8, 2002), the District III Court of Appeals affirmed LIRC's decision in all respects. Initially the court held that LIRC did not commit any procedural error in reversing certain findings of the ALJ without consulting with him because its disagreement with the ALJ did not involve any issue of witness credibility.  Turning to the issues involving interpretation of the WFEA's provisions concerning disability discrimination, the court, holding that LIRC's interpretation of the "reasonable accommodation" requirement was entitled to "great weight" deference, rejected the employer's argument that it has a defense and need not reach the issue of accommodation of an employee who cannot perform all of the duties of their job.  The court agreed with LIRC's interpretation, that a "reasonable accommodation" may reasonably include some modification of job duties, unless an employer can show that this would create a hardship.   The court also agreed with LIRC that the employer did not prove that certain necessary physical modifications, including building a disabled-accessible bathroom, would be a hardship, where the employer's claim that this would cost $47,000 was supported only by hearsay. 

The Court of Appeals' decision in this case has been recommended for publication.

October 2, 2002 -- The Workers Compensation Act provides that its benefits provide the exclusive remedy for injured employees against their employer. The Act also provides, in § 102.29(6), that  "No employe of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any employer who compensates the temporary help agency for the employe's services". In a decision issued on October 2, 2002, the Court of Appeals has addressed the scope of the provision. 

In this case the plaintiff Kopfhamer, who was an employee of Wisconsin Power and Light, was injured while working at the Kewaunee Nuclear Power Plant, which is jointly owned by Madison Gas and Electric, Wisconsin Public Service Corporation, and WPL, and is operated by WPSC.  An agreement between WPL and WPSC provided that WPL would provide skilled employees to WPSC to help it operate the plant during certain scheduled shutdown periods;  Kopfhamer had been working at the plant pursuant to this agreement.  He sued all three entities for damages.  WPL was dismissed out on summary judgment in trial court, on the grounds that as Knopfhamer's employer it was protected by the "exclusive remedy" provision of the Workers Compensation Act.  WPSC also sought to invoke that protection, claiming it was a party compensating a temporary help agency for a worker's services within the meaning of § 102.29(6), but the trial court held that it was estopped from raising that defense, and WPSC appealed.  

In its decision,  Kopfhamer v. MGE, WPL, and WPSC, (# 01-1384, Filed Oct. 2, 2002), the Court of Appeals reversed the trial court's estoppel ruling, and then directly addressed the argument made by WPSC under the "temporary help agency" provision. Reviewing previous decisions involving the provision (Bauernfeind v. Zell, Gansch v. Nekoosa Papers), the Court of Appeals holds that the "temporary help agency" provision is not limited to businesses that hold themselves out specifically as temporary help agencies. In this case, the agreement between WPL and WPSC for provision of certain skilled employees of WPL to WPSC created a "temporary help agency" arrangement under the Workers Compensation Act.  Therefore, Kopfhamer's exclusive remedy was his claim under the Workers Compensation act against WPL, his employer, and his claim against WPSC was barred. 

The Court of Appeals' decision in this case has been recommended for publication.

July 11, 2002 -- In a decision issued today in an Unemployment Insurance case, the Court of Appeals addressed several procedural issues concerning UI hearings, and also resolved a "misconduct" issue arising out of a workman's dispute with a customer.

The employee, who worked for a floor service company, was discharged after a complaint from a customer to the company's owner. An initial determination found that the employee had engaged in misconduct by not following certain procedures to remove garbage from a worksite, and by arguing with and insulting the customer. The employee appealed, and a hearing was held at which the employee and the employer appeared, both pro se.  During the hearing, the ALJ took testimony from the customer by telephone.  The ALJ eventually ruled against the employee, and on appeal to LIRC this decision was affirmed.

In circuit court, the employee, now represented by counsel, argued that the ALJ had committed error in various procedural respects, including the taking of the customer's testimony by telephone and the consideration of certain evidence, and had denied him procedural due process.  The circuit court reversed LIRC's decision, holding that the ALJ had been biased and that the hearing procedures had been unfair, thus denying due process.  LIRC appealed, arguing that the employee waived his procedural and evidentiary objections; that in any event there were no procedural errors; and that it correctly decided the employee was discharged for misconduct. Today's Court of Appeals decision reverses the circuit court and remands with directions to affirm LIRC's decision.

In its decision, the Court of Appeals first noted the "settled law", that to preserve an issue for judicial review a party must raise it before the administrative agency, and it applied that waiver rule to the employee's failure to object to evidence and procedure at either the hearing or on appeal to LIRC. Furthermore, the court decided that it would not create an exception for situations in which a litigant had appeared pro se, observing: "Allowing claimants and employers to raise issues for the first time in the reviewing court, simply because they proceeded pro se before the agency, would seriously undermine the intended role of the administrative agency as the primary decision maker on unemployment benefits claims".  The court therefore restricted its review of the employee's claims of error to determining whether the hearing violated his right to procedural due process. The court's review of the record and the regulations governing such hearings led it to conclude that the procedures had been fair and unbiased.

Turning to the "misconduct" issue, the court, noting that it would accord "great weight" deference to LIRC's application of the "misconduct" standard, upheld the conclusion of misconduct, which was based on findings that the employee had argued with the customer about the services to be provided, and had then left the worksite, telling the customer to "get out of my face" and calling him an "asshole". The court stated, "LIRC could reasonably decide that the unprovoked use of profane language directed at a customer was not due to inadvertence, ordinary negligence, or a good-faith error in judgment. It also is reasonable to interpret 'the standard of behavior which the employer has a right to expect' from its employees as encompassing the expectation that an employee will not be antagonistic and disrespectful toward a customer. 

The court's decision, Bunker v. LIRC and Anderson, (# 01-3441, Filed Jul. 11, 2002), has been recommended for publication.

July 10, 2002 -- The print version of the 2002 Edition of the Equal Rights Division's Equal Rights Decision Digest is now available.  (The on-line version is also available at this website). This edition has been updated to include summaries of significant administrative and judicial decisions through 2001.  Persons interested in obtaining a copy should contact the Equal Rights Division.

July 3, 2002 -- 2001 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2001, are now available at this website.

June 25, 2002 - In a decision issued today, the Wisconsin Supreme Court has rejected an argument that common-law certiorari should be available to obtain review of a LIRC order which was not otherwise reviewable under Wis. Stat. § 102.23.  

The case arose out of a LIRC decision dated March 5, 1999, which denied workers compensation benefits to an applicant. After business hours on Friday, March 3, 2000, the commission received the applicant’s request to set aside its 1999 order under the "one year statute," Wis. Stat. 102.18(4)(c), based on newly-discovered evidence. The final day of the 1-year period fell on Sunday, March 5, 2000.  On the following day, Monday, March 6, 2000, the commission issued an order stating that the March 5, 1999 order was set aside pending further consideration.   Following such further consideration, the commission on April 22, 2000 then issued another order, remanding the matter for further proceedings.  In that order, the commission noted the applicability to the set-aside order of Wis. Stat. § 990.001(4),  which provides that a statutory period within which an act is to be done is computed by excluding the first day and including the last, and that when the last day falls on a Sunday, the act may be done on the next secular day.

In circuit court, the employer conceded that it had no right to review under Wis. Stat. § 102.23(1)(a), since the commission’s March 6, 2000, order did not "grant or deny compensation". However, the employer argued that the commission lacked authority to act under Wis. Stat. § 102.18(4)(c), because more than one year had elapsed between the date of the initial award on March 5, 1999, and the date of the commission's subsequent remand order on April 22, 2002. The employer contended that common law certiorari should be available in the extraordinary circumstances presented by the case, otherwise the commission could ignore the one-year time limit when it pleased, with no opportunity for judicial review. The commission argued, however, that review under Wis. Stat. § 102.23(1)(a) is exclusive, and prohibits judicial review by certiorari. The circuit court rejected the employer's argument.  The court of appeals certified the case to the supreme court, which accepted the certification.

In its decision, the supreme court affirmed the decision of the circuit court, holding that common law certiorari is not available to obtain review of a LIRC order which is not otherwise reviewable because it does not "grant or deny compensation".  The critical consideration in the court's analysis, was the fact that the challenged order would eventually be reviewable once an order granting or denying compensation was issued in the case. The court explained:

¶ 27. . . We recognize that, in some cases, a party may endure some hardship by having to participate in additional hearings when LIRC erroneously sets aside an order or award granting or denying compensation and remands the case for additional hearings. However, we conclude that the statutory scheme still permits review of the issues in this case in a timely manner, and at the same time, it preserves judicial economy by allowing these issues to be determined only after an order or award granting or denying compensation is issued. 

The court's decision is Vidal and Tork v. LIRC and Guden 2002 WI  72, __ N.W.2d __ (#00-3548, filed June 25, 2002).

May 14, 2002 - The 2002 Edition of the Equal Rights Division's Equal Rights Decision Digest is now available on-line.  This edition has been updated to include summaries of significant administrative and judicial decisions through 2001.  Note: The printed version of the 2002 ER Decision Digest is still at the printer.  When it becomes available, an announcement will be made at this site.

April 16, 2002 - In its 1992 Amsoil decision, the Court of Appeals looked at  the question of whether LIRC, when deciding a WC claim, could take administrative notice of a UI file involving the same employee.  In a decision just issued, Goetsch v. DWD, LIRC, and Ft. James Operating Co., the Court has looked at the converse situation, of whether in a UC case, notice can be taken of a WC file. 

In Goetsch, an employee had been fired for allegedly making false claims about injuries for which she had claimed WC benefits.  A UC ALJ decided that the employee had been untruthful in her claims about her injuries and had thus been discharged for misconduct.  LIRC affirmed this decision.  However, the employee had also filed an application with the WC Division alleging unreasonable refusal to rehire under the WC Act,  and a WC ALJ who heard those allegations issued a decision, after LIRC had affirmed the UC ALJs decision, that the employee had made her claims about her injuries in good faith.  This was directly contrary to what the UC ALJ had found regarding the employee's intent.  Appealing LIRC's decision in the UC case to circuit court, the employee argued that notice should be taken of the WC ALJ's findings, and that they should govern because the WC ALJ was allegedly better equipped to address the issues.  The circuit court rejected this argument.  

In its decision, the Court of Appeals affirmed the circuit court, holding that a WC decision does not bind an ALJ hearing a UC issue or the commission reviewing it.  The Court of Appeals noted that under Wis. Stat. § 108.101, no ALJ decision made under a chapter other than Ch. 108 (the UC Act) is binding on a UC claim, and also that it would have been impossible for the commission to have considered the WC ALJ's decision, since it was issued after LIRC's decision. The Court of Appeals emphasized that each ALJ had jurisdiction over the claims before them, and the processes were independent and should not involve consideration of the findings of the other. Addressing the issue of "administrative notice", the Court noted its holding in Amsoil that the commission should not take "administrative notice" of a UC file when deciding a WC claim, and it observed, 

[t]he legislature did not, either expressly or implicitly, grant the commission the power to take administrative notice of its own files...The commission is limited to the record before the hearing examiner, and it does not have statutory authority to take administrative notice of its own different, though related, files.

The Court's decision (No. 01-2227) has been recommended for publication.

February 21, 2002 -  In a decision involving workplace violence, the Court of Appeals has considered  the significance of provocation to the question of whether an attack on a co-worker is misconduct disqualifying the attacker from eligibility for unemployment insurance. 

One of Jesus Lopez's co-workers had in the past made derogatory comments about Lopez's national origin. When the co-worker made another such comment, Lopez physically assaulted him. Lopez's wife tried to calm Lopez, but he chased after the co-worker in an attempt to further assault him. When  questioned by his employer, Lopez said he would do the same thing again if the situation recurred. He was discharged, and he was subsequently denied unemployment benefits on grounds he had been discharged for misconduct. This denial was upheld by an ALJ, and LIRC's decision affirmed that denial. On appeal, the Dane County Circuit Court affirmed. 

On appeal, Lopez argued that a de novo review standard should be applied because the case presented an issue of first impression, and because LIRC's decision was, he asserted, inconsistent with other decisions it had issued finding provocation to excuse assaults on co-workers. The Court of Appeals rejected this argument, however, concluding that LIRC's general experience interpreting the "misconduct" standard made "great weight" deference appropriate, and that LIRC's decisionmaking in employee assault cases had not been inconsistent.  Applying the "great weight" standard, the court said that while it agreed with Lopez that discriminatory working conditions are a serious matter, LIRC could reasonably decide that Lopez's reactions were not justified and constituted misconduct even though he had been subject to harassing comments by his co-worker.

The court's decision, Lopez v. LIRC and Willow Foods, has been recommended for publication.

February 13, 2002 - The Court of Appeals has issued a decision concerning the coverage of injuries sustained by an employee while going to a medical evaluation required by the employer. 

Ann Hernandez' thumb injury, which she sustained at work, seemed to her treating physician to be healing well. Then her employer's insurer told her to go see its physician for a final evaluation of the injury.  Driving to that appointment, Hernandez was seriously injured in an automobile accident. She sought benefits, and an ALJ granted them over the respondent's objections that the injuries were not covered.  LIRC's decision affirmed the result, holding that Hernandez was performing a service growing out of and incidental to her employment when she was injured. The circuit court affirmed LIRC's decision, and the employer and insurer appealed.

In its February 13 decision,  the Court of Appeals affirmed LIRC's decision.  The Court held that, while LIRC has not previously addressed this precise question and thus was not to be accorded "great weight" deference, "due deference" is appropriate. On the merits, the Court held that LIRC's inference and determination that Hernandez' trip to the doctor was required by the terms of her employment was "eminently reasonable"; thus, the injuries occurred while Hernandez was performing services growing out of and incidental to her employment.  The injuries also "arose out of" Hernandez' employment in that the employer had requested her to submit to the evaluation and she would not have done so absent that request.

The Court's decision, American Mfrs. Mutual and Walgreen v. Hernandez and LIRC, has been recommended for publication. 

January 28, 2002 - Laurie McCallum has begun work as a Commissioner at the Labor and Industry Review Commission as of Monday, January 28, 2002.  Ms. McCallum comes to LIRC from the State Personnel Commission, where she has worked for 19 years. She has also worked as legal counsel to former Governor Lee Dreyfus, and for the State Insurance Commissioner. McCallum is a graduate of Southern Methodist University Law School and the University of Arizona. Ms. McCallum was appointed to LIRC by former Governor Tommy Thompson, and replaces Pamela Anderson, who left LIRC in March 2001. McCallum's appointment is subject to confirmation by the state senate.

December 20, 2001 - The Court of Appeals has upheld a LIRC decision in a Workers Compensation case, that an employer engaged in bad faith and inexcusable delay by withholding taxes from an amount it had previously been ordered to pay  to an employee under Wis. Stat. § 102.35(3) for wrongful refusal to rehire.

In the underlying wrongful refusal to rehire decision, LIRC had ordered the employer to pay the employee almost $32,000. The circuit court affirmed the commission decision, and the employer did not appeal.  However, even though the employer had never argued before the ALJ, LIRC, or the circuit court, that it was entitled to withhold taxes from the amount ordered paid,  the employer tendered a check to the employee in an amount of less than $22,000, explaining that it had deducted payroll taxes.  The employee’s attorney advised the employer of a prior commission decision, Lancour v. Mauer Bakeries, WC Claim No. 84-54115 (LIRC Nov. 20, 1990), which held that an award under Wis. Stat. § 102.35(3) was not subject to federal taxation, but the employer still tendered only the lower amount (less deductions).  The employee then brought claims for bad faith and inexcusable delay.  The ALJ found the employer did not have a reasonable basis for not paying the full amount ordered because it provided no legal authority for its position, because the commission had made its position clear in Lancour, and because the employer had not argued its position on withholding taxes to the commission or circuit court in its previous appeal. The ALJ further found that the employer had knowledge of the lack of a reasonable basis for failing to pay the full amount based on the employee’s attorney’s communication of the commission’s position. LIRC affirmed the ALJ’s decision, concluding that if the employer believed it had a right to withhold taxes from the award it should have appealed the amount of the award. The circuit court then affirmed this decision by LIRC, and the employer appealed.

In its decision on appeal, the court of appeals rejected the employer’s argument that issue was whether the commission properly interpreted federal law when it issued its decision in Lancour. The court stated that the first issue for review was whether the commission’s construction of its prior decision was correct. The court concluded the standard of review was the same as that employed when the meaning of a trial court’s order is in dispute. The court found the commission’s order plainly required the employer to pay the full amount. The court found, under the great weight standard, that the commission’s determinations that the employer engaged in bad faith and inexcusable delay were reasonable. In affirming the finding that the employer had no reasonable basis for not paying the full amount of the award the court pointed to the employer’s failure to seek a modification of the original award, failure to seek clarification of whether it could withhold taxes, and failure to obtain a ruling authorizing withholding. The court also noted that the employer failed to present the commission with any legal authority for its position. Finally, the court found that the commission’s decision that the employer did not have a reasonable basis for withholding payment was reasonable. 

The Court of Appeals' decision, Beverly Enterprises v. LIRC and Lewis-Jones  (#01-0970, filed December 20, 2001), has been recommended for publication.

October 25, 2001 - The District IV Court of Appeals has certified to the Wisconsin Supreme Court an issue of whether common law certiorari is available to review a commission order when the statute provides no right to review that order. Mark Vidal and Jerome Tork et al. v. LIRC et al. (#00-3548, filed October 25, 2001).  

In Vidal, the commission had issued an order on March 5, 1999, denying compensation. After business hours on Friday, March 3, 2000, the commission received the applicant’s request to set aside its 1999 order under the "one year statute," Wis. Stat. 102.18(4)(c), based on newly-discovered evidence. On Monday, March 6, 2000, the commission issued an order stating that the March 5, 1999 order was set aside pending further consideration;  following such further consideration, the commission then issued an order on April 22, 2000, remanding the matter for further proceedings.  In that order, the commission noted the applicability to the set-aside order of Wis. Stat. § 990.001(4),  which provides that a statutory period within which an act is to be done is computed by excluding the first day and including the last, and that when the last day falls on a Sunday, the act may be done on the next secular day.

In circuit court, the employer conceded that it had no right to review under Wis. Stat. § 102.23(1)(a), as the commission’s March 6, 2000, order did not grant or deny compensation. However, the employer argued that the commission lacked authority to act under Wis. Stat. § 102.18(4)(c) because more than one year had elapsed since the date of the initial award. The employer contended that common law certiorari should be available in the extraordinary circumstances presented by the case, otherwise the commission could ignore the one-year time limit when it pleased, with no opportunity for judicial review. The commission argued, however, that review under Wis. Stat. § 102.23(1)(a) is exclusive, and prohibits judicial review by certiorari. The circuit court rejected the employer's argument, and an appeal was filed.

Citing policy considerations as well as arguably conflicting precedents, the court of appeals concluded that the supreme court was the most appropriate forum for the issues raised on review.

September 25, 2001 - A decision issued by the Court of Appeals has clarified that the 12-year statute of limitations for filing a claim for death benefits under the Workers Compensation Act begins to run upon the death of the worker involved, not on the date on which the worker sustained the injury which caused the death. 

The decision involved a worker who sustained malignant mesothelioma as a result of occupational exposure. He last worked in 1983, thus establishing a "date of injury" in that year.  He died of his occupational disease in 1999, and his widow then filed a claim for death benefits. Rejecting the theory that the claim was barred because it had not been brought within 12 years of the decedent's date of injury, LIRC's decision held that the claim was timely because the statute of limitations began to run only upon the worker's death.  Upholding LIRC's decision, the Court of Appeals held that LIRC correctly concluded that Kohler v. Ind. Comm., 224 Wis. 369, 271 N.W. 383 (1937), and Weissgerber v. Ind. Comm., 242 Wis. 181, 7 N.W.2d 415 (1943), were no longer controlling with respect to claims for death benefits, because the applicable statutory language has since been significantly amended. The Court concluded that LIRC's interpretation of the current statute of limitation for death benefits, Wis. Stat. § 102.17(4), was reasonable and was consistent with the general rule that statutes of limitation begin to run at the time that the cause of action accrues.

The court's decision, International Paper Co. et al. v. LIRC and Work Injury Supplemental Fund, 2001 WI App 248,  635 N.W. 2d 823 (#01-0126, filed September 25, 2001), has been recommended for publication.

May 3, 2001 - The Court of Appeals issued a decision today in a worker's compensation case involving an engineering student at the UW-Madison who was also employed by the University as a research assistant, and who was seriously injured while assisting his professor/ research coordinator in the construction of the professor's new house.

The employee had raised a number of arguments, including one based on the "private errand" theory, whereby recovery may be had when a supervisor directs an employee to perform private work for the benefit of the employer or the supervisor. The commission’s decision rejected these arguments and found that the injury did not arise out of and in the course of the employee's employment with the University. The circuit court reversed the commission and found the injury was compensable under the "private errand" theory, as well as under the "traveling employee" and "positional risk" theories.

In its decision today, Begel v. LIRC and UW-Madison,  2001 WI App __, __ Wis.2d __, __ N.W. 2d __ (#00-1875), which has been recommended for publication, the 4th District Court of Appeals affirmed the circuit court's holding with respect to the "special errand" theory of recovery. The commission had found that after an academic discussion between the employee and the professor had ended at the professor's house construction site, the employee asked the professor (who was acting as his own general contractor in constructing the house)  if he could use some help with the construction tasks.  The commission had found that the employee thereby volunteered his assistance to further his personal goal of pleasing his professor. Volunteer activity is not covered under the Worker's Compensation Act, and for this reason the commission had found the "private errand" theory inapplicable.  The court of appeals, however, drew a distinction between the employee's original offer to help, and the subsequent event which led directly to the employee's injury. After his initial offer to help was accepted, the employee had worked for about 20 minutes attaching flooring sheets to joists;   this activity ended when it began to rain.  At that point, the professor asked the employee to help move a broken joist so that an exposed portion of the flooring could be covered with a tarp; it was while moving this joist that the employee fell through an opening in the floor and sustained a spinal cord injury. The court held that the professor's request to move the joist constituted a "private errand" request, and was not so "clearly unauthorized" that coverage should be denied.

April 23, 2001 - The 2001 Edition of the Equal Rights Division's Equal Rights Decision Digest is now available on-line.  This edition has been updated to include summaries of significant administrative and judicial decisions through 2000 and early 2001.  Note: The printed version of the 2001 ER Decision Digest is still at the printer.  When it becomes available, an announcement will be made at this site.

April 19, 2001 -- 2000 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2000, are now available at this website.

April 4, 2001 - The Supreme Court issued a decision today in a Workers Compensation case involving an employee who, while on a business trip, passed out while intoxicated and suffered frostbite which resulted in the loss of his fingers. 

The commission decision, applying the law that "travelling employees" are covered by WC while engaged in acts reasonably necessary for living, concluded that the employee had not engaged in an unreasonable deviation and that his injuries were covered -- although it applied a 15% reduction in benefits based on a finding that the employee's intoxication was a substantial factor in causing his injuries.  The circuit court affirmed the decision to allow benefits,  but it reversed the commission on the 15% reduction and thus allowed the employee full compensation for his injuries. The court of appeals, in an unpublished per curiam decision, affirmed the circuit court.

In its decision today, Heritage Mutual Ins. Co. et al. v. William E. Larsen at al.,  2000 WI 30, __ Wis.2d __, __ N.W. 2d __, the Supreme Court upheld LIRC's decision in all respects, affirming both the determination that the injury was compensable under the Worker's Compensation Act, and the decision that there should be a 15% reduction in the amount of the award in view of Larsen's intoxication. The Court's decision, authored by Chief Justice Abrahamson, agreed that the application of the "traveling employee" doctrine was appropriate because Larsen was in the area on a business trip.  The Court agreed with LIRC that, even if Larsen had engaged in a "deviation" by engaging in drinking and becoming intoxicated, the deviation had ceased, and he had returned to engaging in acts "reasonably necessary to living or incidental thereto", as contemplated by the "traveling employee" statute, when he returned to and attempted to enter his mobile home, the point at which he was injured.   The Court held to its long-standing refusal to rule as a matter of law that intoxication is synonymous with personal deviation, and it distinguished the Goranson decision by noting that while in Goranson it was appropriately found that the injury arose out of a circumstance purely personal to the employee, in this case, the frostbite injury arose out of a zone of special danger created by the circumstances of Larsen's (traveling) employment, the cold weather and the difficulties he had in opening the door to his mobile home.

Justice Crooks, joined by Justices Wilcox and Sykes, dissented from the decision upholding the determination that the injury was compensable.  The dissent opined that Larsen's drinking and subsequent intoxication was a deviation from the purposes of his business trip which dissolved any connection between his work and his injuries.

April 3, 2001  - The Supreme Court today issued a decision in a Workers Compensation case involving the question of whether the average weekly wage amount used to determine the level of worker's compensation benefits, should be interpreted to include health insurance premiums.    The commission decision, giving weight to the fact that the department had never interpreted average weekly wage in such a fashion, had held that the premiums should not be included in the average weekly wage.  The circuit court affirmed the commission's decision, and on appeal the Court of Appeals certified the case to the Supreme Court. In its decision today, Steven Theuer v. LIRC, Ganton Technologies and North River Ins. Co.,  2001 WI 26, __ Wis.2d __, __ N.W. 2d __, the Supreme Court upheld LIRC's interpretation, that health insurance premiums are not a "thing of value" which must be considered in determining average weekly wage under Wis. Stat. § 102.11 (1)(e).

That interpretation had long been incorporated into the Workers Compensation Manual of the Department of Workforce Development.  Theuer had argued, however, that LIRC's interpretation was not of sufficient "long standing" to justify the Court in giving deference to it, pointing to two recent decisions by administrative law judges of the Department including health insurance premiums in the computation of average weekly wage.  Noting that these decisions had not been appealed to LIRC, the Court held that because LIRC is not required to review unappealed decisions of administrative law judge on its own motion to ensure that its  interpretations of the statutes are applied correctly, these recent, unreviewed decisions do not justify the Court in rejecting LIRC's interpretation as not being of "long standing". Thus, the Court held, it was appropriate to give "great weight" deference to LIRC's interpretation.

Turing to the merits, the Court observed that while the phrase "things of value" could reasonably be construed to cover health insurance premiums,  it was also reasonable to construe it (as LIRC has) as extending only to taxable earnings.   Courts in other jurisdictions which have agreed have noted that non-taxable fringe benefits do not have a present value that can readily be converted into a cash equivalent, that there is no direct relation between the cost of the benefit and its value to the employee, and that expanding the definition of wages to cover fringe benefits would disrupt the process for prompt compensation by making the computation of wages a disputed issue.  LIRC's interpretation, providing a "bright-line" rule, helps to promote the legislative role of speeding payment of compensation.  The Court also notes, that to begin including fringe benefits in the computation of the wage on which benefits are based would create additional costs for employers that would disrupt the careful balance which the WC system strikes between the competing interests of employees and employers.

February 14, 2001 - Improved tools to find LIRC decisions on line have been introduced at the Search UI DecisionsSearch WC Decisions and Search ER Decisions pages.

Users of this website may have noticed that at times, the "count" of decisions on line increases even though a search of the decisions issued in the last few months turns up no new additions.  This has occurred because we periodically upload older LIRC decisions which have not previously been on line.  Until now, however, there has been no way for users to specifically locate these recently-uploaded older decisions.  To provide this, buttons have now been added which will automatically send a search query that will locate older decisions which have only recently been uploaded.  Specifically, these "recent uploads" buttons will find any decisions issued more than two months ago, that have only been uploaded to the site recently within the last two months.

In addition, buttons have been added to the UC and WC search pages to more conveniently take users to the pages where there are "programmed" search buttons corresponding to particular topical areas.   Every UC decision uploaded to this site is coded with at least one section number from the UC Decision Digest;  similarly, every WC decision is coded with at least one section number from Neal & Danas' Workers Compensation Handbook.   These codings reflect the topic(s) addressed by the decision.  The complete topical schemes of both of these works are provided at this website, and in each, buttons corresponding to particular topical areas will automatically send a search query for any decision coded under that area. [UC Digest Topics list] [Neal & Danas Handbook Topics list].

January 9, 2001 - Governor Tommy G. Thompson today re-appointed David B. Falstad to the Labor and Industry Review Commission and named him chairman.

Governor Thompson also appointed Laurie R. McCallum to the commission.

Falstad, who was first appointed to the commission in 1995, will serve a six-year term ending in 2007.

McCallum will replace commissioner Pamela I. Anderson, who has announced her retirement from the commission. Anderson was appointed to the commission in 1987 by Governor Thompson and served on it from 1981-1985 as well.

McCallum, who will serve until 2005, has served on the Personnel Commission since 1981 when appointed by Gov. Lee Sherman Dreyfus and later re-appointed by Gov. Tony Earl.

November 28, 2000 - In Spencer v. DILHR, 55 Wis. 2d 525, 200 N.W.2d 611 (1972), the Wisconsin Supreme Court held that where an employe accepts treatment recommendations in good faith, Workers Compensation benefits for expenses and consequences of the treatment are payable even if, in retrospect, it appears that the treatment was unnecessary or unreasonable.  In a decision issued on November 28, Honthaners & North River Ins. Co. v. LIRC & Stanislowski, the Court of Appeals has held that Spencer is still good law, rejecting an argument that it was effectively overruled by subsequent amendments.  In the decision, the court applied the rule of Spencer to affirm a LIRC decision which ordered payment of TTD and medical expenses connected to treatment of a condition which was "overdiagnosed and overtreated" but where the employee believed herself to be permanently disabled and engaged in her prolonged medical treatment in good faith. It was undisputed, a majority of the court found, that there had been an underlying work injury, and therefore the treatment undertaken in good faith was subject to the Spencer rule.  One member of the court panel, Justice Fine, dissented, noting that he did not agree that there was an undisputed compensable work-related injury;  he opined that the majority was using Spencer to resolve the dispute as to whether there was such an injury. 

The court's decision has been recommended for publication.

November 22, 2000 - The Court of Appeals re-issued a decision today in a case arising under the Fair Employment Act, which announced a standard of proof relevant to disability discrimination cases involving mental disabilities. The court's decision, Wal-Mart v. LIRC and Schneider,  arose out of the discharge of an employee for an angry outburst he engaged in when he learned that another employee was being given a promotion he had sought.  The discharged employee contended that he was discriminated against because of disability, because his outburst was caused by his Obsessive-Compulsive Disorder ("OCD");  the administrative law judge, LIRC, and the circuit court agreed.  However, in the decision issued today, a majority of the Court of Appeals panel reviewing the case reversed the finding of discrimination, holding that there was insufficient evidence that the discharged employee's OCD was in fact the cause of the behavior for which he was fired. 

The court majority held that expert testimony was a prerequisite to a finding that the employee's outburst was caused by his OCD and that the evidence relied on to establish this -- the employee's own opinion that it was so, a pamphlet   containing some general information about OCD, and a deposition from a psychiatric R. N. who had been involved in the employee's treatment -- was not adequate.  The question of whether the employee's OCD could have caused the conduct, the court's decision indicated, is one requiring special knowledge or skill or experience on subjects not within the realm of the ordinary experience of mankind and requiring special learning, study or experience.  The employe was not expert under these standards, the majority observed, and neither the pamphlet nor the R. N.'s deposition provided direct evidence (or allowed an inference) that the employee's outburst was caused by his OCD. One member of the court panel, Justice Vergeront, dissented, noting that she would have held that evidence was sufficient to establish that the employee's outburst was caused by his OCD. 

Observing that Wal-Mart had not explicitly raised the assertion that the finding was not supported because of the absence of expert evidence, the court remanded the matter for further proceedings, which it notes may include additional evidentiary proceedings.  The court also invites LIRC on remand to address the question of whether a firing for misconduct caused by a disability equates, as a matter of law, to a firing because of the disability.

The court's decision has been recommended for publication.

(1) NOTE: The Court of Appeals originally issued its decision in this case on September 21, 2000, and publication of that decision was ordered on October 18, 2000.  However, on November 9, 2000, the Court of Appeals withdraw that opinion.  The opinion issued today differs primarily in that it remands to LIRC, where further hearing will be allowed.  [Back]

October 31, 2000 - In a Workers Compensation decision which has been recommended for publication, Fry v. LIRC, Piper Jaffray and Pacific Indemnity, the District III Court of Appeals affirmed a LIRC decision (which had also been affirmed by the circuit court) involving the application of "personal comfort doctrine".   The applicant was killed in a traffic accident which occurred when he left his workplace in the middle of the day and was driving to the hospital to seek medical attention for a non-work-related condition.  The court upheld the decision that the applicant  was not acting within the "personal comfort doctrine" and was thus not performing services growing out of and incidental to his employment at the time of his death.

October 18, 2000 - The District II Court of Appeals issued a decision today, White v. LIRC, Olympic Wall Systems and Transportation Ins. Co., which rejected a Workers Compensation applicant's attempt to interpret certain language found in Wis. Stat. § 102.01 (2)(g)2. to mean that if an applicant can show that he has an occupational disease and was employed by a particular employer at the time the disease was discovered, that employer must be found liable for the occupational disease, even without proof that the applicant's employment with that employer materially contributed to the onset or progression of the disease.  The applicant (White) was a drywaller with multiple drywall employers in his work history.  LIRC found that he failed to provide credible medical evidence that his 30-week employment with his most recent employer, Olympic Wall Systems, materially contributed to his occupational back disease. The court affirmed LIRC and explained that 102.01 (2)(g)2. is designed to identify the liable employer when multiple employers are involved.  The court held, that the statute does not eliminate the requirement that the applicant first prove that his employment with the employer at issue was materially contributory to the disease.  The decision, which rejects a novel attempt at statutory interpretation, has been recommended for publication.

September 13, 2000 - In a decision issued today,  the court of appeals has upheld a LIRC decision   which had awarded permanent total disability, on an "odd-lot" basis, to a worker who had scheduled injuries to his lower extremities and also unscheduled back disability.

The  court of appeals' decision  noted that the supreme court had held in Mireles v. LIRC, 2000 WI 96, __ Wis. 2d __, 613 N.W.2d 875, that an injured worker could qualify for permanent total disability benefits under Wis. Stat. § 102.44(2) based upon a combination of scheduled and unscheduled injuries.   The court of appeals went on to note,   however,  that Mireles did not over-rule Langhus v. LIRC, 206 Wis. 2d 494, 557 N.W.2d 450 (Ct. App. 1996), in which LIRC denied a worker's claim for permanent total disability benefits because the worker failed to demonstrate what portion of his disability could be attributed to his unscheduled back injury, so that compensation for loss of earning capacity would not be awarded for an injury caused either significantly or wholly by a scheduled injury.    However, the court of appeals concluded that here, the worker "established that a clear, ascertainable portion of his disability is attributable to his unscheduled back injury".   Accordingly, the court concluded  he was entitled to lifetime benefits under Wis. Stat. § 102.44(2) for permanent total disability.

The court's decision, Secura Insurance  and Stevenson's Trendsetters v. LIRC and Rice,  2000 WI App_, _ Wis.2d _, _ N.W. 2d _, has been recommended for publication.

September 12, 2000 - The Supreme Court has granted a petition for review in the Larsen case, which involved an employee who, while on a business trip, passed out while intoxicated and suffered frostbite which resulted in the loss of his fingers.  The commission decision, applying the law that "travelling employees" are covered by WC while engaged in acts reasonably necessary for living, concluded that the employee had not engaged in an unreasonable deviation and that his injuries were covered, although a 15% reduction in benefits was applied because the employee's intoxication was a substantial factor in causing his injuries.  The circuit court affirmed the decision to allow benefits,  but it reversed the commission on the 15% reduction;  the court of appeals, in an unpublished per curiam decision, affirmed the circuit court.

August 2, 2000 - A recently released Legislative Audit Bureau Report on Hearing Officers In Wisconsin State Government contains a table showing the rate at which decisions of DWD Hearing Officers have been reversed by the Labor and Industry Review Commission.  This table has been reproduced at this website's Statistics page. The full report is available in .pdf  format at the website of the Legislative Audit Bureau.

July 24, 2000 - The Milwaukee Board of School Directors (MBSD) has filed an appeal of the June 14, 2000 decision of  Milwaukee County Circuit Court Judge John Franke in the Mark Moore case. MBSD has filed its appeal from the ruling made by Judge Franke in that case, that MBSD discriminated against Mark Moore because of his conviction record, in violation of the Wisconsin Fair Employment Act, in connection with MBSD's refusal to consider Moore for a position as a boiler attendant trainee in a Milwaukee school.  (see story below).  That issue will now be submitted to and decided by the Court of Appeals.

July 12, 2000 -  In a decision released today, the Wisconsin Supreme Court has explained how the Workers Compensation Act should be applied in cases where a worker suffers a combination of "scheduled" and "unscheduled" injuries.  Generally, under the Workers Compensation Act, compensation for injuries involving loss of extremities, hearing or sight is paid according to statutory "schedules";  compensation for other types of injuries, which are "unscheduled", is based on loss of earning capacity ("LOEC").  If a worker suffers an unscheduled injury but is able to return to work at close to their prior wage, no LOEC can be awarded;  however, if they subsequently lose their employment, their claim may be reopened and LOEC awarded. In the Court's decision, Mireles v. LIRC, Ametek-Lamb Electric and Nat. Union Fire Ins. of Pittsburgh, 2000 WI 96 (Sup. Ct., No. 98-1607, filed July 12, 2000),  the Court holds that a worker in this situation may have their claim reopened for an award of LOEC, even if it was a scheduled injury which caused their subsequent loss of employment. The Court also held that the Act allows a finding of permanent total disability based on a combination of scheduled and unscheduled inuries. The Court's decision had its origins in a 1997 LIRC decision which was reversed by the Circuit Court and then reinstated by a 1999 Court of Appeals decision;  the Supreme Court's decision  reverses the LIRC decision and remands for further proceedings. 

June 27, 2000 - In a decision released today, Brauneis et al. v. LIRC and Illingworth Corp., the Wisconsin Supreme Court has upheld a circuit court's  reversal of the commission's decision in an Unemployment Insurance case involving a "labor dispute" issue.

The case concerned the UI benefit eligibility of employes of Illingworth, an employer which was a member of an association of employers which bargained as a group with the union representing the employer-members' employes.  After a different employer-member of the association was struck, all members of the association (including Illingworth) initiated lockouts of their employes.  When employes of Illingworth sought UI benefits, the question was whether its lockout was a statutory lockout under Wis. Stat. § 108.04(10)(d).   The UI Law provides that employes who lose work as a result of a "labor dispute" are ineligible for benefits, unless the labor dispute is a "lockout".  Section (10)(d) defines the term "lockout", but the definition excludes lockouts which are "directly subsequent to a strike or other job action of a labor union or group of employes of the employer".  The commission decision had found that the strike had been a "selective strike" intended to put pressure on all members of the employer association to settle, and that the lockout had been undertaken in response to that "selective strike".   Thus, the commission decision found, the lockout had been "directly subsequent to a strike or other job action of a labor union or group of employes of the employer" within the meaning of the statute, and thus it was not a "statutory lockout".  Therefore, it was a labor dispute which made the employes ineligible.  The circuit court decision reversed the commission, and after the commission appealed, the Court of Appeals certified the case directly to the Supreme Court. 

The Supreme Court's decision holds that the most reasonable construction of the statute, is that a lockout by an employer is only "directly subsequent to a strike or other job action of a labor union or group of employes of the employer" if it is directly subsequent to a strike or other job action of employes of that employer. The phrase "of the employer", the Court holds, "does not include an employer joined or associated with another for the purpose of collective bargaining".  The employes in this case "did not strike Illingworth or take any other job action".  The Court's interpretation "looks to the conduct between the employer and employee and does not involve divining the intent of a strike against another employer".

June 14, 2000 - Milwaukee County Circuit Court Judge John Franke has issued his decision in the appeal of the commission's decision in  Mark Moore v. Milw. Bd. of School Directors (LIRC, July 23, 1999), a  conviction record discrimination case.    Summarizing his ruling in the Introduction to his decision, Judge Franke said:

"The Milwaukee Board of School Directors seeks judicial review of a decision by the Labor and Industry Review Commission which found that the Milwaukee School Board had engaged in employment discrimination and ordered the Board to hire complainant Mark Moore to the next available Boiler Attendant Trainee position and to compensate him for back pay and benefits.  After several agency level proceedings and decisions, the Commission ultimately concluded that the Milwaukee School Board had unlawfully discriminated against Moore when it rejected his job application on the basis of a prior criminal conviction.  While I do not agree with the Commission's reasoning, I agree that it reached the correct legal conclusion with respect to the issue of discrimination and affirm its decision in that regard.  I find, however, that the procedure followed in determining the appropriate remedy was unfair and an abuse of the agency's discretion, and I therefore reverse and remand for a hearing on the appropriate order as discussed below."

The Judge's decision affirms the Commission's Conclusions of Law that MBSD discriminated against Moore, in violation of the Wisconsin Fair Employment Act, in regard to conviction record when it failed to hire or employ him for the position of boiler attendant trainee, and it affirms the Commission's Order that MBSD cease and desist from discriminating against Moore because of his conviction record.  However, the Judge's decision sets aside the Commission's Orders that MBSD hire Moore for the next available position as a boiler attendant trainee and give him back pay.  Judge Franke's decision remands the case to the commission for a hearing and a determination of the appropriate order to be entered as a remedy for the discrimination which was found to have occurred. (MBSD appeals - see story above)

June 14, 2000 - The 2000 Edition of the Equal Rights Division's Equal Rights Decision Digest is now available on-line.  This edition has been updated to include summaries of significant administrative and judicial decisions through 1999.  Note: The printed version of the 2000 ER Decision Digest is still at the printer.  When it becomes available, an announcement will be made at this site.

May 3, 2000 - Wisconsin's Unemployment Insurance law provides that employes who are "suspended...for good cause connected with the employe's work", will be ineligibile to receive  unemployment benefits for the week in which they are suspended and for up to 3 weeks thereafter.  In a decision issued today, the Court of Appeals clarifies how that provision is to be applied when there is an initial period of suspension with pay.    City of Kenosha v. LIRC and Thomas R. Knight, (Ct. App., No. 99-1456, filed May 3, 2000; publication recommended) (.pdf format / .html format) involved a police officer who was suspended, with pay, pending consideration of disciplinary charges. Weeks later, after the Police and Fire Commission held a hearing on the charges, it gave the officer a 30-day disciplinary suspension without pay.    He then applied for unemployment benefits.  LIRC's decision held that  the required period of ineligibility began when the officer was first suspended; this meant that by the time he was suspended without pay, more than 4 weeks later, he was eligible to receive benefits.  The City appealed,  arguing that there was no "suspension" for purposes of the statute, until there was a suspension without pay.  The Circuit Court's decision affirmed, and the City appealed again.  The Court of Appeals today affirmed  LIRC's decision, holding that the statutory language plainly and unambiguously declares that the period of ineligibility begins when an employe is "suspended" and that this applies to suspensions with or without pay. The Court rejects the City's "public policy" argument, observing that while some may find it anomalous that the period of ineligibility for benefits does not take in the full period of  a suspension with pay, that is the legislatively prescribed result.   The Court says, "If the legislature sees this as a problem, it is free to correct it.  But we will not rewrite the statute".

April 18, 2000 - The Court of Appeals issued a decision today addressing an issue of due process in hearing procedures under the Workers Compensation Act. Zimbrick v. LIRC and De Pere Foundry, Inc., (Ct. App., No. 99-1894, filed April 18, 2000; publication recommended) arose from a case in which the Department determined that a penalty, equal to an additional 15% of the workers compensation due, should be assessed against an employer for a safety violation which resulted in a worker's death.    When the employer contested the assessment, the Department noticed a hearing. Although served with a notice of the hearing, the decendent's surviving spouse did not appear, and after the hearing the ALJ overturned the penalty assessment. The surviving spouse appealed, and LIRC affirmed.  The circuit court held that the notice of hearing was inadequate because it did not inform the deceased worker's surviving spouse that she bore the burden of proving that the 15% penalty should be assessed.  On appeal, the Court of Appeals agreed that the notice of hearing was inadequate, but ruled against the surviving spouse because she had failed to prove that she had been prejudiced by the inadequacy of the notice.

March 1, 2000 -- In a Workers Compensation decision recommended for publication, the Court of Appeals has clarified the circumstances under which the commission may reject uncontradicted expert medical opinion.  Kowalchuk v. LIRC, Sunny Slope Grading, and Regent Ins. Co., (Ct. App., No. 99-1183, filed March 1, 2000).  Uncontradicted expert medical opinion may be rejected, the court holds,   when it is based upon a history given by the employee to the medical expert which the commission finds not credible.   In so ruling, the court distinguishes Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994) and Erickson v. DILHR, 49 Wis. 2d 114, 181 N.W.2d 495 (1970).

February 28, 2000 -- 1999 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 1999, are now available at this website.

February 11, 2000 - Some features have been added to the LIRC website to improve access to full-text copies of commission and court decisions, when they are available on-line:

The Equal Rights Decision Digest has been annotated to add links to full-text copies of the decisions summarized, in every case in which there is such a copy available on the internet.   Full-text copies of most recent (1998-2000) LIRC decisions, as well as a number of earlier ones, are available at the LIRC site, and are linked to.  Full-text copies of Supreme Court  and published Court of Appeals decisions in the Equal Rights area are available at those courts' websites back to mid-1995, and those decisions are also linked to where the ER Digest refers to such a decision.

A comprehensive list of all precedential court decisions issued since mid-1995 in the areas of Unemployment Insurance, Workers Compensation and Equal Rights, is available at the LIRC website, with links to the full-text versions of these decisions available at the courts' websites.   A related page provides a list of the most recent court decisions, with summaries of the issues they involve, also with links to the full-text versions on-line at the courts' sites.

January 25, 2000 - In a decision recommended for publication, the Court of Appeals has upheld a commission decision interpreting and applying the statutory provisions for determining whether a person is an independent contractor or an employe under the Workers Compensation Act.  Jarrett v. LIRC and B & D Motors Inc. and Regent Ins. Co.,(Ct. App., No. 99-1413, Filed January 25, 2000; publication recommended) concerned a semi-truck driver, Jarrett, working under contract to a trucking firm, who sought to be treated as a covered employe under the WC Act after sustaining injuries in an accident.  The commission found that Jarrett met the 9 tests of Wis. Stat. § 102.07(8)(b) and was an independent contractor.  The Circuit Court for Lincoln County reversed the commission, concluding that it should have first looked to the common law test for independent contractor status, but the Court of Appeals overturned that decision and reinstated the commission's decision.

December 21, 1999 - The Court of Appeals has upheld LIRC's decision that the Wisconsin Fair Employment Act's prohibition against discrimination because of "marital status" applies to the status of being married in general rather than the staus of being married to a particular person. Bammert v. LIRC (No. 99-1271, Ct. App. Dist. III, December 21, 1999) arose out of the discharge of Karen Bammert by her employer, allegedly because Bammert's husband, a police officer, had been involved in the arrest of her employer's wife. The Court of Appeals' decision, which has been recommended for publication, affirmed a circuit court decision which upheld the decision of LIRC that Bammert's complaint failed to state a cause of action under the Fair Employment Act.

December 7, 1999 - The Court of Appeals has certified to the Supreme Court an Unemployment Compensation case, Todd Brauneis et al. v. LIRC and Illingworth Corp.,  presenting the question of whether a defensive lockout by an employer which is a member of an association of employers, in response to a different employer member of the association being struck, is a statutory lockout under Wis. Stat. § 108.04(10)(d). The commission decision had found that the situation in the case was not a lockout within the meaning of the statute, with the result that benefits were not allowed to the employes who were locked out.  The circuit court decision reversed, and the commission had appealed. The Court of Appeals certification   provides a good description of the facts and issues in the case.

July 23, 1999 -  The Wisconsin Supreme Court has granted the Petition for Review of the Court of Appeals decision in Mireles v. LIRC, Ametek-Lamb Electric and Nat. Union Fire Ins. of Pittsburgh, 226 Wis. 2d 53, ___ N.W.2d ___ (Ct. App. 1999) (Ct. App., No. 98-1607, March 24, 1999).  The case arose from a LIRC decision issued on April 25, 1997, which was reversed by the Circuit Court and then reinstated  by the Court of Appeals.

July 6, 1999 - On June 30, 1999, the Wisconsin Supreme Court released its opinion in McDonough v. DWD, LIRC, Wausau Business Ins., Wis. Rapids, __ Wis. 2d __,__ N.W.2d__ (1999) (Sup. Ct., No. 97-3711, Filed June 30, 1999), concerning the required procedures for obtaining judicial review of orders of the department in necessity-of-treatment disputes.

June 22, 1999 -- Links to full-text copies of recently published court decisions in the areas of Unemployment Insurance, Workers' Compensation, and Equal Rights/Discrimination, are now available at this website.

Heading up the list as most recent -- the Wisconsin Supreme Court just released its opinion in an important WC case, Wis. Electric Power Co. v. LIRC and Scott Overbye (No. 97-2747, Filed June 22, 1999). This case concerns the "traveling employee" statute, Wis. Stat. § 102.03(1)(f). The Court's decision affirms the 1996 LIRC decision in the case.

May, 1999 -- The LIRC website undergoes a transition to a new "look".  Visitors to this site are invited to contact LIRC with any reactions, comments or suggestions.

April 16, 1999 -- The 1999 Edition of the Equal Rights Division's Equal Rights Decision Digest is made available at this website.

April 1, 1999 -- 1998 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 1997, are available at this website. 

September 22, 1998 -- The on-line Unemployment Insurance Digest at this website is updated to include summaries of decisions issued in the period 1995 through 1997.   The on-line UI Digest  now covers the period 1991-1997.  

In addition, the on-line UI Digest has been substantially improved in format.   The case citations are now themselves direct links to the case summaries, eliminating the need for the intermediate steps of going to the appropriate summary file and scrolling to find the summaries.  In addition, case summaries are now listed in reverse chronological order (most recent first) under each Digest category, to facilitate locating the most recent decisions on the subjects covered.

("Hard copy" version:  The UI Digest is also available in printed form.   Persons interested in obtaining a copy of the printed 1995-1997 edition can contact the commission and place an order for their copy.)

February 9, 1998 -- 1997 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 1997, are available at this website.

January 27, 1998 -- Selected Equal Rights decisions of the commission (arising under the Wisconsin Fair Employment Act) are now available on line! They can be accessed by an Equal Rights (ER) Decisions Search Engine.

January 21, 1998 -- To provide an additional source of Unemployment Insurance (Unemployment Compensation) law, we have begun uploading summaries of UI Court decisions. These are summaries of decisions of circuit courts and the court of appeals in actions seeking judicial review of decisions of the commission in UI cases. These summaries are being uploaded into the existing collection of commission decisions, so that when a UC Decisions search is conducted, links to UI court decision summaries that include the search term will also be displayed in the results.

January 21, 1998 -- We continue to upload Worker's Compensation decisions of the commission every week; they can be accessed by a WC Decisions search.

January 15, 1998 -- There is a new chairman of the commission: the members of the commission have elected commissioner David B. Falstad chairman of the commission, effective January 15, 1998.

December 9, 1997 -- There is a new member of the commission: James A. Rutkowski becomes a commissioner effective December 9, 1997.

 

 

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