Advance Transp. v. Labor and Industry Review Com'n, 88-0621
| Decision Date | 21 December 1988 |
| Docket Number | No. 88-0621,88-0621 |
| Citation | 437 N.W.2d 236,148 Wis.2d 949 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Advance TRANSPORTATION, a/k/a Advance Transportation-Milwaukee, Plaintiff- Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, and Robert Hildebrandt, Defendants- Respondents. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Milwaukee County.
AFFIRMED.
Appeal from a judgment of the circuit court for Milwaukee county: JANINE P. GESKE, Judge.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
Advance Transportation, a/k/a Advance Transportation-Milwaukee (Advance) appeals from a judgment affirming a LIRC order dated February 13, 1987, which affirmed the findings and order of an administrative law judge (ALJ).
Claimant Robert Hildebrandt (Hildebrandt), a truck driver for Advance, sustained a back injury when his truck hit a dip in the road. He filed a claim for compensation benefits on August 3, 1982. On September 23, 1985, the matter was heard before ALJ James O'Malley. On January 30, 1986, the ALJ issued his findings and an interlocutory order. The order required Advance to make certain payments to Hildebrandt within ten days, and to pay vocational rehabilitation expenses incurred by Hildebrandt after September 22, 1985. The ALJ also assessed the following penalties: (1) $1,104.15 or ten percent of the total award for inexcusable delay in making payments for permanent partial disability and periods of temporary total disability, pursuant to sec. 102.22(1), Stats; and (2) $15,000 for bad faith failure to pay permanent partial disability and periods of temporary total disability, pursuant to sec. 102.18(1)(bp), Stats.
Advance petitioned LIRC for review. In an order dated July 3, 1986, LIRC affirmed the ALJ's interlocutory order. Advance did not appeal the LIRC decision. Time for appeal expired on August 4, 1986. On August 27, 1986, Advance made a partial payment to Hildebrandt. However, the payment did not include expenses for vocational rehabilitation incurred after September 22, 1985.
In October 1986, Hildebrandt petitioned for sanctions because of Advance's failure to comply with the January 30 order. After a hearing, another ALJ, Diane Ramthun, issued findings and an order on December 2. She found that at the time of the hearing, school expenses totaled $13,640.50 and meal and mileage expenses were $3,087. The ALJ noted that any excuse for not paying these expenses lapsed when the appeal time expired on August 4. Accordingly, the ALJ ordered, in addition to the vocational training award of $13,640.50 and expenses of $3,087, the following: (1) a penalty of $7,872.58 under sec. 102.18(1)(b), Stats., for failure to comply with the January 30, 1986 order; 1 (2) a penalty of $4,736.18 under sec. 102.22(1), Stats. 2 for inexcusable delay in payment; and (3) a penalty of $15,000 under sec. 102.18(1)(bp), Stats., 3 for bad faith failure to make prompt payment.
The ALJ found that Advance's failure to pay "imposed financial, social, and personal hardships on [Hildebrandt] and his family as well as constituted an abuse of administrative process...." 4 The ALJ concluded that Advance mishandled Hildebrandt's claim egregiously. The ALJ's interlocutory order was entered December 2, 1986 and confirmed by LIRC on February 13, 1987.
On appeal, Advance argues that: (1) Under sec. 102.18(1)(bp), Stats., bad faith damages cannot be assessed in an interlocutory order; (2) pursuant to subs. (bp), only one $15,000 award can be made per case; (3) the second ALJ abused her discretion in assessing the maximum penalty under subs. (bp); and (4) penalties provided by secs. 102.18(1)(b) and 102.22(1), Stats. are duplicitous. We affirm the trial court's judgment.
Where, as here, we are called upon to interpret statutes upon an undisputed set of facts, an issue of law is presented. Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984). We owe no deference to the circuit court's conclusions or those of LIRC. See id.; West Allis School Dist. v. DILHR, 116 Wis.2d 410, 418, 342 N.W.2d 415, 420 (1984). However, we should accord a cautious deference to the judgment call of LIRC if its application of the statutes to a given set of facts has a legally rational basis and is otherwise consistent with constitutional provisions, case law and legislative history. See Klusendorf Chevrolet-Buick, Inc. v. LIRC, 110 Wis.2d 328, 331-32, 328 N.W.2d 890, 892 (Ct.App.1982). In Nigbor v. DILHR, 120 Wis.2d 375, 355 N.W.2d 532 (1984), the supreme court observed that:
[O]ne of the most troublesome issues in administrative law is determining whether the application of a statutory concept to a concrete fact situation should be treated as a question of fact or of law for purposes of judicial review.... [R]egardless of how a question is labeled, when a Commission determination calls for a value judgment, this court must decide in each type of case the extent to which it should substitute its evaluation for that of the agency.
Id. at 383, 355 N.W.2d at 537 (citation omitted). When the expertise of the agency is significant to the value judgment, the decision of the agency, although not controlling should be given great weight. Id. at 383-84, 355 N.W.2d at 537. We will defer to LIRC's expertise and precedent in its application of secs. 102.18(1)(b) and (bp) and 102.22(1), Stats., if its conclusions are reasonable. Cf. Kimberly-Clark Corp. v. LIRC, 138 Wis.2d 58, 63-64, 405 N.W.2d 684, 687 (Ct.App.1987).
The parties do not argue that these statutes are ambiguous and we ascertain no ambiguity. Therefore, we read the statutory language in its ordinary and accepted sense. See Jadofsky v. Iowa Kemper Ins. Co., 120 Wis.2d 494, 497, 355 N.W.2d 550, 552 (Ct.App.1984).
Advance challenges the sec. 102.18(1)(bp), Stats., penalty award for two reasons. First, it argues that pursuant to subs. (bp) a penalty cannot be assessed in an interlocutory order because it is a non-final order. Subsection (bp) states that "[t]he department may include a penalty in its final award." Sec. 102.18(1)(bp) (emphasis added). The department and LIRC have construed "final award" to allow for a final determination of the rights of the parties on the bad faith claim, even though jurisdiction may be reserved.
A bad faith claim under subs. (bp) constitutes an injury to the employee which is separate and distinct from the initial on-the-job injury. Jadofsky, 120 Wis.2d at 498, 355 N.W.2d at 553. Effectively, there were two final awards for Hildebrandt's two injuries arising from Advance's bad faith. LIRC's first award, made July 3, 1986, was not appealed. It became final thirty days later. See sec. 102.23(1), Stats. LIRC, however, reserved jurisdiction to make further awards if warranted. This included vocational rehabilitation benefits subsequent to September 22, 1985. LIRC's second (bp) award penalized Advance for failure to pay post-September 22, 1985 vocational rehabilitation costs, despite the fact it had stipulated to the amount of the charges.
Each commission of bad faith failure to pay caused Hildebrandt a separate injury. See id. at 498, 355 N.W.2d at 553. LIRC interprets the term "final award" found in subs. (bp) to apply to each failure to pay. We believe it a reasonable application.
Advance's literal approach to interpretating subs. (bp) is unreasonable. The plain language of a statute should not be construed to achieve absurd or unreasonable results. State ex rel. Opelt v. Crisp, 81 Wis.2d 106, 116, 260 N.W.2d 25, 30 (1977). Advance interprets the subs. to provide for penalties only upon a final order or judgment. This approach would allow an employer to procrastinate and avoid payment until the case was ultimately settled. This interpretation is unreasonable because it frustrates one of the purposes for including penalties in the act, to encourage prompt payment of employee awards. See Milwaukee County v. DILHR, 48 Wis.2d 392, 397-98, 180 N.W.2d 513, 516 (1970). 5
Advance next argues that in any event, only one subs. (bp) award can be assessed. The central fault in Advance's analysis is that it treats both failures to pay as a single event or injury. However, each act of bad faith caused Hildebrandt a separate injury. See Jadofsky, 120 Wis.2d at 498, 355 N.W.2d at 553. Therefore, we reject Advance's argument that only a single subs. (bp) award can be made in an action.
Although subs. (bp) refers to "a penalty" for failure to pay, and provides that "this penalty" is exclusive and that "the penalty" may be assessed against either or both the employer or carrier, this language must be examined over the litmus of the statute's underlying purposes. As already noted, one purpose is to effect prompt payment of employee awards. Milwaukee County v. DILHR, 48 Wis.2d at 397-98, 180 N.W.2d at 516. Subsection (bp) is part of a statutory scheme providing both compensatory and punitive remedies. The compensatory portion seeks to make the worker whole, and the punitive portion seeks to insure prompt payment. As we read subs. (bp), each separate consecutive injury subserves its own penalty and supports its own award. If Advance could not be assessed a second penalty for the second injury, it could use the immunity gained by paying the first award to delay future payments to suit its pleasure. The rationale of the California appeals court is persuasive to this issue:
The penalty is designed to secure timely payment of compensation, and if timely payment is not forthcoming after a first penalty a further penalty may run in order to cure the mischief. Were the threat of penalty limited to a single instance of delinquency, an employer or insurer who had unreasonably delayed payment of compensation and been assessed a 10-per-cent penalty could thereafter procrastinate indefinitely, subject only to the...
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