American Mfrs. Mut. Ins. Co. v. Hernandez

• Decision Date: 13 February 2002
• Docket Number: No. 01-1519.,01-1519.
• Citation: 2002 WI App 76,252 Wis.2d 155,642 N.W.2d 584
• Parties: AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY and Walgreen Company, Plaintiffs-Appellants, v. Ann HERNANDEZ and Labor & Industry Review Commission, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

252 Wis.2d 155

2002 WI App 76

642 N.W.2d 584

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY and Walgreen Company, Plaintiffs-Appellants, v. Ann HERNANDEZ and Labor & Industry Review Commission, Defendants-Respondents.

No. 01-1519.

Court of Appeals of Wisconsin.

Submitted on briefs January 10, 2002.

Decided February 13, 2002.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Cori Lynn Prahl and Michelle M. Stoeck of Hills Legal Group, LTD., of Waukesha.

On behalf of the defendant-respondent, Ann Hernandez, the cause was submitted on the brief of Kelin R. Olson, Sr. of Daniel P. Kondos, S.C., Law Offices of Milwaukee. On behalf of the defendant-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of James E. Doyle, attorney general, and Jerome S. Schmidt, assistant attorney general.

Before Nettesheim, P.J., Brown and Snyder, JJ.

¶ 1. NETTESHEIM, P.J.

Walgreen Company and its insurer, American Manufacturers Mutual Insurance Company (hereinafter referred to together as American) appeal from a circuit court order affirming a decision of the Labor and Industry Review Commission (LIRC). LIRC found that Ann Hernandez, a Walgreens' employee, suffered injuries compensable under the worker's compensation statutes. Hernandez's injuries at issue in this appeal were the result of an automobile accident that occurred while she was en route to her physician's office for a final examination of an earlier undisputed work-related injury. LIRC determined that at the time of the accident, Hernandez was performing a service growing out of and incidental to her employment pursuant to WIS. STAT. § 102.03(1)(c) (1999-2000)¹ and that the accident causing the injury arose out of her employment at Walgreens pursuant to § 102.03(1)(e).

¶ 2. We conclude that LIRC's decision is entitled to due weight deference on appeal. We further conclude that LIRC's interpretation of the statute in question, WIS. STAT. § 102.03(1)(c)1 and (1)(e), is reasonable, absent a more reasonable interpretation. We therefore uphold LIRC's decision and affirm the trial court's order.

BACKGROUND

¶ 3. The facts pertaining to this appeal as found by LIRC are as follows. Hernandez suffered a conceded work injury while working at Walgreens on November 14, 1997, when a door closed on her right thumb. She was treated by Dr. Andreas Doermann until February 9, 1998, at which time Dr. Doermann informed Hernandez that the healing was going well. Hernandez did not believe that she needed to return to see Dr. Doermann. However, in April or May of 1998, Hernandez received a message from Dr. Doermann's office informing her that Walgreens' worker's compensation insurer wanted him to perform a final evaluation of her injury. Hernandez scheduled an appointment for July 14, 1998.

¶ 4. On the day of the scheduled appointment, Hernandez worked at Walgreens. She then went home and changed clothes in preparation for the appointment. On the way to her appointment, Hernandez was involved in an automobile accident and sustained serious injuries.

¶ 5. Hernandez filed a hearing application on November 15, 1999, seeking temporary total disability compensation from July 14, 1998, to the date of filing. On December 29, 1999, American filed a response, contending that Hernandez's injuries were not covered by the worker's compensation law.²

¶ 6. A hearing was held before an administrative law judge (ALJ) on February 16, 2000. On April 17, 2000, the ALJ issued a written decision finding that Hernandez's July 14, 1998 injury was a "direct and natural result" of her prior compensable November 14, 1997 injury and was "compensable based on the November 14, 1997 injury."

¶ 7. American subsequently petitioned for LIRC review of the ALJ's findings and interlocutory order. In its brief in support of its petition, American conceded that it had requested a final evaluation but argued that Walgreens had not required that Hernandez attend the appointment. Hence, American challenged the ALJ's decision that Hernandez's injury was compensable under WIS. STAT. § 102.03(1)(e). In its decision, LIRC set aside the ALJ's findings but affirmed its ultimate decision regarding compensability.

¶ 8. American appealed LIRC's decision to the circuit court. On April 7, 2001, the circuit court issued a written decision upholding LIRC's determination. Affording great weight deference to LIRC's decision, the court stated, "LIRC's findings of fact are supported by substantial and credible evidence, and ... its interpretation of Wis. STAT. § 102.03 is reasonable." The circuit court entered its order affirming LIRC's decision on May 1, 2001.

¶ 9. American appeals.

DISCUSSION

Standard of Review

[1]

¶ 10. As a threshold issue, we address the parties' arguments as to the appropriate standard of review to be applied to LIRC's determination. Not surprisingly, American argues that LIRC's determination is not entitled to great weight deference, but rather is subject to de novo review. Hernandez argues that we should afford, at a minimum, due deference to the LIRC ruling. We conclude that due deference is appropriate in this case.

[2-4]

¶ 11. In an appeal following an administrative agency decision, we review the decision of the agency, not that of the circuit court. Zignego Co. v. DOR, 211 Wis. 2d 819, 824, 565 N.W.2d 590 (Ct. App. 1997).³ We do not weigh the evidence or pass upon the credibility of the witnesses, and we will uphold LIRC's findings of fact on appeal if they are supported by credible and substantial evidence in the record. Langhus v. LIRC, 206 Wis. 2d 494, 501, 557 N.W.2d 450 (Ct. App. 1996); WIS. STAT. § 102.23(6). When we review an administrative agency's interpretation of a statute, there are three possible levels of deference: great weight, due weight or de novo. Secor v. LIRC, 2000 WI App 11, ¶¶ 9-10 n.1, 232 Wis. 2d 519, 606 N.W.2d 175.

[5, 6]

¶ 12. When we afford "great weight" deference to the agency's interpretation, we will sustain a reasonable agency conclusion even if an alternative conclusion is more reasonable. Zignego, 211 Wis. 2d at 823. We give "great weight" deference to the agency's interpretation when all of the following conditions are met: (1) the agency was charged by the legislature with the duty of administering the statute, (2) the interpretation of the agency is one of long-standing, (3) the agency employed its expertise or specialized knowledge in forming the interpretation, and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. Id.

[7, 8]

¶ 13. In affording "due weight" deference to the agency's interpretation, we will not overturn a reasonable agency decision that comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available. Id. at 823-24. We afford "due weight" deference to the agency's determination when it has some experience in an area, but has not developed the expertise that necessarily places it in a better position than a court to make judgments regarding the interpretation of the statute. Id. at 823.

[9, 10]

¶ 14. When we review an agency decision "de novo," we give no deference to the agency's interpretation. See Brauneis v. State, 2000 WI 69, ¶ 18, 236 Wis. 2d 27, 612 N.W.2d 635. De novo review is appropriate if any of the following is true: (1) the issue before the agency is clearly one of first impression, (2) a legal question is presented and there is no evidence of any special agency expertise or experience, or (3) the agency's position on an issue has been so inconsistent that it provides no real guidance. Id.

¶ 15. American concedes that LIRC has had experience interpreting worker's compensation laws and even the particular language of WIS. STAT. § 102.03(1)(c)1 and (1)(e). However, American argues that de novo review is appropriate because LIRC has never been faced with the precise issue in this case— whether an employee was performing services related to the employment when involved in an accident on the way to a medical appointment relating to the status of a prior compensable work injury. However, the commission need not have decided a case with identical or similar facts in order for its decision to be given great weight deference. Honthaners Rests., Inc. v. LIRC, 2000 WI App 273, ¶ 12, 240 Wis. 2d 234, 621 N.W.2d 660. If that is the law as to "great deference," it surely is the law as to "due deference."

[11]

¶ 16. In applying deference to LIRC's determination, the correct test under Wisconsin law is whether LIRC has experience in interpreting a particular statutory scheme, not whether it has ruled on precise, or even substantially similar, facts before. Id. American concedes that LIRC has experience interpreting the applicable statutes; we reject its contention that de novo review is appropriate in this case due to the facts presented.

¶ 17. Instead, we are satisfied that due deference is appropriate. The issue presented is one of first impression. Although LIRC has experience interpreting the statutes in question, the legal question presented is nevertheless novel and LIRC has not developed an expertise as to the "second injury" issue presented in this case. Applying due deference, we will not overturn LIRC's decision if it is reasonable and comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available. Zignego, 211 Wis. 2d at 823-24.

The Application of WIS. STAT. § 102.03(1)(c)1 and (1)(e)

[12]

¶ 18. The parties agree that whether Hernandez is entitled to compensation for her July 14 injury turns on the application of WIS. STAT. § 102.03(1)(c)1 and (1)(e). The relevant provisions of § 102.03 which govern the conditions of liability for worker's compensation provide as follows:

(1) Liability under this chapter shall exist against an employer only where the following conditions concur:

....

(c)1.

...