Beecher v. LIRC

• Decision Date: 16 April 2003
• Docket Number: No. 02-1582.,02-1582.
• Citation: 663 N.W.2d 316,2003 WI App 100,264 Wis.2d 394
• Court: Wisconsin Court of Appeals
• Parties: Ralph E. BEECHER, Plaintiff-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION, Outokumpu Copper Kenosha, Inc. and Fremont Indemnity Co., Insurer, c/o Casualty Insurance, Defendants-Respondents.

264 Wis.2d 394

2003 WI App 100

663 N.W.2d 316

Ralph E. BEECHER, Plaintiff-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION, Outokumpu Copper Kenosha, Inc. and Fremont Indemnity Co., Insurer, c/o Casualty Insurance, Defendants-Respondents.¹

No. 02-1582.

Court of Appeals of Wisconsin.

Oral argument February 12, 2003.

Decided April 16, 2003.

On behalf of the plaintiff-appellant, there were briefs and oral argument by Daniel J. Kelley of Schoone, Leuck, Kelley, Pitts & Knurr, S.C., Racine.

On behalf of the defendant-respondent Labor & Industry Review Commission, there was a brief by Stephen M. Sobota, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Stephen M. Sobota, assistant attorney general.

On behalf of the defendants-respondents Outokumpu Copper Kenosha, Inc. and Fremont Indemnity Co., Insurer, c/o Casualty Insurance, there was a brief by Scott E. Wade and Jessica M. Vianes of Peterson, Johnson & Murray, S.C., Milwaukee. There was oral argument by Scott E. Wade.

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

¶ 1. SNYDER, J.

Ralph E. Beecher appeals from an order dismissing his appeal of a Labor & Industry Review Commission (LIRC) worker's compensation decision finding that he had not established a prima facie case for permanent total disability; LIRC instead ruled that Beecher was permanently partially disabled. Beecher argues that there is no substantial and credible evidence to support LIRC's conclusion that he failed to establish a prima facie case of permanent total disability. We agree with Beecher and reverse the order of the circuit court.

FACTS²

¶ 2. Beecher was born in July 1942 and has a ninth grade education. Beecher had worked for Outokumpu Copper Kenosha, Inc., a foundry, for twenty-nine years in what he has characterized as strenuous employment. As of April 7, 1997, Beecher had been working for several months on a "Z-mill" machine. The Z-mill ran sheets of metal from one large roll of metal to another roll or spool. The job required Beecher to lean over the first roll of metal to pick up the sheet of metal as it wound off the first roll, then thread the sheet of metal into a slit on the second roll. Beecher would wind the sheet of metal from the first roll to the second, then thread the metal sheeting into the Z-mill machine and rewind it. The metal sheets themselves were five to eight inches wide and approximately two inches thick; an entire roll might weigh 15,000 pounds. The job required bending over to pick up the sheets of metal and then pulling them to thread sheets onto the rolls.

¶ 3. Beecher developed sharp pains in his lower back, leading him to seek medical treatment with an orthopedist, Dr. Christopher Noonan, in April 1997. The pain increased over time until Beecher could no longer work. On September 10, 1997, Dr. Noonan performed a third surgical procedure to Beecher's lower back, a discectomy, fusion and graft. A fourth surgery has been suggested to help alleviate his condition but Beecher has not yet opted to have this procedure. ¶ 4. Beecher returned to light-duty work in April 1998, at which time he worked for two weeks until Outokumpu apparently ran out of light-duty assignments for him. Since then, Beecher has not returned to work for Outokumpu. Outokumpu has since moved its operations out of Wisconsin and did not offer to relocate Beecher to a light-duty job at its new location. Beecher testified that if he had been offered such a transfer, he would have accepted it.

¶ 5. In September 1999, Beecher filed an application for a hearing, alleging that his day-to-day work activities up to April 7, 1997, caused progression of his pre-existing back condition, ultimately leading to lumbar fusion surgery. Beecher sought temporary total disability benefits from October 14, 1998, through May 14, 1999, permanent partial disability benefits on a functional basis at fifteen percent to the body as a whole, and permanent disability on a vocational basis for loss of earning capacity, including permanent total disability and payment of medical expenses.

¶ 6. On January 3, 2001, a hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development. Prior to the hearing, Outokumpu and its insurer, Fremont Indemnity Co., conceded jurisdictional facts and an average weekly wage at the statutory maximum. In dispute before the ALJ was whether Beecher sustained injuries arising out of his employment while performing services incidental to or growing out of that employment and, if so, the nature and extent of the disability and related medical expenses. In addition, both parties had entered into a limited compromise agreement concerning certain issues. ¶ 7. On April 5, 2001, the ALJ issued his findings of fact and order finding a compensable injury and awarded compensation for temporary total disability from October 14, 1998, to May 19, 1999, and for permanent total disability thereafter. The ALJ also awarded payment of certain medical expenses. Outokumpu filed a timely petition for LIRC review. LIRC partially reversed the decision of the ALJ; LIRC found that Beecher had sustained a disability from an occupational disease arising out of his employment with Outokumpu. However, LIRC also found that Beecher had not established a prima facie case for permanent total disability but instead ruled Beecher was permanently partially disabled.

¶ 8. Beecher filed an appeal pursuant to WIS. STAT. § 102.23 (2001-02)³ seeking review of LIRC's decision. The circuit court affirmed LIRC's decision and Beecher appeals.

DISCUSSION

[1-3]

¶ 9. In an appeal following an administrative agency decision, we review the decision of the agency, not that of the circuit court. Am. Mfrs. Mut. Ins. Co. v. Hernandez, 2002 WI App 76, ¶ 11, 252 Wis. 2d 155, 642 N.W.2d 584. We do not weigh the evidence or pass upon the credibility of the witnesses and we must uphold LIRC's findings of fact on appeal if they are supported by credible and substantial evidence in the record. Id. 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. Id. [4, 5]

¶ 10. 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. Id. at ¶ 12. 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.

[6, 7]

¶ 11. 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 ¶ 13. 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.

[8, 9]

¶ 12. When we review an agency decision "de novo," we give no deference to the agency's interpretation. Id. at ¶ 14. 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. ¶ 13. Here, we accord LIRC's decision great weight deference and thus will sustain a reasonable agency conclusion even if an alternative conclusion is more reasonable. See id. at ¶ 12.

¶ 14. Upon briefs, Beecher argues that there is no substantial and credible evidence that he failed to establish a prima facie claim of permanent total disability pursuant to Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977). Beecher contends that his evidence established a prima facie claim of permanent total disability and LIRC's reasoning does not support its contrary conclusion. Beecher relies primarily on Balczewski, which he claims requires him to establish a prima facie case of permanent total disability, and concludes that since the facts of the case at hand are nearly identical to the facts of Balczewski, an identical result is compelled.

¶ 15. Outokumpu argues that LIRC's findings of fact support its legal conclusion. LIRC maintains that there was credible and substantial evidence to support its findings on the nature and extent of Beecher's disability; LIRC appears to acknowledge Balczewski's requirement that the claimant establish a prima facie case of permanent total disability but attempts to distinguish the facts of Balczewski from the case at hand.

¶ 16. However, in its brief, LIRC also implicitly argues that 4 ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKER'S COMPENSATION LAW § 84.01[4] (1st ed. 2001), elaborates on the Balczewski principles and is equally applicable to Beecher. In addition to Balczewski's requirement that the claimant establish a prima facie case of permanent total disability, LIRC cites to LARSON for the concept that "it is not unreasonable to place the burden of proof on [the] claimant to establish unavailability of work to a person in his or her circumstances . . . [which] would normally require a showing that the claimant has made reasonable efforts to secure suitable employment." In essence, LIRC argues that the burden was on Beecher to (1) establish a prima facie case for permanent total...