CBS, Inc. v. Labor and Industry Review Com'n

• Decision Date: 30 June 1998
• Docket Number: No. 96-3707,96-3707
• Citation: 219 Wis.2d 564,579 N.W.2d 668
• Parties: CBS, INC., and Lumbermens Mutual Casualty Company, Plaintiffs-Appellants-Petitioners, v. LABOR AND INDUSTRY REVIEW COMMISSION and Richard Kamps, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 668

579 N.W.2d 668

219 Wis.2d 564

CBS, INC., and Lumbermens Mutual Casualty Company Plaintiffs-Appellants-Petitioners, v. LABOR AND INDUSTRY REVIEW COMMISSION and Richard Kamps Defendants-Respondents.

No. 96-3707.

Supreme Court of Wisconsin.

Argued April 8, 1998.

Decided June 30, 1998.

For the plaintiffs-appellants-petitioners there were briefs by James C. Ratzel and Otjen, Van Ert, Stangle, Lieb & Weir, S.C., Milwaukee and oral argument by James C. Ratzel.

For the defendant-respondent, LIRC, the cause was argued by Lowell E. Nass, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the defendant-respondent, Richard Kamps, there was a brief by Scott C. Woldt and Curtis & Neal Law Offices, Oshkosh and oral argument by Scott C. Woldt.

¶1 JANINE P. GESKE, Justice

CBS, Inc. and Lumbermens Mutual Casualty Company (collectively, CBS) seek review of a published decision of the court of appeals. ^{1 1} The court of appeals affirmed a decision of the circuit court for Waukesha County, Patrick L. Snyder, Judge, upholding the Labor and Industry Review Commission's (LIRC) determination that, based on the particular facts and circumstances, a ski injury of a traveling employee was compensable as an activity incidental to living within the meaning of Wis. Stat. § 102.03(1)(f) (1993-94). ² Because the scope of appellate review of the agency determination in this case is limited, our conclusion is narrow. Based upon the particular facts and circumstances of this case, and applying great weight deference, we conclude that LIRC's interpretation of the statute to include Richard Kamps' knee injury as an activity incidental to living within the meaning of Wis. Stat. § 102.03(1)(f) is reasonable, and that there is credible and substantial evidence to support that determination.

FACTS AND PROCEDURAL HISTORY

¶2 The following are the facts as found by LIRC. In February 1994, CBS hired Richard Kamps (Kamps) to assist in the television coverage of the 1994 Winter Olympic Games in Lillehammer, Norway. Kamps was to work as a "runner" for CBS on the bobsled and luge events from February 6 to February 27, 1994. Kamps' duties required him to leave his home and stay in the Lillehammer area during the run of the Olympics. CBS paid Kamps a daily wage, and provided meals and lodging. On February 21, CBS gave Kamps and his crew the day off from work. There were no Olympic competitions scheduled that day for Kamps and his crew to cover. During this free time, the crew members were free to do as they wished. ³ Kamps' immediate supervisor suggested that the crew go skiing as a group, which they ultimately did. CBS provided the crew with transportation and free ski lift passes. ⁴ Kamps did not need the lift passes to perform any part of his job. While skiing, Kamps fell and injured his knee.

¶3 The record contains additional facts regarding Kamps' qualifications for the CBS job which support LIRC's findings. Prior to this injury, Kamps had worked for CBS on a number of other occasions since 1989. That work included serving as a statistician, runner and stage manager for athletic broadcasts including the Super Bowl and NFL games, the World Series and playoff games. Kamps testified that his strong athletic background in all sports helped in his positions with CBS. That background included high school and college athletics, as well as snow skiing for 16 years, and water ski performances for 17 years.

¶4 The record also contains facts about Kamps' work detail for CBS at Lillehammer which support LIRC's findings. Kamps was originally hired to help cover the freestyle skiing event. At some point that assignment was changed to the bobsled and luge events. Kamps' duties as a production support person included transporting camera crews and linking those crews with the producer. Kamps identified the Olympic competitors and set up video shots.

¶5 Evidence in the record also demonstrates that during Kamps' stay in Norway as a CBS employee, CBS provided access to a swimming pool and bar for its workers. Kamps would talk with the athletes at night about the effect of the snow and ice conditions on the competition.

¶6 Following his ski injury, Kamps commenced a worker's compensation claim with the Department of Industry, Labor and Human Relations (DILHR). The administrative law judge (ALJ) dismissed Kamps' application for a hearing, ruling that snow skiing is not usual and proper customary conduct of a traveling employee. Kamps filed a petition for review by LIRC. LIRC reversed the decision of the ALJ, concluding:

The applicant was a traveling employe in a location where skiing was a reasonable form of recreation incidental to living. The activity was encouraged and supported by the employer, even to the extent of providing the applicant with a free ski lift pass. While the applicant assumed some risk by going skiing, it was not an unreasonable risk nor one unexpected or unsanctioned by the employer. Based on the particular facts and circumstances of this case, the commission finds that the applicant's knee injury is compensable as an activity incidental to living, within the meaning of Section 102.03(f), Stats. (sic)

¶7 The circuit court, as well as the court of appeals, concluded that there was credible and substantial evidence to support LIRC's findings. Accordingly, the circuit court and the court of appeals affirmed the commission's decision.

I.

¶8 Findings of fact made by LIRC when acting within its powers are conclusive in the absence of fraud. See Wis. Stat. § 102.23(1)(a). Additionally, Wis. Stat. § 102.23(6) provides:

If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

Factual findings made by the commission which are supported by credible and substantial evidence are conclusive. See Brakebush Bros., Inc. v. LIRC, 210 Wis.2d 624, 630-31, 563 N.W.2d 512 (1997). In addition, we must consider conclusive any finding by the commission based upon a reasonable inference from the credible evidence. See Sauerwein v. ILHR Dep't, 82 Wis.2d 294, 300-302, 262 N.W.2d 126 (1978); Hunter v. ILHR Dep't, 64 Wis.2d 97, 101-02, 218 N.W.2d 314 (1974); Kraynick v. Industrial Comm'n, 34 Wis.2d 107, 111, 148 N.W.2d 668 (1967). If more than one inference can reasonably be drawn from the evidence, a question of fact is presented. See Vocational, Tech. & Adult Educ. Dist. v. ILHR Dept., 76 Wis.2d 230, 240, 251 N.W.2d 41 (1977).

¶9 CBS urges us to review LIRC's interpretation of the statute, as well as its application to these facts. Normally, statutory interpretation presents a question of law which a court reviews using a de novo standard. See Hagen v. LIRC, 210 Wis.2d 12, 18, 563 N.W.2d 454 (1997) (citing Stockbridge School Dist. v. DPI, 202 Wis.2d 214, 219, 550 N.W.2d 96 (1996)). Citing our decision in Nottelson v. ILHR Department, 94 Wis.2d 106, 115-16, 287 N.W.2d 763 (1980), CBS argues that when the question presented is whether a particular set of facts meets a statutory standard, the question is one of law. LIRC and Kamps counter that in this case we are reviewing only a question of ultimate fact.

¶10 A contest over whether the question presented is one of law or fact recurs in cases brought to this court. Resolution of that question is not always easy. Indeed, our opinion in Nottelson fairly characterized the dilemma:

One 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. In many cases we have said that the determination of whether the facts fulfill a particular legal standard is a question of law.... Nevertheless, merely labeling the question as a question of law and labeling the commission's determination as a conclusion of law does not mean that the court should disregard the commission's determination. Determination[s] of ["a deviation for a private or personal purpose," or of "acts reasonably necessary for living or incidental thereto"] call[ ] for a value judgment, and judicial review of such a value judgment, though a question of law, requires the court to decide in each type of case the extent to which it should substitute its evaluation for that of the administrative agency. We have recognized that when the expertise of the administrative agency is significant to the value judgment (to the determination of a legal question), the agency's decision, although not controlling, should be given weight. (Citations and footnotes omitted).

Nottelson, 94 Wis.2d at 115-117, 287 N.W.2d 763.

¶11 When the agency uses its expertise to interpret a statute, we accord the agency one of two levels of deference, namely, "due weight," or "great weight." See Hagen, 210 Wis.2d at 18, 563 N.W.2d 454 (citing Jicha v. DILHR, 169 Wis.2d 284, 290-91, 485 N.W.2d 256 (1992)). There are four factors we use to determine whether great weight deference is appropriate:

Great weight deference to an agency's interpretation of a statute is appropriate when: (1) the agency is charged by the legislature with 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 in the application of the statute.

Id. at 18-19, 563 N.W.2d 454 (citing Harnischfeger Corp. v. LIRC, 196 Wis.2d 650, 660, 539 N.W.2d 98 (1995)).

¶12 We conclude that it is proper to apply...