County of Dane v. Labor and Industry Review

• Decision Date: 23 January 2009
• Docket Number: No. 2006AP2695.,2006AP2695.
• Citation: 2009 WI 9,759 N.W.2d 571
• Parties: COUNTY OF DANE, Plaintiff-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION and Gloria N. Graham, Defendants-Respondents.
• Court: Wisconsin Supreme Court

759 N.W.2d 571

2009 WI 9

COUNTY OF DANE, Plaintiff-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION and Gloria N. Graham, Defendants-Respondents.

No. 2006AP2695.

Supreme Court of Wisconsin.

Argued September 10, 2008.

Decided January 23, 2009.

For the plaintiff-appellant-petitioner there were briefs filed by Timothy J. Yanacheck and Bell, Gierhart & Moore, S.C., Madison, and oral argument by Timothy J. Yanacheck.

For the defendant-respondent Labor Industry Review Commission, there was a brief and oral argument by David A. Hart, III, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

For the defendant-respondent Gloria N. Graham, there was a brief by Raymond G. Clausen and Clausen & Severson, Madison, and oral argument by Raymond G. Clausen.

An amicus curiae was filed by Steven D. Hintzeman, Debra A. DeLeers, and Stellpflug Law, S.C., De Pere, on behalf of the Wisconsin Association for Justice.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

We review a decision of the court of appeals¹ affirming the circuit court's decision,² which affirmed the Labor and Industry Review Commission's (LIRC) order directing that Gloria Graham (Graham) is eligible to receive a statutory award for permanent disfigurement under Wisconsin worker's compensation law, Wis. Stat. § 102.56(1) (2005-06)³ even though she suffered no visible burns, scars or amputations. In affirming LIRC's interpretation of § 102.56(1) and the corresponding award of compensation to Graham, the circuit court held that LIRC was entitled to great weight deference, while the court of appeals held that due weight deference was appropriate.

¶ 2 The dispositive issue in this case is whether the result of Graham's workplace injury is compensable under Wis. Stat. § 102.56(1). We conclude that LIRC's interpretation of § 102.56(1) is entitled to no deference due to its inconsistent past interpretations that provide no real guidance, but we nevertheless affirm LIRC's order directing that Graham is eligible to receive an award under § 102.56(1) based on the statute's plain meaning as applied to the result of Graham's workplace injury. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 3 The following undisputed facts are based on the findings of the administrative law judge (ALJ) that LIRC adopted, unless otherwise noted. Graham began working for Dane County as a food service worker at the Dane County Consolidated Food Services Kitchen at Badger Prairie on April 23, 2001. She previously had been employed as a cook, a hotel maid, a paper delivery person, a textile worker and a companion for elderly and disabled persons. On July 9, 2001, Graham slipped and fell on a wet floor while working at the County's kitchen, and her leg was twisted behind her back resulting in a significant knee injury.

¶ 4 On September 25, 2001, Graham underwent arthroscopic surgery and other medical procedures to her knee. Her post-operative recovery did not go well, and she was left with persistent pain and significant strength loss in her knee. In addition, she suffered a loss of balance and can no longer walk without a cane. Graham now walks with a severely pronounced, foot-dragging limp. She is currently unemployed and is actively seeking employment without success.

¶ 5 Dane County agreed to pay Graham temporary disability, medical expenses and 25 percent permanent partial disability for loss of function at the knee. Graham also sought to recover additional compensation, claiming she had sustained a permanent disfigurement under Wis. Stat. § 102.56(1). Section 102.56(1) provides in relevant part:

If an employee is so permanently disfigured as to occasion potential wage loss, the department may allow such sum as it deems just as compensation therefor.... In determining the potential for wage loss and the sum awarded, the department shall take into account the age, education, training and previous experience and earnings of the employee, the employee's present occupation and earnings and likelihood of future suitable occupational change. Consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. The department shall also take into account the appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited.

¶ 6 Dane County argued that historically, only those injuries resulting in visible amputations, scarring or burns constituted disfigurements under Wis. Stat. § 102.56(1), based on LIRC's decision in Spence v. POJA Heating & Sheet Metal Co., Claim No. 88-018562 (LIRC Jan. 20, 1994). In Spence, LIRC held that Spence's limp was not a disfigurement under § 102.56(1) because scarring and swelling were visible only when he removed his shoe and sock, and that Wis. Stat. § 102.52(12), under which Spence had already recovered for his limb's loss of functionality, was the sole avenue of recovery. Based on Spence, Dane County argued that since Graham did not have visible scarring when fully clothed, her limp was not compensable as a disfigurement under § 102.56(1).

¶ 7 In response, Graham looked to an earlier LIRC decision, Jorgensen v. Wisconsin Department of Veterans Affairs, Claim No. 84-27383 (LIRC Oct. 10, 1986), for support. In Jorgensen, LIRC held that Jorgensen was disfigured under Wis. Stat. § 102.56(1) because she had three separate scars on her ankle, had to wear a brace and walked with a limp. Since this would affect Jorgensen's future employability, LIRC awarded $10,000 in disfigurement compensation. Graham argued that LIRC's interpretation of the statute in Jorgensen mandated the conclusion that her limp be considered a disfigurement.⁴

¶ 8 After considering these arguments, the ALJ made findings that LIRC adopted. The ALJ found that Graham's "walk was a mixture of a limp and a foot drag, her legs looked imperfect and asymmetrical, and watching her [walk] with such difficulty was painful." In addition, the ALJ found that "[t]he look of her legs and her altered gait will negatively affect her potential employability and the wage she will earn." Based on these findings, LIRC concluded that Graham's injury was compensable under Wis. Stat. § 102.56(1), and she was awarded $15,000.

¶ 9 LIRC also expressly reversed its decision in Spence, reaffirmed its conclusions in Jorgensen and rejected the argument that disfigurement awards are limited to visible burns, scars and amputations.⁵ LIRC explained that in tracking the language of Wis. Stat. § 102.56(1), the focus of the inquiry should be on whether the disfigurement occurs on those areas of the body that are exposed in the normal course of employment and whether the injury occasions potential wage loss.

¶ 10 The circuit court, in reviewing LIRC's decision, determined that the commission's interpretation of Wis. Stat. § 102.56(1) was entitled to great weight deference, even though all of the criteria⁶ necessary for such deference were not present. Applying this standard of review, the circuit court affirmed LIRC's order, holding that LIRC's interpretation advanced the statute's purpose, was not unreasonable, and was not contrary to the plain language of § 102.56(1). The court further supported its conclusion by noting that nothing in § 102.56(1) limits disfigurement awards to those situations involving only visible burns, scars or amputations.

¶ 11 The court of appeals, in affirming LIRC's and the circuit court's decisions, differed from the circuit court in its analysis of the level of deference due LIRC's interpretation of Wis. Stat. § 102.56(1). County of Dane v. LIRC, 2007 WI App 262, ¶ 18, 306 Wis.2d 830, 744 N.W.2d 613. Because LIRC's interpretation was not one of long standing, which is a prerequisite for great weight deference, LIRC was not entitled to great weight deference. Id., ¶ 12. However, the court of appeals determined that LIRC's interpretation was entitled to due weight deference, because LIRC is the agency charged with enforcement of the worker's compensation statute, its change in position in classifying a limp as a statutory disfigurement under § 102.56(1) was clearly explained, and it acknowledged its prior decisions in Jorgensen and Spence. Id., ¶¶ 15, 17-18.

¶ 12 Applying due weight deference, the court of appeals held that LIRC's interpretation was reasonable under the plain language of Wis. Stat. § 102.56(1) and was consistent with the statutory purpose. Id., ¶¶ 20-24. In considering whether Dane County's interpretation, which relied on Spence, was more reasonable, the court of appeals held that it was not, noting that there was no basis for Spence's declaration that disfigurement historically has been limited to visible burns, scars or amputations. Id., ¶ 26. Since LIRC's interpretation was reasonable, and the County's interpretation was not more reasonable, LIRC's interpretation was upheld, and the court of appeals affirmed the grant of disfigurement compensation to Graham under § 102.56(1). Id., ¶ 27.

¶ 13 We granted review and now affirm.

II. DISCUSSION

A. Standard of Review

¶ 14 In reviewing this worker's compensation claim, we review LIRC's decision, not the decisions of the court of appeals or the circuit court. Liberty Trucking Co. v. DILHR, 57 Wis.2d 331, 342, 204 N.W.2d 457 (1973). Here, LIRC interpreted Wis. Stat. § 102.56(1). The construction of a statute and its application to undisputed facts are questions of law that we generally review independently. Watton v. Hegerty, 2008 WI 74, ¶ 6, 311 Wis.2d 52, 751 N.W.2d 369 (citing Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110). However, depending on the circumstances, an agency's interpretation of a statute is entitled to one of the following three levels of deference: great weight deference, due weight deference or no deference. Clean Wis., Inc. v. Pub. Serv. Comm'n of Wis., 2005...