County of Dane v. L.I.R.C

• Decision Date: 29 November 2007
• Docket Number: No. 2006AP2695.,2006AP2695.
• Citation: 744 N.W.2d 613,2007 WI App 262
• Parties: COUNTY OF DANE, Plaintiff-Appellant,<SMALL><SUP>&#x2020;</SUP></SMALL> v. LABOR AND INDUSTRY REVIEW COMMISSION and Gloria N. Graham, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

744 N.W.2d 613

2007 WI App 262

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

No. 2006AP2695.

Court of Appeals of Wisconsin.

Submitted on Briefs January 26, 2007.

Opinion Filed November 29, 2007.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Timothy J. Yanacheck of Bell, Gierhart & Moore, S.C., Madison.

On behalf of the defendant-respondent Labor and Industry Review Commission, the cause was submitted on the brief of David A. Hart, Assistant Attorney General, and J.B. Van Hollen, Attorney General.

On behalf of the defendant-respondent Gloria N. Graham, the cause was submitted on the brief of Raymond G. Clausen of Clausen & Severson, Madison.

Before DYKMAN, VERGERONT and LUNDSTEN, JJ.

¶ 1 LUNDSTEN, J

Under Wisconsin worker's compensation law, may an injured worker receive a "disfigurement" award based on a limp? The Labor and Industry Review Commission (LIRC) has previously answered this question twice—in 1986 answering yes, and in 1994 answering no. In its 2006 decision in this case, LIRC answered the question yes. Dane County contends the answer should be no, and appeals the circuit court's order upholding LIRC's decision. We consider whether, in light of LIRC's changes in position on the issue since 1986, we should accord any deference to LIRC's current decision. We conclude that LIRC's yes answer in this case is entitled to due weight deference and is a reasonable interpretation of the law. We further conclude that LIRC's previous no answer is not a more reasonable interpretation. Accordingly, we affirm the circuit court's order.¹

Background

¶ 2 In July 2001, Gloria Graham slipped and fell on a wet floor while at work. One of her legs twisted behind her back and she sustained an injury to her knee. As a result, she has a limp, persistent pain, strength loss in her joints, and poor balance when walking without a cane.

¶ 3 Graham's limp was described by the administrative law judge (ALT) as "a mixture of a limp and a foot drag." The ALJ stated that "watching her walking with such difficulty was painful."

¶ 4 The County conceded worker's compensation liability and paid certain benefits to Graham, including "permanent partial disability for 25 percent loss at knee." The County and Graham disputed, however, whether Graham was entitled to an additional benefit for disfigurement based on her limp. The operative statute, Wis. STAT. § 102.56(1) (2005-06),² provides, in relevant part, as follows:

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 . . . . 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.

¶ 5 The ALJ ruled in Graham's favor, concluding that the look of her legs and her altered gait would negatively affect her potential employability and the wage that she will earn. LIRC affirmed the AU, adopting the ALJ's findings and order. The circuit court affirmed LIRC's order, and the County appealed.

¶ 6 We reference additional facts as needed below.

Discussion

A. Level Of Deference

¶ 7 LIRC concluded here that a limp may be a "disfigurement" under Wisconsin worker's compensation law. We review LIRC's decision, not the circuit court's. Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶ 26, 303 Wis.2d 514, 735 N.W.2d 477. The first question we must decide is what level of deference applies to LIRC's interpretation of Wis. STAT. § 102.56(1) to allow a disfigurement award based on a limp.

¶ 8 The supreme court has summarized the three levels of deference as follows:

A reviewing court accords an interpretation of a statute by an administrative agency one of three levels of deference—great weight, due weight or no deference—based on the agency's expertise in the area of law at issue.

An agency's interpretation of a statute is entitled to great weight deference when: (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 in the application of the statute.

We grant an intermediate level of deference, due weight, "where an agency has some experience in the area, but has not developed any particular expertise in interpreting and applying the statute at hand" that would put the agency in a better position to interpret the statute than a reviewing court.

The deference allowed an administrative agency under due weight is not so much based upon its knowledge or skill as it is on the fact that the legislature has charged the agency with the enforcement of the statute in question. [Under the due weight standard] . . ., a court will not overturn a reasonable agency decision that comports with the purpose of the statute unless the court determines that there is a more reasonable interpretation available.

We apply de novo review when "there is no evidence that the agency has any special expertise or experience interpreting the statute[,] ... the issue before the agency is clearly one of first impression, or ... the agency's position on an issue has been so inconsistent so as to provide no real guidance."

Stoughton Trailers, 2007 WI 105, ¶¶ 26-29 (citations omitted).

¶ 9 The County concedes that LIRC would ordinarily be entitled to great weight deference on an issue like the one here. The County argues, however, that LIRC "forfeited" its entitlement to great weight deference by departing from its previous interpretation of WIS. STAT. § 102.56(1) in Spence v. POJA Heating & Sheet Metal Co., WC Claim No. 88-018562 (LIRC, Jan. 20, 1994). In addition, the County argues that Spence is a longstanding construction and, therefore, must be accorded great weight deference. The County cites to case law stating that "[l]ong-standing administrative construction of a statute is accorded great weight in the determination of legislative intent because the legislature is presumed to have acquiesced in that construction if it has not amended the statute.'" Hacker v. DHSS, 197 Wis.2d 441, 460, 541 N.W.2d 766 (1995) (quoting Layton Sch. of Art & Design v. WERC, 82 Wis.2d 324, 340, 262 N.W.2d 218 (1978)). We are not persuaded.

¶ 10 In its decision, LIRC acknowledged that its conclusion here is inconsistent with its previous decision in Spence. In Spence, LIRC disallowed a disfigurement award based on a limp, reasoning that disfigurement "historically" meant injuries resulting in amputation, scars, or burns. LIRC concluded here, however, that it had erred in Spence because nothing in Wis. STAT § 102.56(1) limits disfigurement to amputations, scars, and burns. Instead, LIRC explained, "consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment." LIRC noted that its conclusion here is consistent with Jorgensen v. Wisconsin Department of Veterans Affairs, WC Claim No. 84-27383 (LIRC, Oct. 10, 1986), a limp case predating Spence that allowed a disfigurement award based, in part, on the limp.³

¶ 11 The County's argument is flawed because Spence itself is a departure from LIRC's prior decision in Jorgensen. By the County's logic, LIRC forfeited any entitlement to great weight deference when it decided. Spence. Moreover, the case law on which the County relies is inapplicable. Those cases do not involve situations in which an agency has changed position on an issue. See Hacker, 197 Wis.2d at 460, 541 N.W.2d 766; Layton Sch. of Art, 82 Wis.2d at 340, 262 N.W.2d 218.

¶ 12 LIRC and Graham argue that LIRC's present interpretation of the statute is entitled to great weight deference. We focus on the second of the four requirements for great weight deference—, that an agency interpretation is one of long standing—and note that LIRC and Graham offer no argument explaining why LIRC's present interpretation of WIS. STAT. § 102.56(1) is one of long standing even though it represents a change from Spence, LIRC's previous decision on the topic. We perceive no reason why LIRC's present interpretation should be treated as one of long standing.⁴ Consequently, we turn our attention to whether due weight deference or no deference applies.

¶ 13 Neither party provides developed argument regarding what level of deference we should apply if we do not apply great weight deference to the decision of each party's choosing.⁵ Accordingly, we look to three principles from case law that appear to be most applicable.

¶ 14 First, courts ordinarily apply due weight deference when an agency has "`some experience in the area, but has not developed any particular expertise in interpreting and applying the statute at hand.'" Stoughton Trailers, 2007 WI 105, ¶ 28 (citation omitted). Here, LIRC easily meets the "some experience" standard. LIRC has significant experience in interpreting WIS. STAT. § 102.56(1). The County does not argue otherwise.

¶ 15 Second, the decision to accord an agency due weight deference is not so much based on the agency's knowledge or skill as it is on the fact that the legislature has charged an agency with enforcement of the statute. Stoughton Trailers, 2007 WI 105, ¶ 28. There is no dispute that LIRC is an agency charged with enforcement of the statute.

¶ 16 Last, courts give no deference to an agency's conclusion of law when the agency's position on the issue "`has been so inconsistent so as, to provide no real guidance.'" Id., ¶ 29 (citation omitted). Notably, the County does not argue that LIRC's position has been "so inconsistent so as to...