Daimlerchrysler v. Lirc

• Decision Date: 02 February 2007
• Docket Number: No. 2005AP544.,2005AP544.
• Parties: DAIMLERCHRYSLER c/o ESIS, Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION and Glenn May, Defendants-Respondents.
• Court: Wisconsin Supreme Court

727 N.W.2d 311

2007 WI 15

DAIMLERCHRYSLER c/o ESIS, Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION and Glenn May, Defendants-Respondents.

No. 2005AP544.

Supreme Court of Wisconsin.

Argued September 13, 2006.

Decided February 2, 2007.

For the plaintiffs-appellants there were briefs by Thomas M. Rohe and Otjen, Van Ert & Weir, SC, Milwaukee, and oral argument by Thomas M. Rohe.

For the defendant-respondent Labor and Industry Review Commission there was a brief and oral argument by Jeffrey J. Shampo, Madison.

For the defendant-respondent Glenn May there was a brief by Richard A. Fortune and Fortune & McGillis, S.C., Racine, and oral argument by Richard A. Fortune.

¶ 1 N. PATRICK CROOKS, J

This case is before this court on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2003-04).¹ DaimlerChrysler appeals an order of the Circuit Court for Kenosha County, Honorable Wilbur W. Warren, Judge, affirming a worker's compensation decision of the Wisconsin Labor and Industry Review Commission (the LIRC). The LIRC determined that the defendant-respondent, Glenn May (May), was entitled to a minimum of 10 percent disability for each of two anterior cruciate ligament (ACL) repairs pursuant to Wis. Admin. Code § DWD 80.32(4) (Sept., 2005)², resulting in a 20 percent permanent partial disability (PPD) award.

¶ 2 We conclude that the LIRC's interpretations of Wis. Admin. Code § DWD 80.32(4) and Wis. Stat. § 102.18(1)(d) are entitled to controlling deference and great weight deference, respectively, and that the LIRC's award of 20 percent permanent partial disability to May should be upheld.

¶ 3 The certified question before this court is whether the LIRC may interpret Wis. Admin. Code § DWD 80.32(4) to award a cumulative minimum PPD for multiple ligament repair procedures, where the resulting award is higher than the highest medical estimate of PPD in evidence. We answer this question in the affirmative. We hold that § DWD 80.32(4) may be interpreted to award a cumulative minimum PPD for multiple ligament repair procedures, even though the award by the LIRC is higher than the highest medical estimate in the record. We further hold that Wis. Stat. § 102.18(1)(d) does not prohibit determinations in excess of the highest medical assessment in evidence, but rather creates a presumption of reasonableness for PPD awards that fall within the prescribed range. We therefore affirm the decision of the circuit court which affirmed the LIRC's award of 20 percent PPD to May.

I

¶ 4 On April 19, 1999, May, an employee of DaimlerChrysler, was injured at work when an engine that he was carrying hit his left knee. The next day, May went to see Dr. Aftab Ansari, an orthopedic surgeon. May underwent ACL reconstruction surgery by Dr. Ansari on May 5, 1999. May continued to experience swelling, pain, and stiffness after the surgery. On April 24, 2001, Dr. Ansari examined May and noted atrophy to his left quadriceps. At that time, Dr. Ansari assessed 15 percent PPD of May's left knee.

¶ 5 On July 27, 2001, Dr. Ansari performed a second ACL reconstruction surgery. The second surgery improved May's knee substantially, and he returned to work in October 2001 without further problems. In April 2002 Dr. Ansari was given a copy of Wis. Admin. Code § DWD 80.32(4) and assessed the minimum 10 percent PPD of May's left knee. Doctor Ansari reported that May had reached a healing plateau, and further indicated that May's PPD had not changed due to the second ACL reconstruction. DaimlerChrysler paid May 10 percent PPD, which amounted to $7,820. May then filed a claim for additional compensation with the Department of Workforce Development (the DWD). Administrative Law Judge (ALJ) Sherman Mitchell awarded May 25 percent PPD, the amount determined by adding together Dr. Ansari's assessments from each of the two surgeries.

¶ 6 In reaching his conclusion, the ALJ applied Hellendrung v. Wal Mart, Claim No. 1999039147 (LIRC Feb. 23, 2001). In Hellendrung, the LIRC ruled that the note to Wis. Admin. Code § DWD 80.32(1) indicates that the same principles that are applied to surgical procedures to the back, also apply to surgical procedures to the knee, and that additional ratings and permanent disability will be given for cumulative surgeries. Id.

¶ 7 The worker's compensation applicant in Hellendrung had a long-standing history of knee problems prior to being injured at work. Following his work injury, the applicant sought treatment and underwent partial meniscectomy surgery. Id. The applicant's treating physician concluded that there was a causal relationship between the applicant's need for surgery and the work incident. Id. The ALJ awarded the applicant an additional 5 percent PPD of the knee. The employer argued in its petition to the LIRC for commission review that the language of Wis. Admin. Code § DWD 80.32(1) assumes that the member was previously without disability, and that appropriate reduction should have been made for any preexisting disability. However, the LIRC affirmed the ALJ and concluded in Hellendrung that a footnote to § DWD 80.32(1) indicates that the same principle that is applied to an award for surgical procedures to the back is also applied in the case of procedures to the knee. Id. The LIRC concluded that § DWD 80.32(11) clearly contemplates that additional ratings and permanent disability will be given for cumulative surgeries to the back, and likewise to the knee, and that a reduction for any preexisting disability is most appropriately applied to previous losses of range of motion and amputations, but not to the surgical procedures listed in § DWD 80.32. Id.

¶ 8 In the present case, DaimlerChrysler petitioned the LIRC for review, alleging error by the ALJ. The LIRC affirmed in part and reversed in part, reaffirming its decision in Hellendrung, and concluding that the evidence did not establish that May was entitled to 25 percent PPD because Dr. Ansari stated, after the second ACL surgery, that May had regained full strength in his knee and had 10 percent PPD. The LIRC assessed 20 percent PPD to the knee, concluding that Wis. Admin. Code § DWD 80.32 provides a 10 percent minimum for an ACL reconstruction and that, because May underwent two ACL surgeries, he was entitled to a minimum 10 percent recovery for each knee surgery.

¶ 9 DaimlerChrysler then brought an action for judicial review under Wis. Stat. § 102.23. The Kenosha County Circuit Court, Judge Wilbur W. Warren, affirmed the LIRC's decision. DaimlerChrysler appealed, the court of appeals certified the matter to this court, and we accepted the certification.

II

¶ 10 Our analysis in this case focuses on the standard of review. In order to answer the certified question in this case, it is necessary for this court to interpret both an administrative rule, Wis. Admin. Code § DWD 80.32, especially Wis. Admin. Code § DWD 80.32(4), and a statute, Wis. Stat. § 102.18(1)(d). The application of an administrative rule and the application of a statute to undisputed facts are questions of law that we review de novo.³ Garcia v. Mazda Motor of Am., Inc., 2004 WI 93, ¶ 7, 273 Wis. 2d 612, 682 N.W.2d 365; Winters v. Winters, 2005 WI App 94, ¶ 7, 281 Wis.2d 798, 699 N.W.2d 229. Further, when interpreting administrative regulations, we use the same rules of interpretation as we apply to statutes. State v. Busch, 217 Wis.2d 429, 441, 576 N.W.2d 904 (1998) (citations omitted). When an administrative agency promulgates regulations pursuant to a power delegated by the legislature, we construe those regulations "together with the statute to make, if possible, an effectual piece of legislation in harmony with common sense and sound reason." Id.

¶ 11 Here, we review the decision of the LIRC. Brauneis v. LIRC, 2000 WI 69, ¶ 14, 236 Wis.2d 27, 612 N.W.2d 635. An administrative agency's interpretation of its own rules or regulations is controlling unless "plainly erroneous or inconsistent with the regulations." Busch, 217 Wis.2d at 441, 576 N.W.2d 904 (citations omitted); see also RTE Corp. v. DILHR, 88 Wis.2d 283, 290, 276 N.W.2d 290 (1979). Here, the LIRC reviewed a rule promulgated by the DWD, not the LIRC's own rule. The LIRC is an adjudicative body charged only with resolving certain disputes. Racine Harley-Davidson, Inc. v. State of Wis. Div. of Hearings and Appeals, 2006 WI 86, ¶ 35, 292 Wis.2d 549, 717 N.W.2d 184. The LIRC is an independent agency of the State of Wisconsin and, although it is not an organizational subdivision of the DWD, it is "`attached'" to the DWD for administrative purposes only.⁴ The LIRC does not make rules, except for rules governing its own procedures. Wis. Stat. § 103.04(2).

¶ 12 The LIRC was created for the purpose of reviewing claims issued by ALJs in three divisions of the DWD: Unemployment Insurance, Worker's Compensation, and Equal Rights.⁵ Pursuant to Wis. Stat. § 102.18(2)⁶, the DWD maintains on its staff ALJs to hear and decide disputed claims. When decisions of ALJs are appealed in each of the three DWD divisions, the LIRC reviews the evidence submitted at the hearing, considers the parties' arguments, consults with the ALJs if necessary, and then issues a written decision.⁷ The LIRC was charged by the legislature with the duty of reviewing the evidence and affirming, reversing, setting aside, or modifying those findings or orders, in whole or in part. Wis. Stat. § 102.18(3).

¶ 13 We conclude that the LIRC's interpretation of Wis. Admin. Code § DWD 80.32(4) is entitled to controlling weight deference, because the LIRC reasonably interpreted a rule adopted by the DWD, the LIRC's interpretation was not inconsistent with the language of the rule or clearly erroneous, and the LIRC was charged by the legislature with the duty of reviewing decisions issued by ALJs in the Worker's Compensation Division of the DWD, and does so frequently. Wis. Stat. § 102.18(3). See also RTE Corp., 88 Wis.2d at 290, 276 N.W.2d...