GTC Auto Parts v. Labor and Industry Review Com'n

Decision Date07 June 1994
Docket NumberNo. 92-3184,92-3184
Citation516 N.W.2d 393,184 Wis.2d 450
PartiesGTC AUTO PARTS and American Mutual Insurance Co., Plaintiffs-Appellants-Petitioners, v. LABOR AND INDUSTRY REVIEW COMMISSION and James S. Bartosh, Defendants-Respondents.
CourtWisconsin Supreme Court

For the defendant-respondent (LIRC) the cause was argued by Stephen M. Sobota, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

For the defendant-respondent (Bartosh) there was a brief by Thomas A. Siedow and Carroll, Parroni, Postlewaite, Graham, Siedow & Jackson, S.C., Eau Claire and oral argument by Thomas A. Siedow.

Amicus curiae brief was filed by Joseph P. Danas, Jr. and J. Patrick Condon and Borgelt, Powell, Peterson & Frauen, S.C. for Wisconsin Ins. Alliance and Wisconsin Mfrs. and Commerce.

STEINMETZ, Justice.

This case presents one issue for review: Does the Labor & Industry Review Commission (LIRC) have the authority to order an employer to pay temporary total disability (TTD) benefits indefinitely to an injured employee without regard to the employee's medical condition? We hold that LIRC does not have this authority. Therefore, we reverse the decision of the court of appeals and remand the cause to the circuit court. We direct the circuit court to order LIRC to hold a hearing consistent with this opinion.

This appeal requires us to review an order made by LIRC. Section 102.23(1)(a), Stats., provides that when a court reviews such an order, "[t]he findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive." There is no allegation of fraud in this case. Hence, we accept the following facts found by LIRC as conclusive. 1

James S. Bartosh sustained a back injury on April 28, 1988, while in the course of his employment with GTC Auto Parts (GTC) as an automobile mechanic. Following the accident, he was able to continue working for a period of time. His condition soon deteriorated to the point that he sought medical attention. Dr. Thomas Rieser determined that Bartosh had sustained a herniated disc at the L4-5 level. Bartosh's back did not respond to conservative care. As a result, Dr. Rieser performed surgery on Bartosh on August 10, 1988. While the surgery did relieve the pain in Bartosh's right leg, it was, for the most part, unsuccessful. Following the surgery, Bartosh's low back pain became progressively worse.

In October, 1988, Dr. Rieser concluded that Bartosh would not be able to return to work as an automotive mechanic. Dr. Rieser anticipated at that time that Bartosh would have a lifting restriction of approximately 30 pounds, with no repetitive lifting or bending. The pain continued to increase in Bartosh's low back. By late October, 1988, he was unable to do the exercises recommended by his physical therapist; and by mid-December of that year he was having difficulty sitting and standing. At about this time, Bartosh began a conditioning or work-hardening program.

Following an examination on March 10, 1989, Dr. Rieser concluded that Bartosh had plateaued in his recovery and had permanent partial disability of 22 percent of the body as a whole. Dr. Rieser felt that additional surgery was not required at that time. Bartosh sought a second opinion. Dr. Boachie-Adjei, from the University of Minnesota Hospital's Low Back Center, recommended that Bartosh undergo immediate surgery involving a three-level fusion for lumbar spondylosis. After considering both opinions, Bartosh decided that because his pain was tolerable he would not undergo further surgery.

In September, 1988, GTC's insurance carrier, American Mutual Insurance Company (American Mutual), 2 hired a vocational consultant to help Bartosh find a suitable job. After Bartosh had unsuccessfully searched for a job for 60 days, the consultant recommended that Bartosh explore retraining to enhance his job skills and employment options. In late July and early August of 1989, Bartosh underwent a three-day vocational evaluation at the University of Wisconsin-Stout. The report from this evaluation indicated that Bartosh had three options--immediate employment, various forms of retraining and self-employment.

American Mutual was "not interested in funding the applicant's retraining." In addition, Bartosh expressed no interest in retraining and preferred to pursue self-employment. Accordingly, he sought assistance from the Department of Vocational Rehabilitation (DVR) to establish himself in the field of cabinet and furniture-making--an occupation with which he had previous experience. At first, he worked at this job three or four hours a day, four days a week.

When he experienced severe back and leg pain, even after reducing his work hours, he returned to Dr. Rieser for an examination. An MRI revealed no essential change in Bartosh's anatomical condition. In a letter sent to American Mutual on October 11, 1990, Dr. Rieser stated: "Based on the risks of surgery and the fact it would not necessarily guarantee his ability to work, I feel at this time I would consider him [Bartosh] totally disabled insofar as I do not feel he can continue to carry on gainful employment."

Bartosh requested a hearing to determine what disability benefits American Mutual owed him. At the time of his accident, Bartosh was earning $500 per week from GTC. Pursuant to sec. 102.43(1), Stats., 3 American Mutual paid Bartosh weekly TTD benefits of $333.33 from the time of his accident until March 10, 1989, when Dr. Rieser determined that Bartosh had plateaued in his recovery. American Mutual continued paying him benefits at this TTD rate until December 31, 1989. After that, the insurer began paying him $117 a week as permanent partial disability (PPD) benefits.

At the hearing, held on December 5, 1990, a DILHR hearing examiner found that Bartosh had been physically unable to work since at least June 1, 1990. His findings of fact stated: "If both the applicant's physical condition and the training he possesses remain unchanged, he will be permanently and totally disabled. However, neither he, nor for that matter the respondent [American Mutual], has established that the present status quo is permanent.... Should he elect not to have the three-level fusion [surgery] and should the respondent choose not to fund the vocational retraining ... then the applicant will remain totally disabled and benefits will be due accordingly." The hearing examiner ordered American Mutual to pay Bartosh benefits at the TTD rate of $289.66 "until either the death of the applicant, or an order from the department to the contrary." The hearing examiner also directed DILHR not to make an order to the contrary unless Bartosh decided to undergo surgery or American Mutual offered to fund Bartosh's retraining. 4

GTC and American Mutual filed a petition requesting that LIRC review the order of the DILHR hearing examiner. By order dated April 30, 1992, LIRC affirmed the hearing examiner's findings and order. LIRC interpreted the order as "granting applicant temporary total disability benefits (TTD) after June 1, 1990, for an indefinite period until the death of the applicant or an order from the Department to the contrary."

GTC and American Mutual then sought judicial review of LIRC's order pursuant to sec. 102.23, Stats. The circuit court for Pierce county, the Honorable Robert W. Wing, affirmed LIRC's order. The court held that LIRC had the authority to order American Mutual to pay Bartosh TTD benefits indefinitely, without regard to his medical condition. The court of appeals affirmed the order of the circuit court, 178 Wis.2d 129, 503 N.W.2d 363.

GTC and American Mutual petitioned for a review of the court of appeals' decision. We accepted this petition and now reverse the decision of the court of appeals. We remand the cause to the circuit court and direct that court to order LIRC to hold a hearing consistent with this opinion.

This review requires us to examine LIRC's authority to order an employer to pay disability benefits to an injured employee. LIRC "has only such authority as is granted by statute." Levy v. Industrial Comm., 234 Wis. 670, 675, 291 N.W. 807 (1940). LIRC derives its authority to order the payment of temporary disability benefits from sec. 102.43, Stats., 5 and permanent disability benefits from sec. 102.44. 6 Temporary disability benefits compensate injured employees for lost wages while they recover from their injuries. See sec. 102.43. Permanent disability benefits compensate injured employees for lifelong impairment of bodily function and lost earning capacity. See sec. 102.44.

LIRC has ordered American Mutual to pay Bartosh TTD benefits until his death or until DILHR makes an order to the contrary. To determine if LIRC has the authority to make this order, we must interpret sec. 102.43, Stats., the temporary disability benefit statute. The interpretation of a statute is a question of law that courts generally review de novo. Lisney v. LIRC, 171 Wis.2d 499, 505, 493 N.W.2d 14 (1992). "Courts, however, frequently refrain from substituting their interpretation of a statute for that of the agency charged with the administration of a law." Id. LIRC's experience, competence and specialized knowledge regarding the Worker's Compensation Act would ordinarily entitle its interpretation to great weight. See Jicha v. DILHR, 169 Wis.2d 284, 290, 485 N.W.2d 256 (1992). We find, however, that in this case LIRC's interpretation of the relevant statutes "directly contravenes the words of the statute [and] is clearly contrary to legislative intent...." See Lisney, 171 Wis.2d at 506, 493 N.W.2d 14; see also sec. 102.23(1)(e). Therefore, we owe no deference to LIRC's interpretation of sec. 102.43. Lisney, 171 Wis.2d at 506, 493 N.W.2d 14.

"The objective in construing a statute is to discern the intent of the legislature ... and the primary source to be used is the language of the statute itself."...

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