McDonough v. State Dept. of Workforce Development, 97-3711-FT

Decision Date30 June 1999
Docket NumberNo. 97-3711-FT,97-3711-FT
Citation227 Wis.2d 271,595 N.W.2d 686
PartiesJohn W. McDONOUGH, D.O., Plaintiff-Appellant-Petitioner, v. STATE of Wisconsin DEPARTMENT OF WORKFORCE DEVELOPMENT, Labor & Industry Review Commission, Wausau Business Insurance, and City of Wisconsin Rapids, Defendants-Respondents.
CourtWisconsin Supreme Court

For the plaintiff-appellant-petitioner there were briefs by Mark S. Zimmer and Hill, Glowacki, Jaeger, Reiley, Zimmer Hughes, Madison and oral argument by Mark S. Zimmer.

For the defendant-respondent, Department of Workforce Development, the cause was argued by Lowell E. Nass, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶1 WILLIAM A. BABLITCH, J

John W. McDonough, D.O. (McDonough) requests review of a court of appeals' decision which held that an appeal of a necessity of treatment order must be served on the Department of Workforce Development (Department) and that service on the Labor and Industry Review Commission (Commission) was insufficient. The issue presented is whether McDonough, appealing a necessity of treatment order of the Department, can achieve service by serving the Commission rather than the Department with enough copies of the summons and complaint as there are defendants. We hold that, given the ambiguity presented by the interaction between the two statutes at issue, service for appeals from Department necessity of treatment orders can be achieved by timely serving either the Department or the Commission with enough copies of the summons and complaint as there are defendants. Because McDonough served enough copies of the summons and complaint with the Commission as there are defendants, we conclude that he achieved service. Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for proceedings on the merits.

¶2 McDonough provided medical services for a City of Wisconsin Rapids' (Wisconsin Rapids) employee who injured his shoulder while at work on November 17, 1995. Because the employee was injured while at work, his injuries were compensable under workers compensation, Wis. Stat. ch. 102. From January 3, 1996 through June 21, 1996, McDonough provided medical treatment to the Wisconsin Rapids employee. McDonough submitted a claim to Wisconsin Rapids' workers compensation insurance carrier, Wausau Business Insurance Company (Wausau Insurance). Wausau Insurance refused to pay a portion of the claim, asserting that the treatment provided by McDonough after February 28, 1996, was not medically necessary.

¶3 In September 1996, McDonough filed a necessity of treatment dispute request with the Department 1 pursuant to Wis. Stat. § 102.16(2m) (1993-94). 2 On March 31, 1997, the Department determined that the services provided by McDonough were not medically necessary. The order stated that it would become final within 30 days unless appealed to the circuit court pursuant to Wis. Stat. § 102.23(1)(a).

¶4 McDonough filed a summons and complaint with the Wood County Circuit Court on April 28, 1997, within the 30 days allowed to seek judicial review. One copy of the authenticated summons and complaint was personally served on a Program Assistant in the Office of the Secretary of the Department on April 29, 1997; four copies were personally served on the Chairperson of the Commission on April 29, 1997; one copy was served by sheriff's service on the City Clerk of Wisconsin Rapids on April 30, 1997; and one copy was served by sheriff's service on a employee of the Legal Support Office at Wausau Insurance on May 5, 1997.

¶5 The Department, Wisconsin Rapids, and Wausau Insurance moved to dismiss McDonough's claim for lack of subject matter jurisdiction, or competency to proceed, arguing that Wausau Insurance was not served with an authenticated summons and complaint within 30 days from the issuance of the Department's decision and order dated March 31, 1997, as required by Wis. Stat. § 102.23(1)(a). They argued that Wausau Insurance was a necessary and adverse party, and therefore, because McDonough failed to serve Wausau Insurance within 30 days after the Department's decision and order, the court had no subject matter jurisdiction to proceed. McDonough argued that service had been achieved on Wausau Insurance through timely service on the Commission, as required by the plain language of § 102.23(1)(b).

¶6 The Wood County Circuit Court, the Honorable Dennis D. Conway presiding, granted the defendants' motions and dismissed the case with prejudice. The circuit court determined that a necessary and adverse party, Wausau Insurance, had not been served within 30 days of the Department's order as required by Wis. Stat. § 102.23. Therefore, the circuit court determined that it did not have subject matter jurisdiction or competency to proceed.

¶7 McDonough appealed the circuit court's judgment pursuant to Wis. Stat. § 102.25. In an unpublished per curiam opinion, the court of appeals affirmed the circuit court's dismissal of McDonough's case. 3 The court of appeals determined that "department" should be read in place of "commission" throughout Wis. Stat. § 102.23 when a party is appealing a Department decision and order under Wis. Stat. § 102.16(2m)(e).

¶8 McDonough petitioned this court for review pursuant to Wis. Stat. § 808.10 and § (Rule) 809.62, which we granted.

¶9 The issue presented is whether a party appealing a necessity of treatment order of the Department pursuant to Wis. Stat. § 102.16(2m)(e) can achieve service by serving the Commission rather than the Department with enough copies of the summons and complaint as there are defendants. Section 102.16(2m)(e) states that judicial review of Department orders must be done in the same manner that compensation claims are reviewed under Wis. Stat. § 102.23. This issue requires that we interpret §§ 102.16(2m)(e) and 102.23(1)(b) and the interaction of these two statutes.

¶10 Statutory interpretation is a question of law that this court reviews de novo. Jungbluth v. Hometown, Inc., 201 Wis.2d 320, 327, 548 N.W.2d 519 (1996). The goal of statutory interpretation is to discern the intent of the legislature. Id. We turn first to the plain language of the statute. Hemberger v. Bitzer, 216 Wis.2d 509, 517, 574 N.W.2d 656 (1998). If the plain language is ambiguous, we rely on extrinsic aids such as legislative history, scope, purpose, subject matter and context to determine the legislature's intent. Id.

¶11 Wisconsin Stat. § 102.16(2m)(e) provides: "A health service provider, insurer or self-insured employer that is aggrieved by a determination of the department under this subsection [regarding challenging a necessity of treatment dispute order] may seek judicial review of that determination in the same manner that compensation claims are reviewed under s. 102.23." At the direction of § 102.16(2m)(e), we turn to Wis. Stat. § 102.23 which provides for judicial review. The section pertinent to the issue in this case is § 102.23(1)(b):

(b) In such an action a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.

¶12 The plain language of Wis. Stat. § 102.16(2m)(e) directs parties to rely on Wis. Stat. § 102.23 to appeal a Department necessity of treatment order to the circuit court. The plain language of § 102.23 requires that service be achieved by serving a "commissioner" with enough copies of the summons and complaint as there are defendants.

¶13 Although the statutes are plain on their face, statutes may be rendered ambiguous by their interaction with other statutes. State v. White, 97 Wis.2d 193, 198, 295 N.W.2d 346 (1980). In this case, ambiguity is created by the interaction between Wis. Stat. §§ 102.16(2m)(e) and 102.23(1)(b). Section 102.16(2m)(e) provides for judicial review of a Department order regarding a necessity of treatment dispute. However, such judicial review must be achieved "in the same manner that compensation claims are reviewed under s. 102.23." Section 102.23 provides for judicial review of Commission orders, not Department orders. To resolve the ambiguity created by the interaction between §§ 102.16(2m)(e) and 102.23(1)(b), we rely on extrinsic aids.

¶14 McDonough relies on the plain language of Wis. Stat. § 102.23 to argue the statute allows that service in an appeal of a Department order can be achieved by serving the Commission with enough copies of the summons and complaint as there are defendants. The Department argues that Wis. Stat. §§ 102.16(2m)(e) and 102.23(1)(b) must be read in pari materia. That is, because the statutes relate to the same subject matter, they should be read together. When read together, the Department asserts, the word "department" should be read into § 102.23 where "commission" is used.

¶15 We agree, to some extent, with both parties. We hold that, given the ambiguity presented by the interaction of Wis. Stat. §§ 102.16(2m)(e) and 102.23(1)(b), service for appeals under § 102.16(2m)(e) can be achieved by timely serving either the Department or the Commission with enough copies of the summons and complaint as there are defendants. See Wisconsin Finance v. Garlock, 140 Wis.2d 506, 518, 410 N.W.2d 649 (Ct.App.1987) (construing Wis. Stat. §§ 180.11(2) and 801.11(5)(b) (1982) as providing "alternative options for a party seeking substitute service on a corporation if personal service is unavailable under sec. 801.11(5)(a).").

¶16 We agree with the Department that when two statutes deal with the same subject matter, we read them in pari materia....

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