Sommer v. Pirsch & Sons Co.

• Decision Date: 30 March 1988
• Citation: 143 Wis.2d 903,423 N.W.2d 883
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. JEFFREY L. SOMMER, Plaintiff-Respondent, v. PETER PIRSCH & SONS COMPANY and INSURANCE COMPANY OF NORTH AMERICA, Defendants-Appellants, LABOR AND INDUSTRY REVIEW COMMISSION, Defendant. 87-1333.
• Court: Wisconsin Court of Appeals

Page 883

423 N.W.2d 883

143 Wis.2d 903

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

JEFFREY L. SOMMER, Plaintiff-Respondent, v. PETER PIRSCH & SONS COMPANY and INSURANCE COMPANY OF NORTH AMERICA, Defendants-Appellants LABOR AND INDUSTRY REVIEW COMMISSION, Defendant.

87-1333.

Court of Appeals of Wisconsin.

March 30, 1988.

Circuit Court, Kenosha County

Affirmed

Appeal from a judgment of the circuit court for Kenosha county: David M. Bastian, Judge.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Peter Pirsch & Sons Company (Pirsch) appeals a circuit court judgment reversing a Labor and Industry Review Commission (LIRC) determination. The issue presented is whether the failure of the Department of Health and Social Services, Division of Vocational Rehabilitation (DVR), to follow its own rules and procedures regarding vocational rehabilitation requests, specifically the failure to involve Pirsch, the employer, in the rehabilitation process, constitutes reversible error. The trial court concluded that the failure of the DVR to follow its own procedures was, in essence, 'harmless error.' We concur and therefore affirm the judgment.

Jeffrey L. Sommer was employed by Pirsch. Sommer injured his back several times in work-related incidents. Physicians evaluating Sommer restricted Sommer's lifting to fifty to sixty pounds. Sommer requested alternative employment by Pirsch within his limitations but Pirsch told Sommer there were no jobs available.

Sommer consulted with a vocational rehabilitation counselor employed by DVR. After reviewing Sommer's medical reports, conferring with DVR's medical consultant and obtaining a psychological evaluation, an individualized written rehabilitation program was prepared recommending a two-year vocational retraining program in data processing. Sommer later changed his area of study to accounting and then to materials management. Both of these changes were approved by the DVR.

DVR has promulgated its own policies and procedures for processing worker's compensation referrals. These procedures require that the DVR counselor contact the worker's compensation insurance carrier and/or the employer to share, confirm and give information. The counselor also determines whether the injured employee can return to work for the same employer in the same capacity or in a different capacity. If the injured worker cannot return to work for this same employer, then the counselor is to determine whether the injured worker can be placed in the general labor market. The counselor is also supposed to report the injured employee's progress to the insurance carrier at regular intervals of at least six months.

The counselor assigned to Sommer's case took none of these steps. Neither Pirsch nor its insurance carrier were ever contacted. There was no attempt to place Sommer in the general labor market although Sommer had, on his own, applied to over fifty area businesses as a prerequisite for obtaining unemployment compensation. There were also no progress reports to the insurance carrier. Pirsch and its insurance carrier first learned about Sommer's involvement in a vocational rehabilitation plan when Sommer filed an application for hearing with the worker's compensation division of the Department of Industry, Labor and Human Relations. The application included a claim for rehabilitation benefits under secs. 102.43 and 102.61, Stats.

At the hearing before a worker's compensation administrative law judge, Pirsch took the position that Sommer was not entitled to an award of expenses because DVR failed to follow its own internal procedures. The administrative law judge dismissed Sommer's claim, holding that DVR had abused its discretion by placing Sommer in a course of retraining without following its policy and procedure manual. On administrative review, LIRC affirmed the case without comment. Sommer then sought judicial review. The trial court reversed LIRC's determination, holding that the policy and procedure manual was developed in order to implement a DVR/Worker's Compensation Cooperative Agreement and to provide a uniform method to facilitate and improve worker's compensation referrals to the DVR. Accordingly, the court concluded that the DVR's failure to follow these internal procedures did not meaningfully impact upon the DVR's processing of Sommer's interpretation of the rehabilitation laws. Therefore, the court concluded that an abuse of administrative power did not result.

Our scope of review is the same as that of the circuit court. City of Sheboygan v. WERC, 125 Wis.2d 1, 4, 370 N.W.2d 800, 802 (Ct. App. 1985). This court owes no deference to the circuit court when reviewing an administrative agency's decision, Kimberly-Clark Corp. v. LIRC, 138 Wis.2d 58, 63, 405 N.W.2d 684, 687 (Ct. App. 1987).

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