*1 Ralph Plaintiff-Appellant, E. Beecher,
v. Industry Review Commission†, Outo Labor & kumpu Copper Kenosha, Inc. and Fremont In demnity Casualty Co., Insurer, Insurance, c/o
Defendants-Respondents-Petitioners.
Supreme Court argument No. 02-1582. Oral January 2004. Decided June 88WI (Also 29.) reported in 682 N.W.2d †Motion for Reconsideration filed 7-19-04. *7 C.J., concurs.
AbRahamson, J., joins. BRADLEY, J., concurs. BRADLEY, defendant-respondent-petitioner, Labor For argued by Industry Commission, the cause was Review attorney general, Stephen Sobota, with M. assistant Peggy Lautenschlager, A. attor- on the briefs was whom ney general. defendant-respondent-petitioner, Outo-
For Indemnity kumpu Copper Kenosha, Fremont Inc., and by Casualty Insurance, there were briefs Co., Insurer, c/o Sachse, Jr., Vianes, 'Wade, R. Jessica M. Scott E. William Murray, S.C., Peterson, Johnson & Heidi M. Biasi by argument E. Milwaukee, and oral Scott Wade. plaintiff-appellant For there was brief Kelley, Kelley Schoone, Leuck, Pitts & Daniel J. argument by Knurr, S.C., Daniel J. Racine, and oral Kelley. In SYKES, S. J. this case we revisit DIANE aspect doctrine," of worker's so-called "odd-lot
compensation dealing law cases of with disability. presented The is whether a facie issue *8 disability total under the "odd-lot" case injured em- doctrine must include evidence ployee has made a reasonable effort to find suitable post-injury employment.
144 judge-made adjunct 2. The odd-lot doctrine is a compensation.1 represents to the law of worker's It general per- modification of the rule that benefits for disability compensate injured manent total worker earning capacity. for permanent recipients loss of Whereas most disability capacity benefits have lost all to earn income, claimants under the odd-lot doctrine may qualify though they for benefits even retain a capacity small, residual to earn In essence, income. provides injured odd-lot doctrine that some workers permanently, totally should be characterized as dis- though they capable earning abled even are still occasional income. recognized
¶ 3. We the odd-lot doctrine Balcze (1977): DILHR, wski v. 76 Wis. 2d 251 N.W.2d794 "Total disability" in compensation law is not to be interpreted literally as abject helplessness. utter and Evidence that claimant has been able to earn occasional wages perform or certain gainful kinds of work does not necessarily rule finding out a total disability nor require that it be partial. reduced to (quoting Id. at 493 2 Larson, Arthur Workmen's Com- 10-107).2 § pensation Law, oper- 57.51, at The doctrine ates as a rule of evidence: a [W]here a claimant makes case that he facie injured
has been and, in an industrial accident because injury, age, education, of his capacity, he is unable 1 See Arthur Larson & Lex K. Larson, Larson's Workers' (2003). Compensation Law quoted The passage has been ap renumbered and now Compensation Workers'
pears Larson, at 4 Law 83.01 at 83-2 (2003). *9 employment, the continuing gainful and any to secure employ- in is fact showing that the claimant burden injured claimant the jobs do exist for and that able employer. to shifts
Id. at 495. Industry Commission Review
¶ The Labor & 4. (LIRC) adoption argues since our enactments that two require us to in Balczewski odd-lot doctrine burden-shifting frame- the Balczewski how re-evaluate legislature applied. enacted Wis. 1985, the In is § work 102.17(7)(a) (2001-02),3 authorizes the which Stat. Department (DWD) Development re- to of Workforce earning expert on loss of evidence ceive and consider capacity. § 80.34, rule, DWD In an administrative adopted; specifies to consider the DWD is factors it was earning capacity. determining these One of loss of suitable to obtain claimant's "efforts is the factors employment." precisely explain how not LIRC does 102.17(7)(a) requires Stat. of Wis.
enactment modify doctrine. With odd-lot the Balczewski court to argues respect that because 80.34, LIRC DWD to em- suitable "efforts to obtain rule lists administrative ployment" considers the factors the DWD as one of modify earning capacity, determining we should loss of Balc- case under a facie odd-lot formula for required to demonstrate that the claimant zewski so job part his as search he has made reasonable prima facie cáse. disagree, is not hold that a claimant 6. We job part
required present as search evidence of provided unemployability, of odd-lot facie case are to Statutes All to the Wisconsin references indicated. unless otherwise 2001-02 version injury the claimant shows because his age, capac- other education, Balczewski factors such as ity, training, continuing, he is unable secure *10 gainful employment. putting If the claimant succeeds in category, himself within the odd-lot it to the falls employer to rebut the facie case demonstrat- ing jobs employable that the claimant is and that exist for In case, him. this LIRC concluded the em- ployee, Ralph Beecher, make a failed to facie case unemployability part for odd-lot in he did because not enough job. reaching make effort to find a new In placed evidentiary conclusion, LIRC an on burden required him, Beecher that was not and we therefore appeals' affirm the court reversal decision. LIRC's I. AND FACTS PROCEDURAL HISTORY upon ¶ 7. Our recitation of the facts is based agency including Findings record, of Fact and Conclusions of Law of the DWD Administrative Law Judge, subsequent E. Martin, Leonard and the LIRC decision. Beecher was born in 1942 and grade a ninth- has Outokumpu Copper He for
education. worked foundry, corporate predecessors, Kenosha, a or for its years. injury, working At the time of his Beecher on was machine, a "Z-Mill" which runs sheets of metal from one large spool. required roll to another roll or a The work Beecher to lean over the roll and the metal first thread job required bending into a slit on the second roll. The pick up pulling metal, over to the sheets of and then By them in to thread order the sheets onto the rolls. all accounts, the was strenuous. work April developed sharp
¶ 7, 1997, 8. On Beecher pains sought back, his lower medical treatment Christopher orthopedist. Noonan, with an Dr. Dr. problems for Noonan had treated Beecher past, back performed prior surgeries Beecher. had two on pains even- and Dr. Noonan Beecher's back continued surgical procedure tually performed on a third September 10, on 1997. lower back Beecher's light duty April work in Beecher returned to 9. Outokumpu ran out of work after two weeks but working. re- not for him and ceased Beecher has he Outokumpu its moved turned to work since that time. operations and did not offer to relocate out of Wisconsin Beecher. appli- September filed In Beecher hearing pursuant to
cation § at DWD Wis. Stat. alleging day-to-day up 102.17, his work activities April pre-existing progression to of his 7,1997, caused leading ultimately surgery. his He condition, back disability sought temporary from benefits October disability partial May 14,1998, 14,1999, *11 body percent to on a at 15 benefits functional basis disability on a vocational basis whole, as earning capacity, payment and of medical for loss of expenses. Judge ¶ Law evaluated 11. Administrative Martin reports testimony and Beecher's on the basis of claims experts. Beecher from several medical and vocational hearing. expert also at the The evi- himself testified may complex. safely pass in this While dence case we many descrip- following details, over is a brief its experts' tion of the conclusions. experts: upon medical 12. Beecher relied two orthopedist, Karr, Noonan,
Dr. and Dr. Richard who his April July in and 1998. Dr. examined Beecher Noonan percent permanent partial at 15 dis- assessed Beecher ability upon injury. Dr. Beecher based his Karr assessed percent permanent partial aat minimum of ten disabil- ity. testimony Outokumpu report of Dr. offered the and July in O'Brien, Thomas who examined Beecher opined again September that and in Dr. O'Brien injury April only no Beecher suffered new in 1997, but symptoms pre-existing a manifestation of from his condition. Outokumpu pre- 13. Beecher and each also experts.
sented evidence from vocational ex- Beecher's pert McReynolds. McReynolds was Charles testified sixth-grade that Beecher tested at the level for math, seventh-grade reading, fifth-grade level for and spelling. McReynolds level for testified that Beecher is retraining, aptitude. not candidate for on based his McReynolds also testified if Dr. that O'Brien's medical earning capac- correct, assessment was Beecher's loss of ity approximately percent. would be But if Drs. Karr McReynolds correct, and Noonan concluded, were then light duty McReynolds at best Beecher could do opined work. given age, pre- Beecher's educational level, training, non-suitability retraining, vious for no type stable labor market existed for the limited McReynolds amount work Beecher was able do. permanently therefore concluded that Beecher was totally standpoint. disabled from a vocational Outokumpu's expert
¶ 14. vocational was Leanne "high Panizich, who tested Beecher at the school level" reading sixth-grade for and the level for arithmetic and spelling. opined Panizich if Karr Drs. Noonan and assessments, were correct their medical then only percent Beecher would suffer a 25 to 35 reduction earning capacity, perform light duty as he could work employers in Wisconsin. If O'Brien's medical assess- *12 accepted, however, ment was the reduction would be percent. ten to 20 Panizich said it rare to was encounter employer days an these who would not accommodate disability. Beecher's Judge
¶ 15. Martin found Beecher's ex- medical perts Outokumpu's, more credible than and awarded disability temporary benefits for total
Beecher May May period 1998, As for Beecher's 14, 19, to 1999. disability permanent aon vocational total claim for McReynolds' testimony Judge basis, Martin found that he concluded Panizich's, than and was more credible disability permanent total had sustained that Beecher injury. April a on vocational basis as result applicant law, when found be Under Wisconsin permanently totally disabled, are awarded and benefits 102.44(2). for life. Wis. Stat. tempo- Outokumpu appealed of the awards 16. disability, permanent
rary LIRC reversed total disability.4 rever- total LIRC's the award for contrary upon of the agency. its assessment sal was based presented expert to the evidence vocational McReynolds' opinion permanently Beecher was totally premised work restrictions disabled was on by imposed on Dr. in March Beecher Noonan year approximately end of one before the Beecher's healing period. Dr. However, December findings occupational therapist adopted the Noonan (FCE) Capacity Meehan's Functional Evaluation Ruth findings, adopting Dr. did In these Noonan Beecher. part-time his earlier work restrictions. not reiterate applied LIRC then the "odd-lot" doctrine to Citing Balczewski, 76 Wis. the facts of Beecher's case. explained 495, LIRC that "a worker makes 2d at disability permanent and total on an facie case of by showing he she is odd-lot basis or unable employment any continuing gainful obtain or because injury impairment from his work and other age, training If the factors such as and education." case, continued, LIRC worker makes a facie disability was affirmed temporary The award appeal. LIRC and is not at issue *13 again citing Balczewski, the burden to shifts the em- ployer "regularly to show that some kind of work is continuously available to the worker." by McReynolds1
¶ 18. LIRC was struck failure to why explain adjust he did not his vocational conclusions adoption to for Dr. account Noonan's of the FCE. Then, citing compensation Larson's on treatise worker's law,5 LIRC noted: applicant work,
While the has made some effort to find the work set restrictions out the November 2000 FCE suggest effort, he could have made more of an a factor may against be considered him in determin- ing whether he has established facie case of unemployability. odd-lot
Accordingly, LIRC concluded that Beecher had failed to establish a facie case for total disabil- ity. though accept McRey-
¶ 19. Even LIRC did not opinion job part nolds' and concluded, based on the carry search evidence, Beecher failed his eviden- tiary agency accept burden, did not Panizich's expert opinion McReynolds, either. Unlike Panizich's upon FCE, conclusions were based the results of the but light age, LIRC concluded that in of Beecher's educa- capacity tion, level, skill and diminished to retrain, opinion Panizich's ultimate percent that Beecher suffered a earning capacity loss was too conservative. presented, Based on all the evidence LIRC concluded earning capacity that Beecher sustained loss percent, accordingly. and awarded benefits timely appealed
¶ 20. Beecher LIRC's decision County pursuant the Kenosha Circuit Court to Wis. scope Stat. 102.23. The of a circuit court's review an Larson, 4 Arthur Larson & Lex K. Larson's Workers' (2001). Compensation Law 84.01[4] may only narrow; confirm or the court order of LIRC is may not it or award, it *14 amend an order or set aside judgment for the commission's. the court's substitute 102.23(1)(e); v. Ind. Cas. Co. Columbia Wis. Stat. (1949). The Comm'n, 310, 35 904 254 N.W.2d Wis. Fisher, affirmed Honorable S. court, the Michael circuit findings supported by and cred substantial as LIRC's ible evidence. appeals appealed
¶
of
21. Beecher
to
court
contesting
§ 102.25,
conclusion
LIRC's
under Wis. Stat.
prima
facie case of
failed
establish
that he had
permanent
to
disability.
LIRC,
Beecher v.
2003 WI
total
App
The
100,
1,
394,
2d
under relating job any part as search forward evidence appeals prima Id., ¶ facie case. 25. The court prima fact, had, Beecher established a concluded that permanent disability under Balcze- facie case of total wski, LIRC's order and remanded the case reversed agency permitting Outokumpu purpose to the present prima evidence in rebuttal of Beecher's facie accepted case. review. We OF
II. STANDARD REVIEW m following appeal
¶ 22. In an an administrative agency agency's decision, decision, not we review Elec. & Comm'n v. circuit court's. Water Marshfield App WERC, ¶68, 16, 2002 WI 252 Wis. 2d N.W.2d 122. The issue this case is whether LIRC properly present concluded that Beecher failed to disability facie case for on an litigant odd-lot basis. Whether a has established a question Petrowsky facie case ais of law. v. (1998)(cit Krause, 32, 36, 223 Wis. 2d 588 N.W.2d318 Burg ing Components, v. Miniature Precision 111 Wis. (1983)). 2d 330 N.W2d 192 agency
¶ 23. In the context, review we have re cently "labeling question stated an issue aas of law may disregard agency's does not mean that a court LIRC, determination." v. 142, 12, Brown WI *15 agency's 2d 31, Wis. 671 N.W.2d279. We will accord an interpretation great weight of a statute deference (1) agency charged when: the is with administration of (2) particular interpretation issue; the at statute its is (3) long standing; employed expertise one of it its or specialized knowledge arriving interpretation; in its at (4) interpretation provide uniformity and its will and consistency application Id., ¶ in the of the statute. 16 (citing Harnischfeger Corp. LIRC, 650, v. 196 2dWis. (1995), Lisney n.4, LIRC, 660 539 N.W.2d98 v. 171 (1992)). degree 2d 499, 505, Wis. 493 N.W.2d14 A lesser weight" appropriate of deference, deference, "due "is agency experience when has some area but developed expertise necessarily places has not position interpret it in a a better than court to apply Brown, ¶ a statute." 2d 31, Wis. 15. No agency interpretation deference owed is to an where the impression, agency issue one of first where the no has special expertise, agency's position or where the has provides guidance. so been no real inconsistent it Brown, ¶ 14; Ins. v. 31, 2d Am. Mut. Co. 267 Wis. Mfrs. ¶ 155, Hernandez, 14, 252 Wis. 2d 2002 WI 584. N.W.2d gave appeals
¶ LIRC's decision 24. The court of evidently weight regarded great this deference, and require explanation. Beecher, as too obvious to choice 13. think some discussion is Wis. 2d We grounded interpreta- on its LIRC's decision was order. agency supple- case, of the Balczewski which tion § 84.01[4] by incorporating of the Larson trea- mented weight given may weight or due deference be tise. Great agency interpretations of statutes or administrative to judicial a deference is sense because the basis rules conferring respect legislature's prerogative in for the according appro- agency. By power than the on an less priate invades, albeit indi- deference, level of court legislature. rectly, province of legislature empowered and LIRC The DWD compensation statutes. See administer the worker's 102.01(2)(a), (ap); In Wis. Stat. 102.14. Stat. Wis. adopted Balczewski, court the odd-lot doctrine as this disability for the award ben- basis injured judicially- within workers who fall efits recognized category. LIRC It is clear that DWD and applied principles Balczewski have used many times.6 *16 apply But while and LIRC Balczewski DWD statutorily-conferred duties, of their it
in furtherance
in
that
treat LIRC's decision
does not follow
we must
interpretation of a
case as we would its
statute.
6 Our
indicates that
1982 LIRC has issued 78
research
since
disability,
on
of
cited
published decisions
odd-lot
72
which
(1977).
DILHR,
487,
2d
v.
76 Wis.
sion. The did not conclude that the enactment of Wis. 102.17(7)(a) § Stat. § and Wis. Admin. Code DWD 80.34 modi Balczewski, by fied the odd-lot doctrine of as asserted the chief justice's concurrence, concurrence. Chief Justice Abrahamson's only 77. LIRC cited the statute and ¶¶ administrative rule rejecting Beecher's facie case as insufficient under after Balczewski, having purported modify by Balczewski incorpo § rating 84.01[4] of the Larson simply treatise. LIRC's decision agency that reports experts
III. DISCUSSION Introduction A. in Wisconsin is compensation gov- 27. Worker's Act by Compensation
erned Worker's primarily Statutes, and is (WCA), the Wisconsin chapter by compensates the DWD. The WCA administered are in the course their injured employ- workers who LIRC, 281, 288, 2d v. 136 Wis. N.W.2d ment. State (1987). temporary fall into two categories: Benefits injured an disability benefits, payable during which are disability ben- healing worker's period, justice's argues that the Balcze- The chief concurrence also adjunct judge-made not to worker's wski odd-lot doctrine is a law, but, rather, statutory in compensation was an exercise such, interpretation of any agency it is interpretation, as statutory interpretation great in entitled to an exercise also concurrence, weight deference. Justice Abrahamson's Chief Bradley's 88. also takes issue with Justice concurrence ¶¶ of Balczewski. our characterization of odd-lot doctrine concurrence, regard, In Bradley's this both ¶¶ Justice our appear concurrences to misunderstand discussion of doctrine vis-a-vis the standard review Balczewski odd-lot applicable to decision in this case. Of course that is the LIRC statutory compensation claims are claims. But worker's rule, evidentiary burden-shifting framework and facie by requirements court in adopted odd-lot case Balczewski engrafted component parts judge-made are of a doctrine onto legislature If Chapter 102; they not exist in the statutes. do Balczewski, abrogating altering a and LIRC adopted statute or statute, interpretation engaged of such LIRC's decision analyzed may pursuant of the deferential well be one review, upon As we depending standards of circumstances. noted, however, not decision this case did have LIRC's statute; rather, interpret modified purport it Balczewski incorporating 84.01[4] the Larson treatise. payable
efits, which are if a worker remains disabled *18 healing period after the LIRC, has ended. Mireles v. ¶¶ 96, 7-8, 2000 WI 237 Wis. 2d 613 875; N.W.2d Joseph Compensa John D. Neal & Danas, Jr., Worker's (5th 2003). § tion 5.1, Handbook at 3 ed. distinguishes categories 28. The WCA two of
permanent disability benefits: benefits for "scheduled" injuries injuries. and benefits for "unscheduled" Mire suggested by les, ¶69, 237 2dWis. 9. As the terminol ogy, injuries scheduled are more amenable to standard example, ized benefits calculations. For for the loss of payment an arm at the shoulder, the WCA mandates average 500 weeks of benefits indexed to the worker's 102.52(1). pre-injury earnings. § Wis. Stat. There are many injuries, any however, that do not fall into statutory injuries Such schedules. "unscheduled" are primarily injuries to the torso, head and as well as injuries hearing to the mental faculties other than and sight. § supra, Danas, Neal and 5.20, 15; at Wis. Stat. 102.44(3). The calculation of benefits for unscheduled
injuries requires approach a more individualized than is necessary injuries. Mireles, for scheduled 2dWis. injuries ¶ 13. Back such as Beecher's are unsched injuries. uled theory, permanent disability
¶ 29. In all benefits compensate employee earnings. an for the loss future supra, Danas, Neal and 5.15, at 10. This idea is "[S]ince well-rooted in our case law. an award for permanent disability is to be made for all time... it upon prediction must be based impairment some sort of as to earning capacity." Northern States Power Comm'n, Co. v. 70, 76, Indus. 252 Wis. N.W.2d (1947). injury If a non-scheduled causes total loss of employee earning capacity,
wage entitled to is disability payments. permanent total wage earning Determining of future loss easy injury an capacity cases is not in non-scheduled highly of such nature individualized matter. Given injuries, constantly job trans- is market change, predict- technological formed ing economic earning capacity injury affect future will how compen- reason, For this worker's an exact science. not type give in this to claimants has evolved sation law flexibility for total to a case more build case disability, judges give agency more discretion claims. merits of such rule on the *19 Doctrine and the Odd-Lot B. Balczewski change important was in this direction 31. One recognition of the so-called in Balczewski this court's disability. permanent Balcze total doctrine of odd-lot explained, Balczewski wski, 2d at 495-96. As 76 Wis. originated opinion probably in an doctrine the odd-lot by Judge King's Bench decision Moulton in the (1911). Corp., Corp. Hall, 1 K.B. 1009 v. Cardiff Cardiff K. Larson and Lex 494; see also Arthur 1 K.B. at Compensation 83.02, Law Larson, Larson's Workers' (2003). the doctrine is The essential idea behind at 83-3 compensation disability law under worker's that total literally complete and to mean not be taken should injured helplessness, find workers because some utter training, age, education, themselves, of their because becoming ordinary [] "incapable capacity, and overall average any capacity work[men] well known Corp., 1 K.B. at of the labour market." branch Cardiff colloquial language that has come to In the represent injured doctrine, some workers are fit only job appears occasionally for the "odd lot" for a short time.
¶ 32. As Balczewski itself clear, made the odd-lot operates doctrine Balczewski, as rule of evidence. supra, 495; Wis. 2d at see also and Danas, 5.31, Neal burden-shifting at 21. The doctrine creates a frame- party work that determines which in a nonscheduled injury compensation responsible worker's case is for producing go evidence sufficient to forward with a claim disability on an odd-lot basis. Paraphrasing the treatise, Larson Balczewski held: [Wjhere a claimant makes a case that he facie injured and,
has been in an industrial accident because education, injury, age, of his capacity, he is unable any to secure continuing gainful employment, burden showing that the claimant employ- fact jobs able and that injured do exist for the claimant employer. shifts to the
Balczewski,
failed to make a facie case of odd-lot part, because, in he did not demonstrate sufficient post-injury employment. efforts to find suitable LIRC job determined that Beecher's insufficient search was "a may against factor that ing be considered him in determin- *20 prima whether he has established a facie case of unemployability." support proposition, odd-lot In of this passage LIRC relied on a in Larson's treatise not cited argues appeal in the Balczewski decision. LIRC also on 102.17(7), § regarding that the enactment of Wis. Stat. receipt expert earning capacity, of evidence on loss of § setting 80.34, and DWD forth factors that the DWD earning capacity, determining of loss to consider prima support facie the Balczewski modification of applicant require rea- to show formula to odd-lot Outokumpu disagrees, job efforts. sonable search demonstrating Beecher met his burden concedes that argues employer status; the instead facie odd-lot successfully prima facie case. Beecher's that it rebutted appeals properly argues the court of Beecher he had not met his conclusion that reversed LIRC's prima of an insufficient facie odd-lot burden because job post-injury search.
C. The Larson treatise, § 84.01 [4] § 84.01[4] of the Larson relied on 34. LIRC compensation to conclude that treatise worker's required had that he to demonstrate Beecher was engaged job part post-injury search as in a reasonable fact, In odd-lot case under Balczewski. his facie passage "Burden from Larson is entitled however, this Employee in on Non-Odd-Lot of Proof of Search Work added). (emphasis 84.01[4] supra, Larson, Cases." applicant treatise describes an This section specialized impairment "is so limited or medical whose obviously unemployable he or she is not in nature that category." relegated Id., [4], 84.01 at to the odd-lot or added). proposed (emphasis Larson such 84-8 place proof the burden cases, it is not unreasonable employee "has made that he or she on the to establish employment." Id. suitable reasonable efforts secure argues that since Bal- on this review 35. LIRC adopted from Larson's the odd-lot doctrine czewski dealing of the treatise with treatise, all sections incorporated implicitly into Wiscon- have been doctrine specifi- opinion law, or not the Balczewski sin cally whether problems them. There are a number mentioned *21 First, with this there argument. was no discussion in Balczewski issue of whether the claimant had an conducted adequate post-injury job search. LIRC that had the argues job search issue been raised in Balczewski, this court would have explicitly adopted the from passage Larson that LIRC urges us in this upon case. 36. findWe this too suggestion speculative. This
court and the court of have appeals adopted various elements of Larson's treatise in the and the past, normal has been to practice specifically identify which aspects treatise are being adopted.8 It is true that the Balczewski opinion incorporated large passages the Larson text into its But analysis. does not warrant the conclusion that the Balczewski court in-
8 Commission, In Continental Casualty Co. v. Industrial 89, 94-95, (1965), Wis. 2d example, held, 135 N.W.2d803 we Larson, citing employee injured that an "in is the course of employment" injured if he doing private is while errand for his employer. out, however, pointed We that while "[t]he broad rule itself," as stated Professor Larson commends we would not decide adopt completely." "whether to it Id. at 96. In Frisbie v. DILHR, (1969), 2dWis. 172 N.W.2d346 held that an we employee injured walking while employer's parking from the lot plant by WCA, to the was covered carefully but we distin guished holding, grounded reading statute, our in a of a state from "special Larson's treatment of the hazards doctrine." Id. at DILHR, Finally, in Bruns Volkswagen, Inc. v. 110 Wis. 2d (Ct. 319, 327, 1982), App. appeals N.W.2d886 the court of upheld agency an employee injured determination that an during horseplay workplace at the was covered. The court reasoned that adopted since this court had Larson's view that employee injured leaving post satisfy after his some "idle curiosity" covered, agree we would also with Larson injuries during horseplay covered, sustained should be as well. Id. at 324. adopt everything Larson said about the
tended doctrine in his book. odd-lot elsewhere *22 really passage question ¶ in not Second, 37. the is part of the odd-lot doctrine but is of Larson's treatment suggested "corollary" to rather the author's previous "general-purpose principle" stated in the sec- quoted and relied tions treatise —the sections opinion. upon in the There was no mention Balczewski "corollary" opinion, nor this in the Balczewski was of any suggestion exception existed to the there that burden-shifting by framework the court. established We misapplied conclude LIRC misread and therefore erroneously expanding holding Balczewski, to incor- its adopted by porate elements of treatise not Larson's court. 102.17(7) § §
D. Stat. and DWD 80.34 Wisconsin argues post- ¶ 38. LIRC also certain require a of Balczewski enactments re-evaluation Specifically, components of an odd-lot facie case. 102.17(7)(a), § pertain- contends LIRC that Wis. Stat. ing expert of in loss admission evidence of § earning capacity specifying cases, 80.34, and DWD determining factors the DWD to consider in loss earning capacity, require a modification of the showing facie odd-lot under Balczewski to include evi- job dence of reasonable search the claimant. decided in 1977. In Balczewski was compensation the worker's statutes were amended to specify experts earning role of vocational in loss of capacity cases: (b),
Except provided in a or par. partial [for as claim permanent disability], testimony certified re- or expert earning capacity on loss ports witnesses may be received in evidence and considered with all employee's other evidence to decide on an actual loss of earning capacity. 102.17(7)(a).
1985 Wis. Act Wis. Stat. creating 40. Three years earlier, DWD 80.34 was This administrative rule adopted. a set of provides factors that the is to DWD consider when assessing extent of lost earning capacity cases both disability, partial total: Any department earning determinations as to loss of 102.44(2) capacity injuries (3), arising under s. Stats., shall take injured into account the effect of the employee's permanent physical and mental limitations resulting injury from upon present potential *23 earnings following in view of the factors: (a) Age;
(b) Education;
(c) Training;
(d) experience; Previous work
(e) earnings; Previous
(f) occupation earnings; Present (g) occupational change; Likelihood of future suitable (h) employment; Efforts to obtain suitable (i) Willingness change to make reasonable in a resi- employment; dence to secure suitable (j) willingness participate Success of and to in reason- physical program able and vocational rehabilitation [sic]; and
(k) pertinent Other evidence. 80.34(1). § no mention of odd-lot The rule makes DWD disability. explain why it not believes 41. LIRC does 102.17(7)(a) § impel should us Stat.
enactment Wis. requirements modify case or facie to burden-shifting evidentiary principle of Balczewski. We agency's argument develop it. for As to to decline 80.34(1), very generally argues § the rule LIRC analysis" required "expands odd-lot doc- under the originally in Balczewski. But LIRC set forth trine as job why explain of a search should not evidence does necessary facie element of considered now be § point except it as to out that 80.34 lists case, odd-lot agency's many in the factors to be considered one of earning argu- capacity. LIRC's of loss of determination entirely conelusory. point on this is almost ment why adoption no reason 42. We see requires doctrine rec- alteration of the odd-lot 80.34 ognized rule in Balczewski. The administrative sets to be considered DWD a list of ten factors forth assessing earning capacity, plus a catch-all cat- loss of pertinent egory for "other evidence." DWD 80.34(1)(a)-(k). "[a]ny applies generally The rule earning capac- department determinations as to loss of perma- injuries causing permanent partial ity" or disability. only is, however, It a list of factors nent total evaluating earning capacity. considered in loss be evidentiary rule; neither it not an does Section 80.34 is *24 proof, purport impose of establish a set of a burden evidentiary requirements, or mandate the substantive elements of a claim. age, Taking applicant's factor, first 43. applicants § example, eliminate an 80.34 does not
as age establish a are below a certain or otherwise who particular evidentiary requirement
regarding age that qualify earning of met in order to loss must be Similarly, capacity the fact that 80.34 lists benefits. "training" and as factors to be considered "education" evidentiary any particular threshold does not establish training type regarding of the level or education or "[w]ill- disqualifying. The rule lists would be considered ingness change in a residence to to make reasonable employment" aas factor to be consid- secure suitable follow, however, it not that the rule's inclu- ered; does "willingness to relocate" is of this factor means sion lack evidence of an of the claim or that of element willingness disqualifying. itself The to relocate obviously pertinent "[o]ther not evidence" does catch-all evidentiary requirement. impose The an elemental depends weight any 80.34 factors relative of one of the upon in context with the others. The consideration its as in the rule cannot be considered factors listed thus independent necessary, of a claim for elements loss earning capacity. importantly, any event, more In exception gen- judge-made to the
odd-lot doctrine is disability under total awards eral rule that proof compensation are on law based worker's injured employee earning capacity. If can loss injury, age, education, and of his show that "because any continuing capacity, he is unable secure prima placed gainful employment," himself he has facie category, the burden shifts to the in the odd-lot availability employer employability and the to show evidentiary burden-shifting jobs. import The of this employee facie if the can make out a rule is that produce disability, he not then need case for odd-lot attempted he to secure suitable evidence that has employment; established he has facie alternate *25 inability continuing gainful his employ- to secure requiring produce ment, and him to evidence of an job unnecessary actual search is an exercise under this up employer doctrine. It is to the under these circum- injured employee stances to demonstrate that actually employable jobs and that there are actual available to him:
If the evidence degree physical of obvious impair- ment, coupled with other factors such as claimant's capacity, mental education, training, age, or places claimant prima in the category, odd-lot the burden facie should be employer on the to show that some kind of suitable work is regularly and continuously available to the claimant. quoting
Balczewski, § Wis. 2d at Larson, 57.61, at 10-136-37.9 Casting 45. LIRC cites Advance Die LIRC, Co. v. (Ct. 1989)
154 Wis. 2d
App.
239,
on review referred to DWD 80.34 in the course of concluding injured that the claimant in the case was permanently, totally disabled on an odd-lot basis. The appeals upheld court of the circuit court's affirmance LIRC's decision: agency's
The finding that the permanent disability injury, Niecko's back coupled with finding its injury such was due to his loss of earning passage This has been renumbered and appears now at 4 Larson's Workers' Compensation Law at 84.01[3] 84-5. factors, Ind. 80.34 rendered that capacity under the sec. than perform any not services "other Niecko could *26 dependability, are in or quality, so limited those which a market does not exist" quantity that reasonable stable abundantly At time of in this record. the his clear old; sixty-three years he had the was injury, Niecko education; a he worked in equivalent high of school had years; he foundry thirty-five for was [the] Advance only heavy operator to work as a die cast trained do employ in of years for all of those setup worker Advance; training experi- he had no other work finding clearly support agency's facts of ence. Those disability due loss of permanent total to the odd-lot earning capacity. agency "[t]he
Id. at The court also concluded that finding in substan- correct that Niecko met the was also showing prima he made a tial evidence test since facie injury coupled of odd-lot factors sec. with the that the totally permanently him disabled Ind. 80.34 rendered regular employment." Id. for continuous generalized of references the basis these 47. On argues § case, now an odd-lot LIRC to DWD 80.34 in now he considered ele- 80.34 factors must prima the odd-lot doc- ments facie case under of reading sweeping Advance Die a far trine. This is too Casting Casting. appeals in Die The court of Advance properly only agency had considered the that the said it not declare that 80.34; in did factors listed bring required evidence on forward claimant was part prima his facie case. More as each factor job specifically, no to a search there is reference since Casting opinion, appeals the court of Die the Advance necessary regard clearly a element this factor as did not prima the odd-lot facie case under of a claimant's neither do we. doctrine, and
E. The "Prima Facie Case" Outokumpu
¶ 48.
offers a more nuanced
view
Outokumpu
LIRC's
on
decision.
concedes
this review
present
prima
did,
fact,
that Beecher
a
facie
case
disability on an
odd-lot basis under
argues
successfully
Balczewski,
that it
it.
but
rebutted
Outokumpu
simply misspoke
contends that LIRC
when
present
it
case,
said that Beecher failed
facie
job
and that when LIRC concluded that Beecher's
search
inadequate,
already
stage"
was
it was
at the "second
analysis,
(silently,
having
concluded
as it
or
were,
contrary
express
decision),
to the
words of its
presented
Beecher
facie case and that Outo-
kumpu
accept
interpretation
rebutted it. We cannot
*27
job
of the LIRC decision's treatment of the
search issue.
language
The
of the decision
it clear
makes
that the
agency
job
regarded
part
search evidence as
of Beecher's
prima
legal proposition
burden,
facie odd-lot
a
we
that
rejected
have
as inconsistent with Balczewski.
opportunity,
clarify
¶ 49.
take this
however,
We
to
prima
burden-shifting evidentiary
facie case and
expression
rule of the Balczewski odd-lot doctrine. The
"prima
widely
case"
facie
is
invoked
our law but
rarely explained. McCormick on Evidence states that
concept
"prima
courts use the
of
facie case" in two
1)
get
jury
senses:
evidence that is sufficient to
to the
(that
2)
verdict);
is, to survive a directed
evidence
producing
is
sufficient
shift the
burden
Strong,
evidence. 2 John W.
McCormick on Evidence
(5th
1999).
§ 342, n.4
ed.
It is often difficult to deter-
given
mine which of these two senses is intended in a
opinion.
Henry Wigmore,
Id.;
court
see also 9 John
Evidence in Trials at
Common Law
at 378
(Chadbourn
1981).
rev. ed.
Bauch,
Kassuba,
2d
¶
In
Inc. v.
38 Wis.
50. Walter
(1968),
prima
a
characterized
648,
tion and burdens of most often evidentiary presumptions. in the context burden-shifting Balczewski's framework can be analo- gized presumptions to the law of cases, civil which sorting through inter-relationship assists in be- § tween presump- 80.34 and Balczewski. In Wisconsin, governed by tions civil are cases Wis. Stat. 903.01, which states:
[A] presumption recognized at common law or created by statute, including statutory provisions that certain basic facts are facie facts, evidence of other imposes on party relying on the presumption the burden proving facts, the basic but once the basic are facts found to exist presumption imposes on the party against whom it is directed the proving burden of presumed nonexistence of the fact is more probable than its existence.
Wis. Stat. 903.01. ¶ 54. Balczewski holds that certain basic facts— injury, age, the training may capacity, claimant's education, inability in combination demonstrate an — continuing, gainful employment to secure such that these basic facts constitute facie evidence (presumed) namely another fact, that the claimant is permanently totally incapable earning living. Ordinarily accomplished through expert this is testi- mony. employer may expert The introduce evidence in employee's prima contradiction of the basic facts of the prevent presumption facie case in order to from arising. Balczewski, Under however, if the claimant brings satisfy forward the basic facts sufficient to *29 made, the has been odd-lot case a facie that DWD imposed obligation triggered presumption is and presumption against party runs— upon the whom obligation of employer. burden is the That here, the presumed fact is proving of the non-existence that words, probable in other existence, or than its more probable is not living. the claimant that it is more that earning totally incapable a permanently of and requires the em- that this burden holds Balczewski job ployer actual that is an there to show can do. claimant Accordingly, the burden we conclude employer under to the from the claimant
that shifts
only
persuasion,
as to the
but
a
Balczewski is burden
job
can
the claimant
a
exists that
of whether
sub-issue
aspects
persuasion
theof
on the other
do. The burden
disability
benefits
claimant's case
always,
The claimant
claimant.
remains, as
with
injury
aspects of
prove
medical
and
the industrial
must
facie case
makes
if the claimant
claim,
his
injury, age,
upon
unemployability
his
based
for odd-lot
capacity,
training,
it falls to
then
education,
employ-
employer
there exists suitable
to show that
employer does this
The
claimant.
ment for the
availability,
job
bringing
actual
evidence of
forward
probable
making
claimant is
not that the
more
than
it
may respond
living.10
with
The claimant
to earn a
able
Bd.
Postal Svc.
United States
urges us to consider
LIRC
(1983),
the United
Aiken,
IV CONCLUSION By recognizing part the odd-lot doctrine as a compensation of Wisconsin's worker's law, Balczewski injected large adjudication a dose of realism into the of disability general permanent cases. From the rule that disability compensate total benefits workers for the earning capacity, total loss of future Balczewski created exception seriously-injured a narrow for workers whose ability unsteady earn occasional, income does not disability warrant a denial of benefits partial disability. or a reduction to prima perma- 57. To establish a facie case for disability nent total on an odd-lot basis, a claimant employer's proffered pretextual. reason is Aiken inappo- is site here because Wisconsin does not adhere to the same view of evidentiary presumptions system. as the federal Under Fed. R. Evid. presumption civil "explodes" once party the adverse brings any forward tending evidence to rebut the prima facie case, persuasion and the burden of remains proponent with the presumption. Wisconsin, however, In party adverse to presumption civil bears the burden persuasion as to the presumed generally, fact. See Blinka, Daniel D. Wisconsin (2d. §§ Evidence 301.1-301.4 ed. 2001)(explaining the differ- rule). ence between the federal rule and the Wisconsin usually by way expert reports present, must testimony, demonstrating evidence to the satisfaction injury, the claimant's combined with his the DWD that age, training, capacity he education, shows that is gainful employment, put- continuing, unable to secure ting category. him the odd-lot This evidence need into job post-injury Once a not include evidence of a search. employer made, case falls to the facie odd-lot it regular prove there is continuous work the claimant in order to rebut the available to making unemployability. In facie case of odd-lot eligibility benefits, ultimate determination of any agency considers factors enumerated DWD doctrine, are the odd-lot or 80.34 that consistent with *31 broadly agency if more the concludes that the claimant prima prima facie odd-lot or the odd-lot facie case is not has been rebutted. job
¶ search case, In this LIRC considered 58. part prima facie burden of Beecher's odd-lot factor to be concluded that this was under Balczewski. We have Outokumpu legally improper. conceded this court has made, case has been asks facie odd-lot that prima facie case was success- that the that we conclude fully rebutted.
¶ here whether the now- do not decide 59. We rebutted. facie odd-lot case has been conceded compensation award is of a worker's Judicial review setting confirming award; modi- or aside limited of the court's or a substitution fication, amendment supra. judgment agency's improper. ¶ 20, See for the agency's Accordingly, decision we set aside proceed- any further remand this case ings rebuttal opinion. consistent with By the Court. —The decision of the court of appeals is affirmed. ABRAHAMSON, 60. SHIRLEY {concur- S. C.J. . The
ring) decision of the court of should be appeals affirmed. The court of concluded appeals correctly (LIRC's) the Labor & Review Industry Commission's interpretation Wisconsin's odd-lot doctrine did not with Wisconsin law and therefore was errone- comply ous. I write separately express my disagree-
ment with the two reasoning majority opinion on issues:
(1) majority opinion characterizing The errs in explained
odd-lot doctrine
in Balczewski v.
"judge-made
DILHR1 as a
adjunct to the law of
compensation,"2
judge-made
worker's
as "a
ex-
ception
general
to the
rule that
disability
under
compensation
awards
worker's
proof
earning
law are based on
of total
loss
capacity,"3 and
(apparently
as a court-created
out of whole cloth and not derived from the
Act)
Compensation
Worker's
rule of evidence to
be used LIRC.41 conclude
Balczewski
prior
correctly
case adhered to
case law and
(and
characterized the odd-lot doctrine
appli-
its
cation,
including
burden-shifting
frame-
*32
work)
interpretation
as an
of meaning
the
1
DILHR,
487,
Balczewski v.
2d
76 Wis.
2 id., Majority op., 2. See also ¶ 56. ¶ 3 Id., 44. ¶ 4 id., 3, See 32. ¶¶ disability"5 impliedly of "total and "loss
phrases in earning capacity" as used Wisconsin's (WCA). Act Compensation Worker's (2) by characterizing majority opinion The errs as interpretation
LIRC's of the odd-lot doctrine the Balczewski case not interpretation any deference. I conclude that LIRC's entitled to an inter- interpretation of the odd-lot doctrine is (including pretation application of WCA WCA) interpretations of the and is this court's weight deference. great entitled to in this determination Although agency's 62. ¶ conclude, I deference, great weight case should be given in majority of the reasons set forth many in of the court of opinion appeals,6 opinion the law erroneous LIRC's interpretation court Accordingly, therefore is unreasonable. law, affirm the agency's interpretation should not did, reverse and should, as the court of appeals but this matter. remand characterizing The errs majority opinion 63.
¶ in Balczewski as a "judge- explained the odd-lot doctrine as adjunct compensation,"7 made to the law worker's rule that general per- judge-made exception "a compen- awards under worker's disability manent 5Balczewski, Larson, 2 Arthur (quoting 2d at 493 76 Wis. 10-107) (" 57.51, 'Total Law at Compensation Workmen's literally interpreted disability1 compensation law is not to be abject helplessness.")). as utter and LIRC, 34-47; App Beecher v. 2003 WI majority op., ¶¶ See 17-26, 2d 316. 264 Wis. 663 N.W.2d ¶¶ id., Majority op., 2. See also *33 proof earning law are based on of total loss of sation capacity,"8 (apparently as court-created out WCA) cloth and not from the whole derived rule by evidence to be used LIRC.9 ¶ A64. careful examination of the Balczewski adoption decision demonstrates that Balczewski's of the language judge- Larson treatise did not create a new made common-law rule for the The WCA. Balczewski interpreted WCA, decision identified and labeled prior doctrine, case law as the famed "odd-lot" developed prior two-step, distilled and case law into a burden-shifting interpretation WCA, of the a more clearly interpretation enunciated of the WCA that the adopted prior court had cases. The Balczewski court clearly explicitly understood, stated, it was taking approach. unambiguously
¶ 65. The Balczewski
court
interpretation
viewed the odd-lot doctrine
anas
stating
WCA,
as follows: "Wethink it clear that what
Larson refers to as the 'odd-lot' doctrine is a statement
of the Wisconsin law it has
as
existed at least since the
Compensation
1923 amendments
to the Worker's
"
disability'
compensation
Act."10 'Total
law is not to
interpreted literally
be
. .. ."11
existing
interpret-
The
66.
law
Wisconsin case
ing
repeatedly
the WCA and
referred to
the Balcze-
began
wski court12
in the 1917 McDonald v. Industrial
8Id.,
44.
9
id.,
See
¶¶
10Balczewski,
Law
(emphasis
at
12See,
Balczewski,
e.g.,
that the worker could if work it walking stooping.14 did deciding not involve much or In finding, whether to affirm a such this court considered whether the claimant's substantial but not total loss of earning capacity qualified compensable injury as a permanent disability under the then total statute.15 This court concluded that it did.
¶ 67. In 1944, in Milwaukee Western Fuel Co. v. looking Commission, Industrial this court continued at earning capacity, although opinion loss of actual did interpreted not cite McDonald or the statute therein.16 permanent disability This court affirmed a total award though even the claimant snow, was able to shovel run periods errands, and work for short of time until dizziness and took weakness hold.17 In 1972, 68. in DILHR, 18 Kurschner v. a case expressly upon by again Balczewski, relied this court recognized that, in cases of non-schedule industrial Comm'n, McDonald v. Indus. 372, 165 Wis. 162 N.W.345 (1917).
14 Id. at 373.
15 Id. at
provision
372. The
of the WCA considered in
McDonald
2394-9,
2(d),
was section
subdivision
and reads
materially
102.44(2).
same as the current Wis. Stat.
Comm'n,
Milwaukee
W.Fuel Co. v. Indus.
334,
245 Wis.
(1944).
injuries, in crucial factor earning impairment disability proof of actual total capacity The Balcze- market.19 industrial labor stand alone. does not that Kurschner court noted wski case court, the Kurschner Balczewski Rather, stated the long merely line of cases culmination of "the is interpreting compensation for nonschedule the basis [now injuries the Wisconsin Workmen's under Compensation Worker's] Act."20 Finally, Insurance in Transamerica again spoke odd-lot on the DILHR,21 court Co. v. labeling again specifically although not doctrine, Transamerica, affirmed In the court doctrine as such. disability finding the claim- because per- totally permanently from disabled ant was *35 being permanently forming trade, as well as at his labor performing totally or other manual disabled from and employment22 Further- in another "suitable" labor capacity earning as court declared loss more, this degree measuring important of disabil- stick as to "one propositions, ity."23 court the Transamerica For both above. cases discussed cited the prior only view did the Balczewski court 70. Not adopting as odd-lot doctrine the rationale of the as cases statutory interpretation, also both the but a matter (representing Attorney General claimant and the 19 Id. at 19-20.
20 Balczewski, 2d at 492. 76 Wis.
21 DILHR, 54 Co. v. Transamerica Ins. 2d 195 Wis. (1972). 656 N.W.2d 22 375-76; Milwau (citing McDonald, Id. 165 Wis. at at 277 Co., 335-36). kee Fuel W. at 245 Wis. Co., (citing N. States Ins. Transamerica 2d at 277 54 Wis. Comm'n, 217; 70, 76, Indus. Power Co. v. N.W.2d Wis. DILHR, 42 Wis. 2d Kurschner, 18-20; Kohler Co. v. 2d at 40 Wis. (1969)). 396, 405-06, 167 N.W.2d
178' agreed agency) in Balczewski that the odd-lot doctrine just part WCA, was not that name. The long in claimant's brief Balczewski stated that "it has recognized Compensation been in Wisconsin Workers' disability finding law that a purposes of total for industrial proper despite can be the fact that a claimant capable light is ney of... miscellaneous work."24The Attor-
General's brief Balczewski states that DILHR "agree [the and the State doctrine] with the claimant odd-lot implicit" is in the WCA, that the doctrine is existing but another statement of law, Wisconsin findings that DILHR has made disability based on the odd-lot doctrine.25 identifying, By distilling, labeling
¶ 71. developing statute-based rule of the McDonald line of interpreting cases, the Balczewski court was the foun- legal disability" art in "total dational terms of the WCA: earning capacity." and "loss of The Balczewski court disability' compensation '[t]otal that" concluded law literally abject interpreted not to be as utter helplessness. has Evidence claimant been able to necessarily wages ... earn occasional does not rule out finding disability require of total nor that it is to be partial."26 reduced to statutory is, doubt, Balczewski without
interpretation Indeed, even from case. the cases which emerges Professor Larson's odd-lot doctrine are cases interpreting compensation workers' acts.
24 Appellant Brief of at 13.
25
Respondents, Department
Industry,
Brief of
Labor and
at 4. See also
Human Relations
State of
Wisconsin
Balczewski,
496.
179 example, refer- For the Balczewski court 73. Railway Minneapolis Co.,27 a case Street enced Lee v. exemplary representative thinks Professor Larson expressly inter- of odd-lot doctrine cases.28 That case Compensation preted phrase of Minnesota's a Workers' occupation "working brings him an Act: at an which Supreme The Minnesota Court held that income."29 degree phrase implies "at of continu- least reasonable sporadic ity occupational capacity," and that work periods enough, own, to of time not disability on its short negate determination.30 Again citing treatise, the Balcze- 74. Larson origins name wski court described the "odd-lot."31 Professor Larson attributes the doctrine name to Corp. Hall, British v. a case case discussed Cardiff Again, majority opinion.32 interpreted a this case Compensation statute, time the British Workmen's "earning phrase . Act 1906 and the or.. able earn."33 27 Co., Minneapolis Ry. (Minn. Lee v. St. 41 N.W.2d 433
1950).
28 Balczewski,
Larson,
(quoting
2d at
2
76 Wis.
493
10-107).
Law
Compensation
Workmen's
57.51,
§
Professor
at
Larson
as "the
followed
most modern
describes
case
rule
courts."
29
176.11,
This
has been
Minn. Stat. Ann.
subd. 5.
section
176.101,
Ann.
5
renumbered
as Minn. Stat.
subdivision
(2004).
30
Schmahl,
Lee,
v.
Green
(quoting
41
.2d
278
N.W
at 436-37
(Minn. 1938)
(also
interpreting
N.W.
158
Minnesota's
Act)).
Compensation
Workers'
31 Balczewski, 76
2d at
Wis.
Hall,
(K.B.
Corp. v.
1 K.B.
¶ I 76. therefore conclude that Balczewski and the judicial interpretations odd-lot doctrine are of WCA, judge-made adjunct not rules that are to the WCAor an exception to the WCA. perceived § 102.17(7)(a),
¶ 77. LIRC Wis* Stat. Wis. Admin. Code DWD 80.34, and Professor Larson's (§ 84.01[4]) altering text interpreting as the Balczewski line of cases question IWCA. therefore turn to the interpretation of whether LIRC's of the odd-lot doctrine great weight of the WCA is entitled to deference.
Í-H t—1 agree appeals I with the court that LIRC's interpretation great of the odd-lot doctrine is entitled weight deference. Thus this court will not overturn agree LIRC's determination it I unless is unreasonable. appeals with the court of that because LIRC did not interpreted by adhere the WCA as court, LIRC's determination was unreasonable.
A
great
weight
79. Wisconsin courts must afford
statutory interpretation
deference to LIRC's
present
odd-lot doctrine in the
case because the follow-
34Balczewski, 76
2dWis.
at 494-95.
(N.Y. 1921).
Co.,
v.
Jordan
Decorative
¶
concludes that no
The
80.
present
The
LIRC in the
case.
all is owed to
erence at
majority opinion
conclusion because it
reaches this
agency's
erroneously
to the
a court's deference
conflates
interpretation
determination
of a statute with a court's
agency's interpretation of a
of the reasonableness
weight
may give
agency great
A
court
statute.
agency's
yet
determi-
conclude that
deference and
and should be reversed.41
of law is unreasonable
nation
37
LIRC,
16,
31,
142,
Wis. 2d
671
2003 WI
267
¶
Brown v.
(2003)
LIRC,
Harnischfeger Corp. v.
196 Wis.
(citing
N.W.2d 279
LIRC,
(1995);
650, 660,
Lisney v.
171 Wis. 2d
"In
when a
calls
other
experience of an
expertise
policy judgments
require
decision,
controlling,
given
although not
is
agency,
agency's
Brown,
31,
(citing
16
great
267 Wis. 2d
weight
¶
deference."
DILHR,
659;
2d at
v.
94
Harnischfeger Corp., 196 Wis.
Nottelson
Corp.
106, 117,
(1980); Kimberly-Clark
2d
Law).43
Using
faulty underlying
¶ 82.
assertion,
majority opinion summarily
that even if
concludes
interpretation
long standing,
LIRC's
of Balczewski is of
no deference is owed to LIRC
because LIRC inter-
preting a
court,
decision of this
not a statute or admin-
only
majority opinion
istrative rule.44 Not
does the
*39
interpretation
agency's
refuse
accord the
of the WCA
any
majority opinion
goes
deference,
the
but
also
even
expansively
further and
asserts that "we need not defer
agency interpretations
of our own decisions."45
support
legal
¶ 83. As
for its erroneous broad
proposition,
majority
60,
cites Local American Fed-
County
Municipal Employees
State,
eration
and
v.
of
appeals
opined
WERC.46The court of
in Local 60
general
given
"it well
established that the
deference
agency's application
particular
to an
of statute does
42Majority op.,
22-26.
¶¶
43
Larson,
2
Compensation
Workmen's
57.51,
Arthur
Law
at
majority opinion explains,
10-107. As the
majority op.,
3¶
n.2, the
passage
cited Larson
has been
and
renumbered
now
Larson,
Compensation
Larson's Workers'
appears
at 4
Law
(2003).
83.01,
at 83-2
44 Majority op.,
25-26.
¶¶
45 Id.,
26.
¶
46
60,
State,
Local
County
Employees
Am. Fed'n
& Mun.
v.
of
WERC,
(Ct.
1998).
602,
2d
App.
217 Wis.
183 agency's apply conflicts when the determination not supreme prior our court." established with case law Doering appeals v.LIRC47as of cited The Local 60 court authority Doering proposition, in turn and cites for this cases. Pabst48 Klusendorf49 supports nor Neither Pabst 84. Klusendorf Doering, in in of law set forth Local statement majority opinion. Rather, both Pabst Klusen- (cases adopted the court levels decided before this dorf deference) correctly: "[C]ourts stated the law judgment agency's their for the should not substitute particular application if the found facts of a statute to agency's interpreta- exists law for the rational basis legislative conflict the statute's tion and it does not with history, prior court, constitutional decisions or prohibitions."50 agency's agree interpretation I if an interpret- prior conflicts with decisions of this court
law ing weight great then, deference, the law, even with agency's interpretation a court is not rational and need regardless interpretation not deference follow agency's accorded the determination.51 47 (Ct. 2d 142 Doering v. LIRC 187 Wis. 523 N.W.2d 1994). App. Taxation, 313, 323-24, Dep't v. 19 Wis. 2d Pabst (1963).
N.W.2d 77 LIRC, Chevrolet-Buick, Inc., v. Wis. 2d Klusendorf *40 (Ct. 1982). 328, App. 328 890 N.W.2d 50Pabst, 323-24; Klusendorf, 2d at see also 110 Wis. 19 Wis. 2d at 331-32.
51 agency's great of law are entitled to "When conclusions is weight agency's [a]n deference ... conclusion law unrea by if it may reviewing directly sonable and be reversed court or the contravenes the words the statute federal or state constitution, contrary legislative intent, is clearly if it to the
184 86. The court of recently refused to appeals ¶ "no follow the deference rule" in pronounced Local 60 and Doering granted and great weight deference to a case, DWD determination based on court reasoning as follows:52 fact
The that the supreme [DWD] also looked to the court's in [.Richland discussion School District v. DILHR, in statutory addition to a in provision] decid- ing may deprive [claim] this does not mean that we the department of the it is deference due on account of its expertise, experience legislatively delegated and au- thority.53 The standard of review in the majority opin-
¶
ion
Local
and
60
not
is
Wisconsin law and
supported
and
illogical
simply
wrong. Agencies
interpret
apply court
interpretations
By
of statutes all
time.
afford LIRC
failing to
level of
proper
deference
cases,
such
the majority
enables the
opinion
courts
to usurp legislative
state
The
power.54
majority
history,
purpose
statute,
or
it or
is without rational basis."
Brown,
(citing
267
Harnischfeger
Wis. 2d
19
196
Corp.,
¶
662;
Comm'n,
Wis. 2d at
Elec.
v.
212
Coop.
Barron
Pub. Serv.
(Ct.
1997)).
752, 766,
App.
Wis. 2d
N.W.2d
569
726
52
Foods,
DWD,
Inc. v.
AppWI
Wis. 2d
Kraft
378,
opinion's of a undermines statute agency's interpretation in the admin- necessary and is stability uniformity of istration the WCA.
B characterization of majority opinion's The 88. ¶ on Balcze purely determination as one based LXRC's § of Compensation 84.01[4] wski and Larson's Workers' Law,55 that "does purport interpret and one not rule,"56 LIRC,57 is erroneous. statute or administrative I interpret court and Beecher,58 appeals,59 of 102.17(7)(a), on Stat. decision as Wis. relying LIRC 80.34, interpreting case law Wis. Admin. Code DWD constantly that is transformed injuries, job and a market technological change, injury predicting and how economic not an exact science. For earning capacity will affect future reason, give compensation law has evolved to workers' flexibility case for total claimants ... more to build a judges to rule on disability, give agency and to more discretion Majority op., claims." 30. merits such 55 Larson, 4 Larson and Lex K. Larson’s Workers' Arthur (2001). § 84.01[4] Law Compensation 56Majority op., 57 Defendant-Respondent- Appendix Brief and See at Petitioner LIRC 14—16.
58 E. Appendix Plaintiff-Appellant Ralph See Brief Beecher at 34-37. 59 LIRC, 9, 16, App. 264 v. 2003 WI ¶¶ See Beecher (2003). N.W.2d
Wis. 2d (5th 2003) ed. at Compensation In their Handbook Worker's Jr., Danas, Summary-1, Joseph D. April John Neal offering appeals as the court of decision Beecher view statutory guidance impact as to the odd-lot cases after Balczewski. administrative code amendments enacted *42 (Balczewski), WCA and the Larson treatise. The majority opinion protests.60 89. The majority opinion the LIRC deci- parses
¶ sion to it so that it does not on reinterpret rely anything but Balczewski and the Larson justify text to according the LIRC decision no deference. a only 90. Not of does the LIRC reading decision
itself demonstrate error,61 majority opinion's but numerous LIRC cases that preceded the case present regularly § on Wis. Admin rely 80.34, Code DWD Balc-
60 majority op., See 25 n.7. 61 Cooper Inc., See Beecher v. Outokumpu No. Kenosha 1997028765, (LIRC, 18, at 9 2001), Dec. at available In the section www.dwd.state.wi.us/lire/wcdecsns/726.bLtm. LIRC's decision permanent disability entitled "Extent of aon basis," stated, citing § vocational LIRC 84.01[4] the Larson treatise, that "while the applicant has made effort find some to work, the work set in the restrictions out November FCE suggest effort, he may could have made more of an a factor that be against determining considered him in whether he has a established facie case of odd-lot In unemployability. short, the applicant commission cannot conclude that the has made prima a case." facie testimony
LIRC's decision then summarized the of an employer's earning witness who estimated a loss capac- 35% ity and concluded that the witness underestimated the obstacles to finding employment. Beecher then
LIRC concluded this section of its as decision follows: short, "In considering after set factors out in Wis. Admin. reports § giving Code DWD 80.34 and of the vocational experts 102.17(7)(a), due weight under Stat. Wis. the commis- sion the applicant earning concludes that has sustained a loss of Beecher, (LIRC, at capacity percent." See at No. 2001). Dec. proposition supporting Larson,62 zewski, as unemploy- make facie case odd-lot that "to requires applicants ability, undertake the commission efforts to find work."63 reasonable 57.61(d) consistently quote § LIRC decisions These (rather (1993 1998) 84.01[4], than text as follows Larson (2001) newly numbered section of the Larson treatise Beecher): referred to 'it noted in odd-lot cases is not "Professor Larson has employee] place proof on [the the burden of to
unreasonable person unavailability in his of work to a circum- establish showing stances, normally require that he has made which would employment.'" reasonable efforts secure suitable *43 See, Products, e.g., Herdt v. Lincoln Wood No. 1979018557 1999), 30, (LIRC, June available at www.dwd.state.wi.us/lirc/ wcdecsns/345.htm; No. Mortgage Corp., Krezman v. Fleet (LIRC, 20, 1998), available at 1993016147 Nov. www.dwd- case, present In the .state.wi.us /lirc/wcdecsns/267.htm. newer of Larson and to LIRC decision refers a edition § 84.01[4]. attempts through I late made Professor Larson's have (1993 57.61(d) publishers copy §
editors and locate full of 1998) renumbering and to track the revisions made to and I copy old was found. As as of that section. No of the text best 84.01[4], 57.61(d) determine, §in encompassed § can nowis 63Herdt, 1999), (LIRC, June available No. .1979018557 See Krez- at also www.dwd.state.wi.us/lirc/wcdecsns/345.htm. man, 1993016147, available at No. www.dwd.state.wi.us/lirc/ wcdecsns/267.htm; No. Dep't, v. Pub. Instruction Morford (LIRC, 3, 1996), Oct. available at 92073132 www.dwd- .state.wi.us /lirc/wcdecsns/32D135Fmor.htm. do not cite the Larson treatise at
Some LIRC decisions all, only § DWD Balcze relying on Wis. Admin. Code 80.34 and See, e.g., Corp., v. No. wski. Cole Roadmaster 1996022902 1999), (LIRC, July 29, at available www.dwd.state.wi.us/lirc/ wcdecsns/355.htm.
c great weight 91. Under deference standard of review this court's task been should have to deter- injured mine whether LIRC's conclusion of that an law must worker demonstrate that he or she made a rea- job post-injury part sonable search as of her his or prima interpretation facie odd-lot case ais reasonable 102.17(7)(a), § Balczewski, Stat. Wis. Ad- Wis. weight min. Code DWD 80.34. re- Great deference quires interpretation this court to sustain LIRC's just if law "even an alternative view of the law is as requires reasonable or even more reasonable," but court if to overturn LIRC's determination LIRC's inter- pretation of the law is unreasonable.64 weight
¶ 92. Great deference not a result- oriented standard review and its use does not mean rubber-stamp agency court must decision. subsequent appeals
For a LIRC case
to the court of
decision
case,
present
explaining
meanings
in the
the two
facie
both,
applying
using
case and
Wis. Admin. Code DWD
determining
80.34 in
whether
made
the worker has
case,
Kenosha,
facie
see
v. County
Istvanek
No. 2000045183
(LIRC,
25, 2004),
March
available at www.dwd.state.wi.us/
lirc/wcdecsns/804.htm.
64Brown,
LIRC,
2dWis.
19. See also UFE Inc. v.
274, 287,
(1996); Harnischfeger
2d
Wis.
N.W.2d 57
*44
Corp.,
The deference were this court to arising prior reduce the confusion from our the statements of agency interpretations standard for of of in review statutes explanation For an and Wisconsin. criticism of the court's approach, Massa, "formalistic" see Salvatore The Standards of Wisconsin, Interpretations Agency Review 83 Statutes of (2000) Marq. Rev. (supporting L. 597 a test of institutional competence).
189 "great weight" Applying of standard deferential the agree appeals of and the I with the court review, opinion interpretation majority odd- that LIRC's the substantially the For lot cannot be sustained. doctrine majority appeals the the court and same reasons as interpretation opinion forth, I conclude that LIRC's set is unreasonable. forth, I the
¶ set would affirm 93. For the reasons appeals separately in I write order decision. court clarify statutory of the odd-lot doctrine the basis majority opinion the should the level deference that interpretation. statutory LIRC's have afforded I ANN ¶ am authorized to state that Justice 94. joins BRADLEY this concurrence. WALSH {concurring). I ¶ BRADLEY,J. 95. ANN WALSH highlight my separately to concerns with the write majority opinion. majority again, reaches out Once the needlessly was issue that neither addresses by argued. parties briefed If the raised nor go path, majority going it is best that is down this it get right. it majority intro- Here the reaches out and 96. foreign jurisprudence: concept to our
duces judge-made plays a role in worker's com- common law parties pensation advance decisions. Neither argument nor make the odd-lot doctrine issue explained DILHR, 2d Balczewski v. Wis. (1977), judicial anything is other than N.W.2d provision interpretation of the relevant in the worker's majority compensation Nevertheless, tackles act. the issue. generally I that the rule of law believe developed parties are raised
best when issues by fire of briefs and oral and then tested adversarial *45 arguments. "[t]he premise Indeed, fundamental of the adversary process is that these advocates will uncover present arguments more useful information and developed by the decision maker than would he judicial acting inquisitorial officer on in an his own system." Playing Adam A. & Smith, Milani Michael R. Sponte By A At God: Critical Look Sua Decisions (2002) Appellate Courts, 69 Tenn. L. Rev. (1992) (citing Burke, United States v. 504 U.S. (Scalia, concurring)). J., Additionally suspect majority's
¶ 98. I am concept. aptly As new described in the concurrence compensation outgrowth above, worker's not an judge-made carefully our common law. Rather it ais uniquely legislative crafted and balanced All act. of our judicial represent application decisions the court's interpretation together of the act with its attendant regulations. administrative There no common exists compensation jurisprudence. law in our worker's respectfully ¶ 99. reasons, For stated I above concur. notes considered the 102.17(7)(a) § under Wis. Stat. and the factors enumerated § DWD 80.34 in connection with its determination that Beecher earning capacity percent, is, sustained loss of partial earning loss of LIRC did or capacity. not discuss even cite or statute administrative rule connection with its evalu Accordingly, ation of Beecher’s odd-lot facie case. LIRC’s 102.17(7)(a) reference to Wis. Stat. and DWD 80.34 cannot agency be characterized as a conclusion enact ment statute and administrative rule the odd-lot modified recognized doctrine in Balczewski.