CBS, INC., аnd Lumbermens Mutual Casualty Company, Plaintiffs-Appellants-Petitioners, v. LABOR & INDUSTRY REVIEW COMMISSION and Richard Kamps, Defendants-Respondents.
No. 96-3707
Supreme Court of Wisconsin
June 30, 1998
219 Wis. 2d 564 | 579 N.W.2d 668
Oral argument April 8, 1998.
For the defendant-respondent, LIRC, the cause was argued by Lowell E. Nass, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
For the defendant-respondent, Richard Kamps, there was a brief by Scott C. Woldt and Curtis & Neal Law Offices, Oshkosh and oral argument by Scott C. Woldt.
¶ 1. JANINE P. GESKE, J. CBS, Inc. and Lumbermens Mutual Casualty Company (collectively, CBS) seek review of a published decision of the court of appeals.1 The court of appeals affirmed a decision of the circuit court for Waukesha County, Patrick L. Snyder, Judge, upholding the Labor and Industry Review Commission‘s (LIRC) determination that, based on the particular facts and circumstances, a ski injury of a traveling employee was compensable as an activity incidental to living within the meaning of
FACTS AND PROCEDURAL HISTORY
¶ 2. The following are the facts as found by LIRC. In February 1994, CBS hired Richard Kamps (Kamps) to assist in the television coverage of the 1994 Winter Olympic Games in Lillehammer, Norway. Kamps was to work as a “runner” for CBS on the bobsled and luge events from February 6 to February 27, 1994. Kamps’ duties required him to leave his home and stay in the Lillehammer area during the run of the Olympics. CBS paid Kamps a daily wage, and provided meals and lodging. On February 21, CBS gave Kamps and his crew the day off from work. There were no Olympic competitions scheduled that day for Kamps and his crew to cover. During this free time, the crew members were free to do as they wished.3 Kamps’ immediate supervisor suggested that the crew go skiing as a group, which
¶ 3. The record contains additional facts regarding Kamps’ qualifications for the CBS job which support LIRC‘s findings. Prior to this injury, Kamps had worked for CBS on a number of other occasions since 1989. That work included serving as a statistician, runner and stage manager for athletic broadcasts including the Super Bowl and NFL games, the World Series and playoff games. Kamps testified that his strong athletic background in all sports helped in his positions with CBS. That background inсluded high
¶ 4. The record also contains facts about Kamps’ work detail for CBS at Lillehammer which support LIRC‘s findings. Kamps was originally hired to help cover the freestyle skiing event. At some point that assignment was changed to the bobsled and luge events. Kamps’ duties as a production support person included transporting camera crews and linking those crews with the producer. Kamps identified the Olympic competitors and set up video shots.
¶ 5. Evidence in the record also demonstrates that during Kamps’ stay in Norway as a CBS employee, CBS provided access to a swimming pool and bar for its workers. Kamps would talk with the athletes at night about the effect of the snow and ice conditions on the competition.
¶ 6. Following his ski injury, Kamps commenced a worker‘s compensation claim with the Department of Industry, Labor and Human Relations (DILHR). The administrative law judge (ALJ) dismissed Kamps’ application for a hearing, ruling that snow skiing is not usual and proper customary conduct of a traveling employee. Kamps filed a petition for review by LIRC. LIRC reversed the decision of the ALJ, concluding:
The applicant was a traveling employe in a location where skiing was a reasonable form of recreation incidental to living. The activity was encouraged and supported by the employer, even to the extent of providing the applicant with a free ski lift pass. While the applicant assumed some risk by going skiing, it was not an unreasonable risk nor one unexpected or unsanctioned by the employer. Based on the particular facts and circumstances of this case, the commission finds that the applicant‘s knee
injury is compensable as an activity incidental to living, within the meaning of Section 102.03(f), Stats. (sic)
¶ 7. The circuit court, as well as the cоurt of appeals, concluded that there was credible and substantial evidence to support LIRC‘s findings. Accordingly, the circuit court and the court of appeals affirmed the commission‘s decision.
I.
¶ 8. Findings of fact made by LIRC when acting within its powers are conclusive in the absence of fraud. See
If the commission‘s order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission‘s order or award and remand the case to the commission if the commission‘s order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.
Factual findings made by the commission which are supported by credible and substantial evidence are conclusive. See Brakebush Bros., Inc. v. LIRC, 210 Wis. 2d 624, 630-31, 563 N.W.2d 512 (1997). In addition, we must consider conclusive any finding by the commission based upon a reasonable inference from the credible evidence. See Sauerwein v. ILHR Dep‘t, 82 Wis. 2d 294, 300–302, 262 N.W.2d 126 (1978); Hunter v. ILHR Dep‘t, 64 Wis. 2d 97, 101-02, 218 N.W.2d 314 (1974); Kraynick v. Industrial Comm‘n, 34 Wis. 2d 107, 111, 148 N.W.2d 668 (1967). If more than one inference can reasonably be drawn from the evidence, a question of fact is presented. See Vocational, Tech. & Adult Educ. Dist. v. ILHR Dept., 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977).
¶ 9. CBS urges us to review LIRC‘s interpretation of the statute, as well as its appliсation to these facts. Normally, statutory interpretation presents a question of law which a court reviews using a de novo standard. See Hagen v. LIRC, 210 Wis. 2d 12, 18, 563 N.W.2d 454 (1997) (citing Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996)). Citing our decision in Nottelson v. ILHR Department, 94 Wis. 2d 106, 115-16, 287 N.W.2d 763 (1980), CBS argues that when the question presented is whether a particular set of facts meets a statutory standard, the question is one of law. LIRC and Kamps counter that in this case we are reviewing only a question of ultimate fact.
¶ 10. A contest over whether the question presented is one of law or fact recurs in cases brought to this court. Resolution of that question is not always easy. Indeed, our opinion in Nottelson fairly characterized the dilemma:
One of the most troublesome issues in administrative law is determining whether...the appliсation of a statutory concept to a concrete fact situation, should be treated as a question of fact or of law for purposes of judicial review. In many cases we have said that the determination of whether the facts fulfill a particular legal standard is a question of law....Nevertheless, merely labeling the question as a question of law and labeling the commission‘s
determination as a conclusion of law does not mean that the court should disregard the commission‘s determination. Determination[s] of [“a deviation for a private or personal purpose,” or of “acts reasonably necessary for living or incidental thereto“] call[] for a value judgment, and judicial review of such a value judgment, though a question of law, requires the court to decide in each type of case the extent to which it should substitute its evaluation for that of the administrative agency. We have recognized that when the expertise of the administrative agency is significant to the value judgment (to the determination of a legal question), the agency‘s decision, although not controlling, should be given weight. (Citations and footnotes omitted.)
Nottelson, 94 Wis. 2d at 115-117.
¶ 11. When the agency uses its expertise to interpret a statute, we accord the agency one of two levels of deference, namely, “due weight,” or “great weight.” See Hagen, 210 Wis. 2d at 18 (citing Jicha v. DILHR, 169 Wis. 2d 284, 290–291, 485 N.W.2d 256 (1992)). There are four factors we use to determine whether great weight deference is appropriate:
Great weight deference to an agency‘s interpretation of a statute is appropriate when: (1) the agency is charged by the legislature with administering the statute; (2) the interpretation of the agency is one of long standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency‘s interpretation will provide uniformity in the application of the statutе.
Id. at 18-19 (citing Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995)).
¶ 12. We conclude that it is proper to apply great weight deference to LIRC‘s interpretation of
¶ 13. Because the proper standard of review in this case is great weight deference, we will affirm LIRC‘s interpretation of
¶ 14. In this case, the parties do not dispute that Kamps was a traveling employee under
Every employe whose employment requires the employe to travel shall be deemed to be performing service growing out of and incidental to the employe‘s employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employe‘s employment.
¶ 15. This provision was creаted to remedy situations in which employees, whose work required them to live away from home for periods of time, were not compensated for injuries sustained during normal activities of daily living on a business trip. See Neese v. State Medical Soc‘y, 36 Wis. 2d 497, 504, 153 N.W.2d 552 (1967). The Neese court identified Creamery Package Mfg. Co. v. Industrial Comm., 211 Wis. 326, 248 N.W.2d 140 (1933) as an example of an outcome that
¶ 16. Because those early cases showed that “slight circumstances were apparently sufficient to show a ‘deviation from employment,’ ” the legislature enacted
III.
¶ 17. CBS contends that skiing is not “reasonably necessary for living or incidental thereto” as required by
¶ 18. By analogizing the recreational activities of traveling and non-traveling employees, CBS essentially asks us to disregard the intent of the legislature to grant traveling employees broader protection for after-hours activities when their employment requires them to be away from home. See Hansen, 258 Wis. at 628, (concluding that traveling salesman‘s death was compensablе when his body was found not far from the restaurant where he had dined, and there was no evidence that he had abandoned his employment for a private or personal enterprise). Moreover, because we review LIRC‘s determination based on the particular facts and circumstances of the case, we could not rule, as a matter of law, that a recreational activity such as skiing is never reasonably necessary for living, or incidental thereto. See, e.g., City of Phillips v. ILHR Dep‘t, 56 Wis. 2d 569, 579, 202 N.W.2d 249 (1972) (“[t]his court has pointedly refrained from ruling as a matter of law that intoxication is synonymous with personal deviation“).
IV.
¶ 19. Next, CBS disagrees with LIRC‘s present application of the statutory presumption in favor of traveling employees. CBS argues that Kamps engaged in a deviation from employment for a private or personal purpose. CBS contends that there was no
¶ 20. CBS also cites Dibble v. DILHR, 40 Wis. 2d 341, 161 N.W.2d 913 (1968), where a salesman was killed in an automobile accident after driving away from his motel several hours after completing his sales calls for the day and after having numerous drinks in a lounge. The Dibble court held that the employee‘s alcohol indulgence was not an act reasonably necessary or incidental to living. Dibble, 40 Wis. 2d at 350. The analyses in both Neese and Dibble demonstrate that even when a traveling employee еngages in a deviation for a personal or private purposes, the agency or reviewing court must still consider whether the deviation is an act reasonably necessary for living or incidental thereto.
¶ 21. CBS also argues that Kamps’ skiing was not usual and proper to his employment purpose, and thus is not compensable. Hansen provides that for an injury to be compensable, the worker must be doing the “usual legitimate things incidental to daily existence.” Hansen, 258 Wis. at 626. CBS points to Simons v. Industrial Commission, 262 Wis. 454, 55 N.W.2d 358 (1952) and Tyrell v. Industrial Commission, 27 Wis. 2d 219, 133 N.W.2d 810 (1965), as examples of injuries
¶ 22. In сomparing the facts of prior cases to the facts at bar, CBS fails to address the level of deference we accord LIRC‘s determinations. We are well aware that in some cases injuries sustained during recreational activities have been compensable, see, e.g., Phillips, 56 Wis. 2d at 576 (concluding that it would be speculative to find a deviation from employment when employee was hit by a car early in the morning, after stopping for a late night snack and visiting several taverns), and in others they have not. Compare Phillips with Dibble, 40 Wis. 2d at 350-51. The focus of our inquiry on review is not whether recreational downhill skiing by a traveling employee is generally compensable. Rather, our focus is on the reasonableness of LIRC‘s determination, based upon the particular facts and circumstances in this case. Because we afford LIRC great weight deference, we must affirm its decision if it is reasonable. See Hagen, 210 Wis. 2d at 20. LIRC‘s interpretation of
V.
¶ 23. We conclude that LIRC‘s interpretation of
¶ 24. The legislature created
¶ 25. Finally, LIRC‘s interpretation of
¶ 26. In affirming LIRC‘s factual findings and interpretation, the court of appeals gave some weight to the particular location of Kamps’ traveling employment assignment. The court of appeals concluded that “there was sufficient credible evidence for LIRC to conclude that skiing was a reasonable form of recreation incidental to living in Lillehammer,” CBS, Inc. v. LIRC, 213 Wis. 2d 285, 294, 570 N.W.2d 446 (Ct. App. 1997). In upholding LIRC‘s conclusion, the court of appeals also relied on foreign cases such as Proctor v. SAIF Corp., 860 P.2d 828 (Or. Ct. App. 1993) and Lewis v. Knappen Tippets Abbett Eng‘g Co., 108 N.E.2d 609 (N.Y. 1952), as well as commentary in 2 Arthur Larson,
¶ 27. We agree that while the location of the traveling employee‘s work assignment is a factor in determining the reasonableness of his or her activity conducted there, it is not the only factor upon which the agency may base its determination of reasonable activity incidental to living. In this case, LIRC considered other factors, including employer support for Kamps’ activity.
¶ 28. In summary, LIRC‘s interpretation of
In cases where the evidence is evenly balanced and an inference may be drawn one way as easily аs another, the scale should be turned in favor of the claimant, principally because it was the intent and purpose of the act to bring border-line cases under it and to close up avenues of escape which would naturally be suggested to those seeking to evade liability under the act.
Phillips, 56 Wis. 2d at 580. Under the particular facts and circumstances of this case, and applying great weight deference, we conclude that LIRC reasonably interpreted Kamps’ ski injury as an act “reasonably necessary for living or incidental thereto.”
VI.
¶ 29. Although we affirm the decision of the court of appeals which upheld LIRC‘s determination, we
¶ 30. We also agree with CBS’ criticism of the court of appeals’ adoption of LIRC‘s statement that “the risks of skiing were not unreasonable, nor were they unexpected or unsanctioned by CBS,” CBS, 213 Wis. 2d at 294, insofar as the statement appears to articulate a new test for compensability under the traveling employee doctrine. This statement is not part of the presumption and exceptions thereto set out in
¶ 31. Nonetheless, as demonstrated above, LIRC‘s interpretation that Kamps’ ski injury was an act reasonably necessary for living or incidental thereto was a reasonable one, supported by credible and substantial evidence, and without reliance on the “unexpected or unsanctioned risk” inquiry.
By the Court.—The decision of the court of appeals is affirmed.
¶ 33. N. PATRICK CROOKS, J. (concurring). I agree with the mandate in this case. I write separately to address the applicable standard of review, and to state my concern with the rigid restrictions placed on a court reviewing decisions of the LIRC involving the application of
¶ 34. In this case, the parties disagree regarding whether the issue presented involves a question of fact or a question of law. Kamps and LIRC argue that the issue of whether Kamps’ skiing injury is an activity incidental to living in accord with
¶ 35. Cases from this court reviewing decisions involving
¶ 36. The Wisconsin Legislature has afforded reviewing courts extremely limited authority in reviewing decisions of the LIRC, particularly where a court reviews findings of fact. As stated by the majority, “[t]he findings of fact made by the [LIRC] acting within its powers shall, in the absence of fraud, be conclusive.”
¶ 37. Practically, the language of
¶ 38. The statutes involved, and corresponding case law from this court, virtually prohibit any meaningful judicial review of a factual decision of the LIRC, except in rare circumstances, such as fraud. The result of this body of law is “that the findings of the [LIRC] must be upheld upon appeal even though they may be contrary to the great weight and clear preponderance of the evidence.” Consolidated Papers, Inc. v. ILHR Dep‘t, 76 Wis. 2d 210, 215, 251 N.W.2d 69 (1977)(emphasis supplied)(citing R.T. Madden, Inc. v. ILHR Dep‘t, 43 Wis. 2d 528, 548, 169 N.W.2d 73 (1969); Briggs & Stratton Corp. v. ILHR Dep‘t, 43 Wis. 2d 398, 404, 168 N.W.2d 817 (1969)).
¶ 39. I recognize that “[t]he legislative purpose in restricting judicial review in worker‘s comрensation cases is to limit appeals and protracted litigation in the interest of attaining speedy justice for the employee.” Goranson, 94 Wis. 2d at 553 (citations omitted). In an effort to expedite the interests of justice, however, I conclude that judicial review of the LIRC‘s application of
¶ 41. Any deviation from precedent should be considered only through a thorough analysis and overview of the law as it currently exists.
“[T]he doctrine of stare decisis...is a doctrine that demands respect in a society governed by the rule of law.” Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419-20 (1983), overruled on other grounds by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Such “fidelity to precedent” helps to ensure that the existing law will “not be abandoned without strong justification.” State v. Stevens, 181 Wis. 2d 410, 441, 551 N.W.2d 591 (1994) (Abrahamson, J., concurring), cert. denied, —U.S. —, 115 S. Ct. 2245 (1995). When existing law “is open to revision in every case, ‘deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.’ ” Citizens Utility Bd. v. Klauser, 194 Wis. 2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, J. dissenting) (citation omitted). Unless there is a compelling reason to divert from its precedent, a court should abide by the precedent it has established.
¶ 42. In arguing that the LIRC‘s decision under
¶ 43. Similarly, the majority cites Hagen v. LIRC, 210 Wis. 2d 12, 18, 563 N.W.2d 454 (1997), for its conclusions that the issue presented in this case is a question of law. Hagen involved the application of
¶ 44. In conclusion, I agree with the mandate affirming the decision of the LIRC. I write only to state that, based upon existing case law, the issue in this case presents a question of fact. I also write to state my dissatisfaction with the restrictive standard of review to which this court is bound in reviewing decisions of the LIRC, pаrticularly those involving the application of
¶ 45. I am authorized to state that Justice JON P. WILCOX joins this concurrence.