*1 Or O cn Bonding Company an Massachusetts & Insurance other, vs. Appellants, another, Respondents. April
March 1957. 8 *4 brief was on the For the cause submitted appellants Brennan, of Brennan & Brennan Milwaukee. Commission there For respondent Levitan, as- and Mortimer Attorney a brief General Levitan. and oral Mr. argument by sistant attorney general, The award which challenge appellants Fairchild, J. Stats., made under sec. which provides part: to receive and has received “An who who this chapter, compensation pursuant instructions pursuant provisions to and act as the Vocational Rehabilitation known congress Act, Law 113—78th and amendments thereto (Public resi- he holds as administered state in which Congress) at the or which he resided time becoming phys- dence shall, in addition to his other indemnity, ically handicapped, and, if his necessary actual travel expenses paid than at the he receives such instructions elsewhere place residence, maintenance, actual costs of his his and necessary rehabilitation, conditions subject following during and . . . limitations: He not have of travel and costs may
“(3) in excess of account of for a maintenance on training period in all. weeks *5 510 The commission shall determine the
“(4) rights and lia- bilities of the with like effect as it under this section in like manner parties and issues
does other under compensation.” It is clear that Klees entitled to workmen’s compensa- it; tion and received that at the and time the hearing his tuition at the state university board being paid by of vocational and If adult education. he is benefit under the Federal Vocational Rehabilitation Act USCA, secs. 31 to will from (29 follow 42), provi- Stats., sions of sec. of travel and expense costs of maintenance weeks must his up paid by and insurer. out that Klees Appellants point has been gainfully employed during several since his periods They that he is not injury. argue of’ type education he is furnished because he is not in- being so as to be unfit to in a capacitated engage remunerative occu- In essence pation. they dispute interpretation placed upon the federal act the state board that Klees considering to aid. USCA,
The federal act sec. an (29 makes 31) appropria- tion : “For the purpose assisting states in rehabilitating so physically handicapped individuals that they may prepare for remunerative engage employment extent of their not their capabilities, thereby only social increasing and economic also but well-being productive capacity the Nation.” Sec. 32 for provides allotment money states for an expenditure Sec. 35 approved plan. pro- vides for the of a approval state for plan vocational-rehabili- tation health, education, services secretary welfare if the meets plan specific requirements. Sec. 41 term, defines the “vocational rehabilitation services” so as include, other among ... things, “training physically individuals.” The term handicapped “physically handicapped individual” defined “any individual who under a or mental physical which disability constitutes substantial *6 but which is of such nature that to handicap employment, be services may reasonably expected vocational-rehabilitation him fit to in a remunerative to render engage occupation.” 41.71, the Rehabilita- is designated Sec. Wis. Stats. it state the benefits of the federal tion Law. the By accepts to with the authorizes the state board co-operate act and of the federal act. federal out carrying purposes agency as is defined in sub. “any person” (3) (a) “Handicapped in- who, or mental defect or reason of a person by physical accident, injury, whether or firmity, congenital acquired by disease, or is or be to be or totally partially may expected and who may for remunerative occupation, incapacitated to be fit a remunerative be to reasonably engage expected service.” after vocational-rehabilitation occupation receiving with The is persons board required acquaint handicapped them the selec- rehabilitation facilities and counsel regarding tion of a suitable location and such training may prescribe their rehabilitation. be insure vocational necessary to The which arises at the outset is the scope any question sec. review the Industrial Commission (acting 102.61, in fur- of the action of the state board Stats.) for It must training. Klees with tuition university nishing board, before be that the state spending public presumed action was au- for that concluded that such funds purpose, state rehabilitation laws and thorized the federal and those laws has been The duty administering state plan. on the state board. Necessarily performance imposed of those laws. that involves the duty interpretation Thet has not been any general power Industrial Commission given If, under sec. the acts of the state board. to review benefits, Klees, it should determine who them, the state it would determining not board, an un- administrative was making another agency, funds. Such determination expenditure public authorized have effect not under the statutes any legal upon would continued the state board expenditure by but would have only the effect of of the relieving obligation pro- vide the of travel and maintenance expense weeks.
Under these circumstances it does not seem that legislature intended give Industrial Commission any power the rehabilitation interpret laws. We conclude that any review power given
limited. Unless is shown before the commission that material highly facts were to or withheld from misrepresented the state or board that the state board has an inter- applied pretation rehabilitation laws which is entirely outside the reasonable scope and hence a clear interpretation *7 abuse of administrative the power, Industrial Commission must find that any who is applicant aid from the state board is also to it. entitled
One in does not position have the appellants’ to right board, a before the state but has a had hearing before hearing the Industrial on the Commission occurrence of the injury him and other facts liable for making payment compensa- tion. Pie must the further for accept liability travel and maintenance in connection with a rehabilitation on program the which state board is to willing spend public funds unless he can demonstrate at the before the hearing Industrial Com- mission that there has been fraud or the type abuse of above to. referred power
There is in the record before us that nothing to indicate the state board was not of all material facts. As apprised stated, the .previously made to challenge by appellants goes the the state board of the interpretation by rehabilitation laws. This is more liberal favor of interpretation appli- cants whose for have been capacities im- employment only than the paired think appellants We cannot proper. say, however, that this is so interpretation clearly wrong Klees is not the aid which the state board is him. the furnishing award the Accordingly by
lO r-H CO court the circuit and was confirmed Commission properly be affirmed. the must judgment affirmed. By Judgment Court.-— that the While judg- (concurring). agreeing Steinle, J. affirmed, be I not able concur the view ment must am that the Industrial Commission bound the determina- state Bernard tion of the vocational board that employee, Klees, is a the vocational- handicapped person that when of the state rehabilitation and training, proof matter vocational board’s determination with to such respect commission, was could no challenge there presented Further, fraud. I of it or except misrepresentation had cannot that when the Industrial Commission agree proof determination, it of the board’s the Indus- before vocational to direct trial was as matter course obliged or his insurer to pay employee’s account for a of travel maintenance on of training period weeks. it trial court held that was correctly In my opinion to make its own de- of the Industrial Commission the duty “handicapped to whether termination rehabilitation. clear vocational It seems person” Stats., 102.61 (3), (4) under sec. *8 also to the determine the the Industrial Commission duty and costs of mainte- the travel expenses for which period to be nance were paid. of the and analysis the duty right
The trial court’s to determine whether the to the vocational-rehabilitation in training, was follows: as part Klees take a re- or not
“As to whether in and we with agree course probation parole, habilitative of fact to be by that this is determined question plaintiffs ‘The commission 102.61 (4) provides: the commission. Sec. 514
shall determine and liabilities the under rights parties this section in like manner and with like effect as it other does issues under Admittedly, the commission does compensation.’ not determine an to the train- rights with employee’s respect itself, cost and therefor. That is done ing payment by However, state vocational board sec. pursuant 41.71. when it comes travel and maintenance expenses pro- for in vided the commission must make the then of entitlement finding credible evidence as supported by pro- in vided 102.61 (4) (supra). all,
“After employer not liable for the expenses of the actual training program travel -only 41.71-— maintenance costs under 102.61. As such expenses he is entitled ato the commission proper finding by based on credible evidence. The cannot bound employer by the determination of the state board at a where proceeding no notice of which was given and from which employer has no to seek a right review.
“It of this court opinion that the issue here simple is as follows : presented
“Is there credible evidence this record any to support commission’s that Klees was entitled finding to rehabilita tion treatment under 41.71 and therefore entitled to travel so, maintenance under 102.61 ? If this court is bound such v. finding. Gallenberg Industrial Comm. 40, 269 Wis. 43 N. W. (1955), (2d) 550]; Giant [68 v. Industrial Co. Comm. 271 Grip Mfg. (1956), . . N. W. . (2d) [74 182]. indicated, we feel “As previously are not plaintiffs the determination the state bound vocational board Klees vocational-rehabilitative training, is mere in so far finding hearsay Such affects the However, this rights plaintiffs proceeding. we credible feel there is evidence in the ample record to support, determination by the state independently any vocational *9 within a board, Klees was handicapped person finding sec. 41.71 (3) of meaning (a).” an or his insurer pay employee’s an To require of of maintenance on account costs of travel and notice and hearing without affording vocational training, status the alleged handicapped to challenge to such employer reasonable need such training, and the of the employee thereto, would, in my opinion, present and his entitlement of such employer property a serious question deprivation of sec. law violation insurer without due process or constitution. should not States We art. XIV United 102.61, Stats., which rise a construction of sec. gives adopt where, as is the of its constitutionality serious doubt here, such a different construction which will avoid case doubt, the terms of the statute. Swanke permissible 92, 99, 60 N. 265 Wis. W. County (2d) Oneida (1953), v. 756, 62 N. W. 7. (2d) an made express finding
Since that the Klees “is entitled to on sufficient evidence to the instructions pursuant provisions act of discussed question majority congress,” board’s deter- effect of the state vocational as to binding is not decision this necessary mination eligibility therefore, In we not to on pass my opinion, ought appeal. at this time. the question that Mr. to state authorized
I am Broadfoot Justice Wingert in this concurring opinion. join Mr. Justice