XCEL ENERGY SERVICES, INC., Petitioner-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION and John Smoczyk, Respondents-Respondents.
No. 2011AP203
Supreme Court
July 11, 2013
2013 WI 64 | 833 N.W.2d 665
Oral argument January 11, 2013.
For the respondents-respondents, the cause was argued by Richard Briles Moriarty, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
¶ 1. PATIENCE DRAKE ROGGENSACK, J. This is a review of a published opinion of the court of appeals1 that reversed a decision of the Chippewa County Circuit Court,2 which in turn had affirmed an order of the Labor and Industry Review Commission (LIRC) awarding worker‘s compensation benefits to John Smoczyk for his permanent total disability that resulted from a work-related injury during his employment by Xcel Energy Services, Inc. Three issues are presented. First, Xcel claims that the court of appeals erred when it concluded that the circuit court was required to dismiss Xcel‘s complaint for lack of competency based on Xcel‘s failure to name its insurer, ACE American Insurance Co., as an “adverse party,” pursuant to
¶ 2. We conclude that the circuit court had competency to adjudicate Xcel‘s complaint, notwithstanding Xcel‘s omission of ACE, because ACE was not an “adverse party” for purposes of
¶ 3. Additionally, rather than remanding to the court of appeals to review the merits of Xcel‘s complaint, which the court of appeals did not review, we affirm LIRC‘s award in favor of Smoczyk. First, based on the evidence of record, LIRC‘s finding that Smoczyk is entitled to permanent total disability benefits on an odd-lot basis is supported by credible and substantial evidence. Second, Xcel has not demonstrated that LIRC exceeded its authority in reaching a conclusion that departed from an ALJ‘s order in Smoczyk‘s worker‘s compensation proceeding before the Department of Workforce Development (DWD). Therefore, we reverse the decision of the court of appeals and we remand with instructions to affirm LIRC‘s decision awarding permanent total disability benefits to Smoczyk.
I. BACKGROUND
¶ 4. On January 25, 2007, Smoczyk, while employed by Xcel as an ironworker, injured his back. After taking a short break to rest his back, Smoczyk returned to work and finished his shift.6
¶ 5. After experiencing significant pain over the weekend, Smoczyk returned to work the following Monday and notified his supervisor about the back injury. On February 1, 2007, Smoczyk met with Dr. Jane Stark, accompanied by a representative of Xcel, Scott Crotty.
¶ 6. Soon thereafter, Smoczyk began undergoing physical therapy, but in late February 2007, believing that Dr. Stark‘s recommendations were not in his best interest, Smoczyk began treatment with Dr. Joseph Hebl. Dr. Hebl continued the recommendation for physical therapy and imposed light-duty restrictions. Soon after Dr. Hebl imposed light-duty restrictions, Smoczyk was laid off as part of Xcel‘s seasonal layoffs; however, Smoczyk was never rehired and has not worked since being laid off in February 2007.
¶ 7. Although Smoczyk experienced some relief during the course of physical therapy, he returned to Dr. Hebl in May 2007, and reported that his back pain had worsened. Over the course of the next two months, Smoczyk reported varying pain levels for his back, while also reporting new pain radiating down both legs to the bottom of his feet. Dr. Hebl suggested that Smoczyk consider a consultation at the Pain Clinic of Northwestern Wisconsin, where he might obtain more aggressive treatment, including steroid injections or possibly spinal surgery. Smoczyk expressed some concern that such invasive treatments might exacerbate his condition or create new pain.
¶ 8. Notwithstanding his concerns, Smoczyk visited the Pain Clinic on July 13, 2007, and met with Dr. Mark Schlimgen. Dr. Schlimgen recommended further physical therapy, as well as an epidural steroid injection intended to address Smoczyk‘s lower back pain. Smoczyk received epidural steroid injections on July 13 and 27, both of which provided some relief. Additionally, Smoczyk continued to attend physical therapy treatments and to practice exercises at home. Smoczyk also
¶ 9. In early September 2007, Dr. Hebl suggested that Smoczyk apply for Social Security Disability benefits, based on Dr. Hebl‘s opinion that Smoczyk would be unable to return to work, and that he would be unable to pursue any other gainful employment. Later that month, Smoczyk met with an independent medical examiner, Dr. John Dowdle, at the request of Xcel. Dr. Dowdle opined that the work injury in January 2007 exacerbated a preexisting spinal condition, and that the treatments he had been receiving were “reasonable and necessary. . . [having] been done in [an] attempt to manage his back pain.”
¶ 10. Dr. Dowdle suggested that there existed a number of treatment options for Smoczyk. One was a procedure called a medial branch block, which would be intended to temporarily decrease Smoczyk‘s back pain and determine whether he might be a candidate for a subsequent procedure, a radiofrequency facet denervation, which might help eliminate some of his lower back pain. Dr. Dowdle also recommended work restrictions: a 20-25 pound maximum lifting limit, minimal bending and lifting, and avoiding prolonged single positioning. Additionally, Dr. Dowdle assessed a five percent permanent partial disability rating, and recommended that Smoczyk discontinue physical therapy.
¶ 11. Smoczyk returned to Dr. Hebl on October 3, 2007, and reported worsening neck pain, as well as continuing, persistent back and leg pain. At that visit, Dr. Hebl removed Smoczyk from work-availability and reiterated that Smoczyk should continue to pursue Social Security Disability benefits. Thereafter, Smoczyk was deemed eligible for Social Security Disability ben-
¶ 12. During late fall and winter of 2007, Smoczyk continued treatment with Dr. Schlimgen, who discussed Dr. Dowdle‘s recommendation for a radiofrequency rhizotomy procedure with Smoczyk.7 Specifically, Dr. Schlimgen noted that the recommended procedure would address back and hip pain, but that it would not treat Smoczyk‘s leg pain, which still comprised a significant portion of his overall pain. Dr. Schlimgen noted that because he could not rule out the facet joints as “being at least a contributor” to Smoczyk‘s back and hip pain, “it would be reasonable to consider a medial branch blockade to determine if the facet joints are contributing to this portion of his pain.” Dr. Hebl later concurred with these recommendations.
¶ 13. Smoczyk again met with Dr. Hebl in February 2008, and reiterated his reluctance to undergo additional procedures, based on his concern of exacerbating his pain. Based on Smoczyk‘s hesitance to un-
¶ 14. During summer and fall of 2008, Smoczyk underwent two separate vocational assessments, one on his behalf conducted by Sidney Bauer, and the other on Xcel‘s behalf, conducted by John Meltzer. Relying upon Dr. Dowdle‘s suggested limitations, Bauer concluded that Smoczyk‘s only potential occupational opportunities would be in the service industry, but that Smoczyk‘s physical restrictions, his education, and the limited labor market resulted in Smoczyk‘s being permanently and totally disabled under the odd-lot doctrine. Similarly, Bauer concluded that Smoczyk was permanently and totally disabled under Dr. Hebl‘s opinion as well, based on Dr. Hebl‘s recommendation regarding permanent partial disability rating and his suggestion that Smoczyk would be unable to return to gainful employment.
¶ 15. Xcel‘s vocational expert, John Meltzer, also proffered opinions based on the medical conclusions of Drs. Dowdle and Hebl. Based on Dr. Dowdle‘s opinion, Meltzer concluded that Smoczyk would have a 60 to 70 percent decrease in earning capacity, but that with a diligent search, Smoczyk would be able to find suitable light-duty work within his home market. Conversely, based on Dr. Hebl‘s opinion, Meltzer concluded that Smoczyk would be permanently and totally disabled for vocational purposes. Ultimately, Meltzer concluded that Smoczyk could pursue positions in the service industry, such as sales clerk, hotel clerk, or security guard.
¶ 16. On December 16, 2008, a hearing on Smoczyk‘s worker‘s compensation claim was held before the Worker‘s Compensation Division of the DWD. After
¶ 17. Particularly relevant to the dispute now before this court, ALJ Enemuoh-Trammell held that Smoczyk‘s failure to pursue a medial branch blockade to determine his candidacy for a radiofrequency rhizotomy precluded a determination on permanent total disability. Accordingly, the ALJ entered an interlocutory order that provided that if Smoczyk failed to pursue “further treatment” within two years of the order, Xcel could seek a final order on the findings and conclusions at issue.
¶ 18. Soon after the ALJ‘s decision, Smoczyk again visited Dr. Hebl, who suggested that the radiofrequency rhizotomy referred to by the ALJ was no longer feasible. This conclusion was affirmed by Dr. Schlimgen, who noted that it was unlikely that a rhizotomy would provide Smoczyk any relief. Based on that conclusion, Dr. Schlimgen expressly noted that he “recommended against [rhizotomy] as a treatment option,” and instead recommended occasional corticosteroid injections, physical therapy, and exercise as methods of pain management.
¶ 19. On August 11, 2009, a second DWD hearing was held, this time before ALJ Mary Lynn Endter. After hearing testimony from Smoczyk and considering the evidence of record, ALJ Endter concluded that Smoczyk had a permanent partial disability of 60 percent, based
¶ 20. Smoczyk then filed a timely petition for review with LIRC, seeking relief from ALJ Endter‘s decision denying permanent total disability benefits. In a written order, LIRC reviewed the opinions of the medical and vocational experts, the testimony of Smoczyk, and the findings and conclusions of the ALJs who had reviewed Smoczyk‘s case. LIRC concluded that, based on the odd-lot doctrine, Smoczyk had made a prima facie case for permanent total disability by showing that he had been “injured in an industrial accident and, because of [his] injury, age, education, and capacity, [he] is unable to secure any continuing and gainful employment.” Smoczyk v. Xcel Energy Servs., Inc., WC Claim No. 2007-009610, at 8 (LIRC, May 6, 2010) (citing Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977)). Based on that showing, LIRC held that the burden shifted to Xcel to show that there were jobs available for Smoczyk, but that Xcel had failed to make such a showing.
¶ 21. In particular, LIRC concluded that the opinion of Smoczyk‘s vocational expert, Bauer, was more persuasive than that of Meltzer. Bauer concluded that even if Smoczyk could compete for jobs in the service industry notwithstanding his age and educational background, the physical components of those jobs (e.g., sitting, standing) would not reasonably accommodate Smoczyk‘s physical restrictions. Accordingly, LIRC concluded that as of February 13, 2008 (the date on which Dr. Hebl concluded that Smoczyk had reached the end of healing), Smoczyk was permanently and totally disabled, and that Xcel and its insurer were required to pay benefits in accordance with that determination.
¶ 23. Xcel filed a timely appeal, based on the same arguments it had raised in the circuit court. The court of appeals, however, declined to reach the merits of LIRC‘s decision. See Xcel, 339 Wis. 2d 413, ¶ 6. Instead, the court concluded that ACE was an “adverse party” under
¶ 24. Xcel first argues that the court of appeals erred in directing the circuit court to dismiss Xcel‘s complaint for lack of competency to proceed due to ACE not being named as an “adverse party” under
¶ 25. Next, Xcel argues that, if we reach the merits of LIRC‘s decision, we should set aside LIRC‘s order because: (1) there was not credible and substantial evidence to support a finding that Smoczyk reasonably refused to undergo the medical procedures suggested by the first ALJ; and (2) LIRC exceeded its authority by awarding Smoczyk benefits contrary to the first ALJ‘s order suggesting that Smoczyk undergo a radiofrequency rhizotomy before benefits could be determined. With regard to LIRC‘s findings of fact, we will uphold those findings if there is “credible and substantial evidence in the record on which reasonable persons could rely to make the same findings.” deBoer Transp., Inc. v. Swenson, 2011 WI 64, ¶ 30, 335 Wis. 2d 599, 804 N.W.2d 658 (quoting Begel v. LIRC, 2001 WI App 134, ¶ 5, 246 Wis. 2d 345, 631 N.W.2d 220 (internal quotation marks omitted)). The question of whether LIRC
III. DISCUSSION
A. “Adverse Party” Requirement Under Wis. Stat. § 102.23(1)(a)
¶ 26. The court of appeals concluded that Xcel‘s failure to name ACE as a defendant in the complaint deprived the circuit court of competency to proceed because ACE was an “adverse party” required to be named under
1. Competency
¶ 27. Competency refers to a “circuit court‘s ability to exercise the subject matter jurisdiction vested in it” by Article VII, Section 8 of the Wisconsin Constitu-
¶ 28. Although a circuit court may not be deprived of jurisdiction by operation of a statute, a circuit court may lack competency to render a valid order or judgment when the parties seeking judicial review fail to meet certain statutory requirements. See id., ¶ 9. Not every failure to comply with statutory requirements will deprive the court of competency, however. “Only when the failure to abide by a statutory mandate is ‘central to the statutory scheme’ of which it is a part will the circuit court‘s competency to proceed be implicated.” See id., ¶ 10 (quoting State v. Bollig, 222 Wis. 2d 558, 567-68, 587 N.W.2d 908 (Ct. App. 1998)).
2. Wis. Stat. § 102.23(1)(a) ‘s “adverse party”
¶ 30. Our interpretation of “adverse party” under
¶ 31. “Adverse party” is not defined under
¶ 32. A dictionary definition from around the
¶ 33. The following year we reaffirmed our earlier interpretation of the term “adverse party” in Gough v. Industrial Commission of Wisconsin, 165 Wis. 632, 633, 162 N.W. 434 (1917), in which a deceased man‘s wife and mother both claimed worker‘s compensation benefits for the man‘s death. After the Industrial Commission awarded benefits to the mother, the wife commenced an action for judicial review, but named only the Commission and the man‘s employer—but not the mother—in the complaint. Id. This court held that the mother was an “adverse party” required to be named under the statute, recognizing that to decide the case in favor of the wife “would necessarily require the setting aside of the award in favor of the mother. . . . The rights, if any, therefore, of the widow would necessarily be adverse to those of the mother.” Id. at 635-36.
¶ 35. Furthermore, LIRC has adopted the “in favor of” definition of “adverse party” in its regulation governing judicial review of worker‘s compensation actions.
¶ 36. The recognized definitions of “adverse party” all express a common conception of adversity, which is evident in the context of the statutory language of
¶ 37. With this understanding of “adverse party,” we turn to the Miller case.10 As demonstrated below, we conclude that the court of appeals in Miller I erroneously expanded the meaning of the term “adverse party” when it stated that, for purposes of
¶ 38. The Miller case involved an action brought by Miller Brewing and one of its insurers, National Union Fire Insurance, seeking judicial review of LIRC‘s worker‘s compensation award for one of Miller‘s employees. See Miller II, 173 Wis. 2d at 704. In the LIRC proceeding, LIRC had dismissed another insurer, Twin City Fire Insurance, based on the date of the employee‘s injury and the different time periods for which the two insurers had provided Miller coverage. Id. at 704-05.
¶ 39. In Miller, the date of injury was highly relevant because, if the employee was deemed to have been injured at an earlier date (the date on which the employee first suffered a wage loss), National Union
¶ 40. When Miller and National Union filed a complaint seeking review of LIRC‘s decision, they did not name Twin City as a defendant in the proceeding, and the circuit court concluded that the failure to name Twin City deprived the court of competency. See id. at 709-11. The court of appeals affirmed the dismissal for lack of competency, but relied upon a broader conception of “adverse party“: “any party bound by [LIRC‘s] order or award granting or denying compensation to the claimant.” Miller I, 166 Wis. 2d at 842.
¶ 41. On review, we reaffirmed our longstanding definition of “adverse party” under
¶ 42. Additionally, Miller and National Union encouraged us to adhere to another definition of “adverse party,” including any party “whose interests were adverse to the appellant during the administrative proceedings.” Id. at 715-718. However, we declined to adopt that definition, and cautioned that there are instances in which a party‘s position in the administrative proceeding is not determinative of adversity upon judicial review. See id. at 718-23.
¶ 43. Furthermore, and most notable for present purposes, in Miller II we also declined to address the definition relied on by the court of appeals in Miller I, 166 Wis. 2d at 842. Instead, we concluded that the existing definitions properly disposed of the question of which parties were adverse for purposes of
¶ 44. LIRC now embraces the definition adopted by the court of appeals in Miller I, and urges us to expand upon the established definition that we reaffirmed in Miller II to incorporate the court of appeals’ broad definition. However, we decline to expand the definition of “adverse party” to include “any party bound by [LIRC‘s] order or award granting or denying compensation,” see id., and take this opportunity to reaffirm our adherence to the longstanding definition that we relied upon in Miller II.11 Moreover, we conclude that a
¶ 45. Under our established definition, Xcel‘s insurer, ACE, was not an adverse party required to be named under
¶ 46. Accordingly, we conclude that, under
B. Xcel‘s Complaint
¶ 47. Having concluded that the circuit court had competency to decide Xcel‘s complaint, we turn to the merits of that complaint, which alleges that: (1) LIRC‘s order should be set aside because it was not supported by credible and substantial evidence in the record; and (2) LIRC exceeded its authority by awarding Smoczyk permanent and total disability benefits, because LIRC did not give proper deference to the first ALJ‘s order suggesting a radiofrequency rhizotomy. Xcel‘s first argument raises a question of whether LIRC‘s factual findings were supported by the record, while the second raises a question of law regarding the scope of LIRC‘s authority. We address these claims separately.
1. Credible and substantial evidence
¶ 48. Xcel argues that there was not credible and substantial evidence in the record to demonstrate that Smoczyk reasonably refused to undergo a radiofrequency rhizotomy. “The reasonableness of an employee‘s neglect or refusal to submit to treatment is a question of fact” for LIRC‘s determination. Klein Indus. Salvage v. DIHLR, 80 Wis. 2d 457, 461, 259 N.W.2d 124 (1977). It is
¶ 49. In concluding that Smoczyk was entitled to benefits for permanent total disability, LIRC relied on the odd-lot doctrine that provides that “some injured workers should be characterized as permanently, totally disabled even though they are still capable of earning occasional income.” Beecher v. LIRC, 2004 WI 88, ¶ 2, 273 Wis. 2d 136, 682 N.W.2d 29. Under the odd-lot doctrine, a worker‘s compensation claimant is required to make a prima facie showing “that he has been injured in an industrial accident and, because of his injury, age,
¶ 50. In its written decision in this case, LIRC set forth the elements of a prima facie case under the odd-lot doctrine and then applied its findings to that law. Relevant to its odd-lot analysis, LIRC relied on the opinions of the experts in this case, namely those of Dr. Dowdle and Sidney Bauer, Smoczyk‘s vocational expert. In doing so, LIRC explicitly determined that Bauer‘s opinion was more persuasive than Xcel‘s vocational expert, John Meltzer. LIRC noted in its decision that Bauer provided persuasive reasons why Meltzer‘s employment recommendations were not feasible in light of Smoczyk‘s physical restrictions and the reasonable likelihood that Smoczyk would be able to compete in the local labor market, based on his education and experience.
¶ 51. Bauer‘s report on Smoczyk‘s vocational opportunities is in the record, as are the reports of Meltzer and Drs. Stark, Dowdle, Hebl, and Schlimgen, upon which the vocational experts’ reports were based. Accordingly, there is credible and substantial evidence in the record to support LIRC‘s finding that Smoczyk is permanently totally disabled under the odd-lot doctrine.
¶ 52. The credibility of the doctors’ opinions is a matter entrusted to LIRC, and we will not speculate as to how LIRC reached the findings that it did. LIRC‘s decision noted that Dr. Schlimgen changed his recommendation regarding further treatment, and on that basis, LIRC declined to draw any adverse inference
¶ 53. Moreover, Xcel‘s specific factual argument, that there is not credible and substantial evidence in the record that Smoczyk “reasonably refused medical treatment,” amounts to a challenge to the doctors’ medical opinions regarding the proper course of treatment for Smoczyk, rather than a challenge to LIRC‘s findings. Drs. Hebl and Schlimgen considered the option of a rhizotomy, but ultimately concluded that the procedure no longer presented a feasible option for treating Smoczyk‘s pain at the time of LIRC‘s review. The record includes multiple references to the progression of Smoczyk‘s condition, including the doctors’ statements recognizing the diminished likelihood that certain treatments, such as a radiofrequency rhizotomy, would have any lasting effect on Smoczyk‘s pain.
¶ 54. We therefore conclude that there is credible and substantial evidence in the record on which a reasonable person could rely to reach LIRC‘s finding that Smoczyk was not required to undergo a rhizotomy before being found permanently and totally disabled.
¶ 55. Xcel‘s acting without authority argument is related to its first argument, that LIRC‘s decision is not supported by credible and substantial evidence, because when a decision by LIRC is not supported by credible and substantial evidence, the decision is in excess of LIRC‘S authority. See M. & M. Realty Co. v. Indus. Comm‘n, 267 Wis. 52, 57, 64 N.W.2d 413 (1954). Moreover, as discussed in greater detail below, Xcel‘s suggestion that LIRC was bound by the first ALJ‘s recommendation, in effect, suggests that there was not credible and substantial evidence in the record for LIRC to make a different finding than the ALJ. Although the two arguments are separate, the governing principles overlap.
¶ 56. When a party to a worker‘s compensation proceeding seeks review of an ALJ‘s finding or order, LIRC is not bound by the ALJ‘s decision, and may “affirm, reverse, set aside or modify the findings or order in whole or in part, or direct the taking of additional evidence.”
¶ 57. Xcel‘s argument that LIRC exceeded its authority when it issued an order that “conflicted with the un-appealed holding” of the first ALJ reduces to a claim that LIRC was bound by the ALJ‘s order, and that LIRC was not empowered to decide the issue of permanent total disability before Smoczyk obtained a radiofrequency rhizotomy. Not only does this argument disregard the non-binding effect of ALJs’ findings on LIRC‘s decisions, but it also ignores LIRC‘s express statutory authority over Smoczyk‘s timely appeal from the second ALJ‘s order denying permanent and total disability benefits. See
¶ 58. Therefore, we conclude that LIRC did not exceed its authority when it decided Smoczyk‘s claim for permanent total disability without requiring him to undergo further medical procedures as suggested by the first ALJ. In reaching its conclusion, LIRC addressed both ALJs’ findings and determined that the facts of record compelled a different result. This was proper under the statutes governing LIRC‘s review, as well as our cases discussing LIRC‘s discretion over ALJs’ findings and conclusions. Accordingly, we affirm LIRC‘s award for Smoczyk.
¶ 59. We conclude that the circuit court had competency to adjudicate Xcel‘s complaint, notwithstanding Xcel‘s omission of ACE, because ACE was not an “adverse party” for purposes of
¶ 60. Additionally, rather than remanding to the court of appeals to review the merits of Xcel‘s complaint, which the court of appeals did not review, we affirm LIRC‘s award in favor of Smoczyk. First, based on the evidence of record, LIRC‘s finding that Smoczyk is entitled to permanent total disability benefits on an odd-lot basis is supported by credible and substantial evidence. Second, Xcel has not demonstrated that LIRC exceeded its authority in reaching a conclusion that departed from an ALJ‘s order in Smoczyk‘s worker‘s compensation proceeding before the DWD. Therefore, we reverse the decision of the court of appeals and we remand with instructions to affirm LIRC‘s decision awarding permanent total disability benefits to Smoczyk.
By the Court.—The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.
¶ 61. SHIRLEY S. ABRAHAMSON, C.J. (concurring). Although I do not join the majority opinion, I
I
¶ 62. One concern is that the majority opinion repeatedly and incorrectly paraphrases Article VII, Section 8 of the Wisconsin Constitution without fully and accurately stating its terms. The majority opinion states as follows:
- Article VII, Section 8 “provides that circuit courts have jurisdiction to hear ‘all matters civil and criminal within this state.‘” Majority op., ¶ 27.
- “[W]e have recognized that [according to Article VII, Section 8] ‘no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever.‘” Majority op., ¶ 27.
- “[B]ecause subject matter jurisdiction is conferred on the courts by the constitution, it cannot be revoked by statute.” Majority op., ¶ 27.
- “Although a circuit court may not be deprived of jurisdiction by operation of a statute, a circuit court may lack competency [to render certain judgments] . . . .” Majority op., ¶ 28.
¶ 63. In contrast, the
¶ 65. Misstating this constitutional provision has, in my opinion, led to a confusing body of law on the meaning and use of the concepts of “subject matter jurisdiction” and “competency.” This confusion has taken on a life of its own over the years and shows no sign of abating. See Shopper Advertiser, Inc. v. DOR, 117 Wis. 2d 223, 236-40, 344 N.W.2d 115 (1984) (Abrahamson, J., concurring in part & dissenting in part).
II
¶ 66. My second concern is that the majority opinion perpetuates uncertainty in the law. Plaintiffs are going to be uncertain regarding whom to name as “adverse parties” under
¶ 67. LIRC asked the court to adopt broad language from Miller I. This would have thrown the plaintiff in the present case out of court but might have brought more certainty to the law. The majority opinion is unwilling to do so.
¶ 68. Instead, the majority opinion withdraws the following language from Miller I:1 “any party bound by [LIRC‘s] order or award granting or denying compensation is an ‘adverse party.‘” Majority op., ¶ 44. Thus,
¶ 69. A goal in interpreting the text of
¶ 70. No plaintiff should lose his, her, or its day in court by failing to name a party as a defendant or naming the wrong party as a defendant under
¶ 71. I therefore unequivocally and firmly recommend, as the Assistant Attorney General requested of the court, that the Worker‘s Compensation Advisory Council review this decision and propose to the legislature revisions to
¶ 72. The Wisconsin Worker‘s Compensation Advisory Council was created in 1975 to advise on policy matters concerning the development and administration of the workers’ compensation law.4 The Council is composed of five management, five labor, and three
¶ 73. Until the Wisconsin Worker‘s Compensation Advisory Council and the legislature act, to avoid confusion I propose that LIRC consider adopting the practice of providing information with its order or award instructing the parties about who is to be named as an “adverse party” in subsequent review. “When an agency appends a notice to its decision and the notice clearly directs a party how to appeal, the notice should remove any confusion created by the statutes about whom to name and serve.”6
¶ 74. The legislature and the court have similarly suggested elsewhere that the administrative entity lead the way. See, e.g.,
¶ 75. Action by LIRC would quell the confusion perpetuated by the majority opinion.
¶ 76. For the reasons set forth, I write separately.
¶ 77. I am authorized to state that Justice ANN WALSH BRADLEY joins Part I of this concurring opinion.
Notes
Within 30 days after the date of an order or award made by the commission either originally or after the filing of a petition for review with the department under s. 102.18 any party aggrieved thereby may by serving a complaint as provided in par. (b) and filing the summons and complaint with the clerk of the circuit court commence, in circuit court, an action against the commission for the review of the order or award, in which action the adverse party shall also be made a defendant. (Emphasis added.)