Xcel Energy Services, Inc. v. Labor & Industry Review Commission , 349 Wis. 2d 234 ( 2013 )

2013 WI 64SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP203
COMPLETE TITLE: Xcel Energy Services, Inc.,
Petitioner-Appellant-Petitioner,
v.
Labor and Industry Review Commission
and John Smoczyk,
Respondents-Respondents.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 339 Wis. 2d 413, 810 N.W.2d 865(Ct. App – 2012 Published)
PDC No: 2012 WI App 19OPINION FILED: July 11, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 11, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Chippewa
JUDGE: James M. Isaacson
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed).
BRADLEY, J., joins Part I of concurrence.
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-appellant-petitioner, there were briefs
by Timothy S. Crom, Matthew P. Bandt and Jardine, Logan &
O’Brien, P.L.L.P., Lake Elmo, MN, and oral argument by Matthew
P. Bandt.
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.
2013 WI 64NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP203
(L.C. No. 2010CV362)
STATE OF WISCONSIN : IN SUPREME COURT
Xcel Energy Services, Inc.,
Petitioner-Appellant-Petitioner, FILED
v.
JUL 11, 2013
Labor and Industry Review Commission and John
Smoczyk, Diane M. Fremgen
Clerk of Supreme Court
Respondents-Respondents.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶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
1
Xcel Energy Servs., Inc. v. LIRC, 2012 WI App 19, 339
Wis. 2d 413, 810 N.W.2d 865.
2
The Honorable James M. Isaacson presided.
No. 2011AP203
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 Wis.
Stat. § 102.23(1)(a) (2011–12).3 Second, Xcel raises two
challenges to the merits of LIRC's decision, claiming that: (1)
there was not credible and substantial evidence in the record to
support LIRC's finding that Smoczyk was entitled to permanent
total disability benefits under the odd-lot doctrine; and (2)
LIRC acted without authority or in excess of its powers4 when it
awarded Smoczyk disability benefits after an administrative law
judge (ALJ) had ordered that further medical procedures were
required to determine whether Smoczyk was permanently and
totally disabled.
¶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 Wis.
Stat. § 102.23(1)(a). In reaching this conclusion, we reaffirm
our decision in Miller Brewing Co. v. LIRC (Miller II), 173
3
All subsequent references to the Wisconsin Statutes are to
the 2011–12 edition unless otherwise indicated.
4
Xcel's argument on this point, founded on Wis. Stat.
§ 102.23(1)(e)1., amounts to a claim that LIRC did not have the
authority to decide Smoczyk's claim contrary to the order of one
of the ALJs. For ease of reference, we refer to Xcel's argument
on this point as claiming that LIRC "exceeded its authority."
2
No. 2011AP203
Wis. 2d 700, 713–18, 495 N.W.2d 660 (1993), and conclude that an
"adverse party" under § 102.23(1)(a) is a party "in whose favor"
LIRC's award or order was made, or a party "whose interest is in
conflict with the modification or reversal" of LIRC's order or
award. We also now withdraw language that creates a definition
of "adverse party" proffered by the court of appeals in Miller
Brewing Co. v. LIRC (Miller I), 166 Wis. 2d 830, 842, 480 N.W.2d
532 (Ct. App. 1992), that is not in accord with our definition.5
¶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.
5
After oral argument, LIRC submitted a letter to this
court, suggesting that we encourage the Worker's Compensation
Advisory Council to propose amendments to Wis. Stat. § 102.23
for the Legislature's consideration, clarifying which parties
are required to be included for judicial review under § 102.23.
To the extent that either the Commission or Legislature conclude
that further clarification of that language is necessary, we
rest assured that they will proceed accordingly.
3
No. 2011AP203
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. Dr. Stark diagnosed Smoczyk with a back
sprain/strain, which she concluded could reasonably be related
to his work activities.
¶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
6
Smoczyk worked four ten-hour days, and the injury occurred
on a Thursday, the end of Smoczyk's work week.
4
No. 2011AP203
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
continued to meet with Dr. Hebl, who maintained the light-duty
work restrictions.
¶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
5
No. 2011AP203
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 have helped 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 benefits, as
well as permanent partial disability benefits for five percent
of the body as a whole and temporary total disability for the
period between February and December 2007.
¶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
6
No. 2011AP203
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 undergo further treatment, Dr. Hebl noted
that Smoczyk was at the end of healing, and that he had a
permanent disability rating of 20 percent attributable to his
lower back and leg conditions, as well as three percent
attributable to his neck.
7
Although Dr. Schlimgen referred to "radiofrequency
rhizotomy" and Dr. Dowdle used the term "radiofrequency facet
denervation," the parties have used the terms interchangeably
throughout this litigation. A radiofrequency facet denervation
refers to a procedure that utilizes bursts of electrical energy
in the radiofrequency range to sever the nerve supply of the
facet joints, which are found on the faces of adjacent
vertebrae. See Stedman's Medical Dictionary 1503 (27th ed.
2000); Taber's Cyclopedic Medical Dictionary 555, 1158 (20th ed.
2005). Similarly, a radiofrequency rhizotomy refers to a
procedure utilizing electrical energy to sever a spinal nerve
root to relieve pain or reduce spasticity. See Stedman's
Medical Dictionary at 1503, 1610. Hereinafter, we use the term
radiofrequency rhizotomy to refer to that procedure.
7
No. 2011AP203
¶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 hearing testimony from Smoczyk and
8
No. 2011AP203
reviewing the record, the ALJ, Enemuoh-Trammell, concluded that
Smoczyk was entitled to temporary total disability benefits
through February 13, 2008, when Dr. Hebl concluded that Smoczyk
had reached the end of healing. The ALJ declined to award any
permanent partial disability beyond the five percent that Xcel
had conceded based on Dr. Dowdle's opinion.
¶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
9
No. 2011AP203
percent, based on Xcel's vocational expert's opinion, but that
Smoczyk was not entitled to permanent total disability benefits.
¶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
10
No. 2011AP203
was permanently and totally disabled, and that Xcel and its
insurer were required to pay benefits in accordance with that
determination.
¶22 In response, Xcel filed a summons and complaint
seeking judicial review of LIRC's decision in the Chippewa
County Circuit Court, contending that LIRC exceeded its
authority because LIRC's conclusion was not supported by
credible and substantial evidence in the record. In response,
LIRC contended first that the circuit court lacked competency to
proceed upon Xcel's complaint and that the complaint should
therefore be dismissed. LIRC reasoned that Wis. Stat.
§ 102.23(1)(a) required Xcel to name all adverse parties as
defendants in its complaint, and that Xcel had failed to name
its insurer, ACE. Additionally, LIRC contended that if the
court concluded that competency was not at issue, Xcel had
failed to prove that there was no credible and substantial
evidence to support LIRC's findings. The circuit court rejected
LIRC's competency argument, but otherwise affirmed LIRC's order
granting Smoczyk permanent total disability benefits.
¶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 Wis. Stat.
§ 102.23(1)(a), relying upon the court of appeals' broad
statement in Miller I, 166 Wis. 2d at 842, that an "'adverse
party' . . . includes any party bound by [LIRC's] order or award
11
No. 2011AP203
granting or denying compensation to the claimant." On that
basis, the court of appeals affirmed the circuit court's order
affirming LIRC, and remanded with instructions to dismiss Xcel's
complaint. Xcel, 339 Wis. 2d 413, ¶14. Xcel then filed a
timely petition for review in this court, which we granted.
II. STANDARD OF REVIEW
¶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 Wis. Stat. § 102.23(1)(a). Whether the
circuit court possessed competency to adjudicate the complaint
is a question of law that we review independently of the court
of appeals and the circuit court. See Miller II, 173 Wis. 2d at
711. Similarly, determining whether ACE was an "adverse party"
under § 102.23(1)(a), requires us to interpret the statutory
meaning of that term, which presents a question of law for our
independent review. Cnty. of Dane v. LIRC, 2009 WI 9, ¶14, 315
Wis. 2d 293, 759 N.W.2d 571.
¶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
12
No. 2011AP203
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 exceeded its authority
is a question of law, and we owe no deference to an agency's
determination of the scope of its powers. See Wis.'s Envtl.
Decade, Inc. v. Pub. Serv. Comm'n, 81 Wis. 2d 344, 351, 260
N.W.2d 712 (1978).
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 Wis. Stat. § 102.23(1)(a).
The court of appeals relied upon a definition of "adverse party"
in Miller I, 166 Wis. 2d at 841–42, that provided that an
adverse party is any party "bound by the Commission's order or
award granting . . . compensation to the claimant." See id. In
Miller II, we declined to address that definition from Miller I
and instead relied upon the established definition of "adverse
party," based on prior decisions of this court discussing the
term, as well as Black's Law Dictionary. To address the
question presented, we must interpret the term "adverse party"
under § 102.23(1)(a). But first, to provide context to the
13
No. 2011AP203
meaning of LIRC's competency challenge, we begin with a brief
discussion of competency.
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 Constitution.8 Vill. of
Trempealeau v. Mikrut, 2004 WI 79, ¶9, 273 Wis. 2d 76, 681
N.W.2d 190 (emphasis added). That section provides that circuit
courts have jurisdiction to hear "all matters civil and criminal
within this state." Wis. Const. art. VII, § 8. Given this
broad constitutional grant of subject matter jurisdiction to the
circuit courts, we have recognized that "no circuit court is
without subject matter jurisdiction to entertain actions of any
nature whatsoever." Vill. of Trempealeau, 273 Wis. 2d 76, ¶8
(quoting Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790(1982) (internal quotation marks omitted)). That is, because
subject matter jurisdiction is conferred on the courts by the
constitution, it cannot be revoked by statute. See id.
¶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
8
In some older cases, the concept of circuit court
competency was often discussed as coextensive with the court's
subject matter jurisdiction, but recent cases make clear that
the two concepts are distinct and that it is competency, not
subject matter jurisdiction, that may be lacking where statutory
prerequisites are not followed. See Vill. of Trempealeau v.
Mikrut, 2004 WI 79, ¶¶8–9, 273 Wis. 2d 76, 681 N.W.2d 190.
14
No. 2011AP203
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)).
¶29 When a party seeks judicial review of an order or
award by LIRC granting or denying worker's compensation
benefits, Wis. Stat. § 102.23(1)(a) defines the exclusive
statutory scheme by which the party may file a summons and
complaint in the circuit court. See Miller II, 173 Wis. 2d at
706. As discussed in greater detail below, we have long
recognized that compliance with § 102.23(1)(a)'s "adverse party"
requirement is central to the statutory scheme of judicial
review of LIRC's worker's compensation decisions. See id.;
accord Brandt v. LIRC, 166 Wis. 2d 623, 626, 480 N.W.2d 494(1992); Holley v. DILHR, 39 Wis. 2d 260, 264, 158 N.W.2d 910(1968). Accordingly, failure to name an adverse party as a
defendant under § 102.23(1)(a) deprives the circuit court of
competency and requires dismissal of the complaint. Miller II,
173 Wis. 2d at 706. We turn now to the interpretation of
"adverse party" under § 102.23(1)(a) to determine whether ACE
was an adverse party required to have been named as a defendant
in Xcel's complaint.
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No. 2011AP203
2. Wis. Stat. § 102.23(1)(a)'s "adverse party"
¶30 Our interpretation of "adverse party" under Wis. Stat.
§ 102.23(1)(a) begins with the language of the statute.9 Wis.
Indus. Energy Group, Inc. v. Pub. Serv. Comm'n, 2012 WI 89, ¶15,
342 Wis. 2d 576, 819 N.W.2d 240. "If the meaning of the statute
is plain, we ordinarily stop the inquiry." State ex rel. Kalal
v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110. When examining plain meaning, we give the
statutory language "its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are
given their technical or special definitional meaning." Id.
"In determining the ordinary meaning of undefined words, '[w]e
may consult a dictionary to aid in statutory construction.'"
Cnty. of Dane, 315 Wis. 2d 293, ¶23 (quoting Spiegelberg v.
State, 2006 WI 75, ¶19, 291 Wis. 2d 601, 717 N.W.2d 641). Also,
when we engage in statutory interpretation, "we are assisted by
prior decisions that have examined the relevant statutes."
State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d 848.
9
Wisconsin Stat. § 102.23(1)(a) provides, in relevant part:
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.)
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No. 2011AP203
¶31 "Adverse party" is not defined under Wis. Stat.
§ 102.23(1)(a), although the language of that section governing
judicial review of worker's compensation claims has existed
relatively unchanged since 1911. Compare § 102.23(1)(a) with
Wis. Stat. § 2394–19 (1911). See also Hammond-Chandler Lumber
Co. v. Indus. Comm'n of Wis., 163 Wis. 596, 602, 158 N.W. 292(1916). Similar to the language currently used in
§ 102.23(1)(a), the earliest phrasing of the relevant provision
stated that a party aggrieved by an order or award of the
Industrial Commission (LIRC's predecessor) could commence an
action in circuit court "against the [commission] for the review
of such award, in which action the adverse party shall also be
made defendant." § 2394–19 (1911) (emphasis added).
¶32 A dictionary definition from around the time the
statutory language was adopted provides a common and accepted
understanding of the term "adverse." The Webster's New
International Dictionary defines "adverse" as "(1) [a]cting
against, or in a contrary direction; opposed; antagonistic;
. . . (2) [i]n hostile opposition to one's interest; . . . (5)
Law. Having opposing interests; having interests for the
preservation of which opposition is essential." Webster's New
International Dictionary 38 (2d ed. 1934). Notably, our early
interpretations of the term "adverse party," as used in Wis.
Stat. § 2394–19 (1915), comport with the dictionary definition
of the term "adverse." For example, in Hammond-Chandler, 163
Wis. at 602, we held that the term "adverse party," in the
context of the statute allowing an "aggrieved" party to bring an
17
No. 2011AP203
action for judicial review of a worker's compensation order, was
intended to refer to "the persons interested in supporting the
award," or, similarly, "the one in whose favor the award was
made."
¶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.
¶34 Accordingly, the requirement of naming an adverse
party as a defendant under Wis. Stat. § 102.23(1)(a) has long
been interpreted to mean that the party seeking judicial review
of LIRC's decision must, in addition to naming LIRC, name the
party "in whose favor" LIRC decided the case. This
interpretation adheres to the common, ordinary, accepted meaning
of the term, and also comports with Black's Law Dictionary's
definition of "adverse party," as we recognized in Brandt, 166
18
No. 2011AP203
Wis. 2d at 630–31. Under that definition, an adverse party
includes "every party whose interest in relation to the judgment
or decree appealed from is in conflict with the modification or
reversal sought by the appeal." Id. (internal quotation marks
omitted).
¶35 Furthermore, LIRC has adopted the "in favor of"
definition of "adverse party" in its regulation governing
judicial review of worker's compensation actions. Wis. Admin.
Code § LIRC 3.05. Similar to the provisions of Wis. Stat.
§ 102.23(1)(a), the regulation provides that "[t]he action [for
judicial review] shall be commenced against [LIRC], and the
party in whose favor the order or award was made shall also be
made a defendant." Id.
¶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 Wis. Stat.
§ 102.23(1)(a). Under that section, the party empowered to
bring a complaint is the party "aggrieved" by LIRC's decision,
and that party becomes the plaintiff in the circuit court
action. See § 102.23(1)(a); see also Hammond-Chandler, 163 Wis.
at 599 ("Only a party aggrieved by a judgment can appeal
therefrom. Where the party appealing is not in any way
aggrieved, the appeal should be dismissed." (Citations
omitted.)). The "aggrieved party," or plaintiff, is then
required to name the "adverse party" as a "defendant" in the
complaint. See § 102.23(1)(a). Based on accepted dictionary
definitions of the term "adverse," i.e., "having opposing
19
No. 2011AP203
interests," for the term "adverse party" to make sense in the
context of an "aggrieved party" and "defendant," the "adverse
party" that must be named as a defendant must be a party that
was not aggrieved by LIRC's order or award on the issue raised
by the complainant.
¶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
Wis. Stat. § 102.23(1)(a), the term "includes any party bound by
[LIRC's] order or award granting or denying compensation to the
claimant." Miller I, 166 Wis. 2d at 842.
¶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
10
We use the designation "Miller" to discuss the background
facts of the case, whereas we rely on the "Miller I" and "Miller
II" designations when discussing the respective holdings in the
court of appeals and this court.
20
No. 2011AP203
wage loss), National Union would have been liable; conversely,
if the employee was deemed to have been injured at a later date
(the date employment was terminated), then Twin City would have
been liable. See id. at 708–09. The Department of Industry,
Labor, and Human Relations (DILHR) had first concluded that the
date of injury was the later date, but when LIRC decided the
case, it concluded that the date of injury was the earlier date.
See id. Based on that conclusion, LIRC dismissed Twin City
because the injury had occurred outside of Twin City's coverage
period. See id.
¶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 Wis. Stat. § 102.23(1)(a), and
recognized two different phrasings of that definition, both of
which supported the conclusion that Twin City was an adverse
party whose absence deprived the circuit court of competency.
See Miller II, 173 Wis. 2d at 715–18. We first reaffirmed the
longstanding definition of "adverse party" that we had developed
in Hammond-Chandler, 163 Wis. at 602, and which LIRC had
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No. 2011AP203
incorporated into Wis. Admin. Code § LIRC 3.05, that an adverse
party is a party "in whose favor the order or award was made."
See Miller II, 173 Wis. 2d at 713–17. We also reaffirmed the
Black's Law Dictionary definition that we had adopted in Brandt,
166 Wis. 2d at 630–31, that "adverse party" includes "every
party whose interest in relation to the judgment or decree
appealed from is in conflict with the modification or reversal
sought by [the action for judicial review]." See Miller II, 173
Wis. 2d at 714–17 (internal quotation marks omitted).
¶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 Wis. Stat. § 102.23(1)(a). See Miller II, 173
Wis. 2d at 716 n.8.
¶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
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No. 2011AP203
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 definition
proffered by the court of appeals in Miller I is erroneous, and
we hereby withdraw the language from Miller I stating that "any
party bound by [LIRC's] order or award granting or denying
compensation" is an "adverse party" under Wis. Stat.
§ 102.23(1)(a). See Miller I, 166 Wis. 2d at 842. In so doing,
we reaffirm our adherence to the established definition of
"adverse party," as stated in Miller II, 173 Wis. 2d at 716–19.
¶45 Under our established definition, Xcel's insurer, ACE,
was not an adverse party required to be named under Wis. Stat.
§ 102.23(1)(a). First, there is no suggestion that LIRC's award
was "in favor" of ACE, as we have interpreted that term. See
id. at 713–14; see also Wis. Admin. Code § LIRC 3.05. Second,
Xcel's action in circuit court did not seek to reverse or modify
LIRC's decision in any way that would have conflicted with ACE's
11
We take this opportunity to clarify the equivalence of
the two phrasings of the "adverse party" definition discussed in
Miller II; that is, (1) a party "in whose favor an award has
been made" and (2) a party "whose interest is in conflict with
the modification" of LIRC's order sought by the complainant.
Miller II, 173 Wis. 2d at 716. As discussed above, both
phrasings pit the party "aggrieved" by LIRC's order against a
party who was not "aggrieved" by the order (or at least that
portion challenged by the aggrieved party).
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No. 2011AP203
interests. Rather, the modification Xcel sought was intended to
reduce its exposure to liability for Smoczyk's permanent total
disability benefits, and although the terms of the insurance
contract between Xcel and ACE are not before this court, logic
suggests that the downward modifications Xcel sought would
correspond to the interests of ACE. Moreover, in contrast with
the Miller case, there is no suggestion that there is any
coverage dispute with another insurer that would have provided
coverage during a different coverage period, and even if there
were, LIRC's award was not in favor of such other insurer such
that the insurer would have an interest in upholding LIRC's
decision.
¶46 Accordingly, we conclude that, under Wis. Stat.
§ 102.23(1)(a), ACE was not adverse to Xcel; and therefore,
ACE's absence from Xcel's complaint did not deprive the circuit
court of competency to proceed to the merits. Accordingly, we
reverse the court of appeals' decision.
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
24
No. 2011AP203
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 well established that on review, we will
uphold LIRC's findings of fact, provided there is credible and
substantial evidence in the record on which reasonable persons
could rely in reaching the same findings. See deBoer Transp.,
335 Wis. 2d 599, ¶30. Credible and substantial evidence is that
which is "sufficient to exclude speculation or conjecture."
Bumpas v. DILHR, 95 Wis. 2d 334, 343, 290 N.W.2d 504 (1980).
Moreover, Wis. Stat. § 102.23(6) provides that where LIRC's
order or award depends on a finding by LIRC, "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."
See also Milwaukee Symphony Orchestra, Inc. v. DOR, 2010 WI 33,
¶31, 324 Wis. 2d 68, 781 N.W.2d 674 ("[T]he weight and
credibility of the evidence are for the agency, not the
reviewing court, to determine." (quoting Hilton v. DNR, 2006 WI
84, ¶25, 293 Wis. 2d 1, 717 N.W.2d 166 (internal quotation marks
omitted)). The burden of showing that LIRC's decision was not
25
No. 2011AP203
supported by credible and substantial evidence is on the party
seeking to set aside LIRC's findings and order. See Bretl v.
LIRC, 204 Wis. 2d 93, 99, 553 N.W.2d 550 (Ct. App. 1996).
¶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, education,
and capacity, he is unable to secure any continuing and gainful
employment." Id., ¶3 (quoting Balczewski, 76 Wis. 2d at 495).
When the claimant makes a prima facie showing, the burden shifts
to the employer to show that the claimant is employable and that
jobs do exist for the injured claimant. Id.
¶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
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No. 2011AP203
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 about Smoczyk's decision not to seek a radiofrequency
rhizotomy. It is not LIRC's role to evaluate every individual
premise upon which an expert's opinion is based, nor is it the
role of the courts to verify that LIRC's decision gave the
proper weight to experts' intermediate conclusions. Rather,
LIRC's role is to make findings supported by credible and
substantial evidence in the record. Similarly, our role is to
examine the record to ensure that evidence of record supports
the findings LIRC actually reached, not to reevaluate the weight
and credibility of every piece of evidence upon which LIRC
relied. We therefore decline to independently evaluate whether
Smoczyk should have undergone further medical procedures.
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No. 2011AP203
¶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.
2. LIRC's authority
¶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
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No. 2011AP203
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." Wis. Stat. § 102.18(3).
Moreover, when we review an award or denial of worker's
compensation benefits, we review the decision of LIRC, rather
than the decisions of the ALJs, the circuit court, or the court
of appeals. See Cnty. of Dane, 315 Wis. 2d 293, ¶14;
Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 281, 195 N.W.2d
656 (1972) ("The findings before us for review are those of the
department, not those earlier made by the examiner.").
Furthermore, we have recognized that "[u]nreviewed
administrative law judge decisions regarding Chapter 102 are not
binding on the Commission," Theuer v. LIRC, 2001 WI 26, ¶13, 242
Wis. 2d 29, 624 N.W.2d 110. Similarly, an ALJ's failure to make
a finding on a particular issue also does not bind LIRC, and the
lack of a finding will not preclude a decision by LIRC on that
matter. See Worsch v. DILHR, 46 Wis. 2d 504, 509, 175 N.W.2d
201 (1970).
¶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
29
No. 2011AP203
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 Wis.
Stat. § 102.18(3); see also Davis v. Indus. Comm'n, 22 Wis. 2d
674, 678–79, 126 N.W.2d 611 (1964) ("We are required to assume,
unless there is affirmative proof to the contrary, that the
commission acted regularly as to all matters and pursuant to the
rules of law and proper procedures in its determination.")
(internal quotation marks and citation omitted).
¶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.
IV. CONCLUSION
¶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 Wis.
Stat. § 102.23(1)(a). In reaching this conclusion, we reaffirm
30
No. 2011AP203
our decision in Miller II, 173 Wis. 2d at 713–18, and conclude
that an "adverse party" under § 102.23(1)(a) is a party "in
whose favor" LIRC's award or order was made, or a party "whose
interest is in conflict with the modification or reversal" of
LIRC's order or award. We also now withdraw language that
creates a definition of "adverse party" proffered by the court
of appeals in Miller I, 166 Wis. 2d at 842, which is not in
accord with our definition.
¶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.
31
No. 2011AP203.ssa
¶61 SHIRLEY S. ABRAHAMSON, C.J. (concurring). Although
I do not join the majority opinion, I agree that the circuit
court can adjudicate Xcel's complaint even though ACE was not a
named party. I also agree that LIRC's decision and order should
be affirmed on the merits. I write separately to express two
concerns.
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 Wisconsin Constitution, Article VII,
Section 8, provides as follows: "Except as otherwise provided
1
No. 2011AP203.ssa
by law, the circuit court shall have original jurisdiction in
all matters civil and criminal within this state and such
appellate jurisdiction in the circuit as the legislature may
prescribe by law" (emphasis added).
¶64 For a full discussion of the import of this
constitutional provision, which gets lost in the majority
opinion's paraphrasing and in various discussions of subject
matter jurisdiction and competency, see Eberhardy v. Circuit
Court for Wood Cnty., 102 Wis. 2d 539, 547-553, 307 N.W.2d 881(1981).
¶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 Wis.
Stat. § 102.23. A simple error may cause plaintiffs to be
thrown out of court.
¶67 LIRC asked the court to adopt broad language from
Miller I. This would have thrown the plaintiff in the present
2
No. 2011AP203.ssa
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, the majority opinion accomplishes what
the Miller II2 court was unwilling to do.
¶69 A goal in interpreting the text of Wis. Stat. § 102.23
is to create certainty for the parties. Under the statute, a
complaint against LIRC for review of its order or award——in
which the adverse party is also to be made a defendant——is filed
in circuit court and served upon a commissioner or agent
authorized by the commission to accept service. Such service
constitutes complete service on all parties. Wis. Stat.
§ 102.23(1)(b). The commission then mails one copy to each
other defendant.
¶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 Wis. Stat. § 102.23. Plaintiffs
should not be defeated in their redress of grievances by a
confusing maze of statutes and judicial opinions instructing
them whom to name as a defendant for review of a LIRC order or
award.
1
Miller Brewing Co. v. LIRC (Miller I), 166 Wis. 2d 830,
842, 480 N.W.2d 532 (Ct. App. 1992).
2
Miller Brewing Co. v. LIRC (Miller II), 173 Wis. 2d 700,
704, 495 N.W.2d 660 (1993).
3
No. 2011AP203.ssa
¶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 Wis. Stat. § 102.23 to
clarify who must be included as a party in judicial review
governed by Wis. Stat. § 102.03.3
¶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 non-voting insurance members appointed by the secretary of
the Department of Workforce Development and is chaired by a
department employee. "The Council provides a vehicle for labor
and management representatives to play a direct role in
recommending changes in the workers' compensation law to the
legislature."5
¶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
3
Letter dated Jan. 16, 2013, on file with the court. See
majority op., ¶2 n.5.
4
Wis. Stat. § 102.14(2).
5
17 Thomas M. Domer & Charles F. Domer, Wisconsin Practice
Series, Workers' Compensation Law § 2.8 (2012-2013 ed.).
4
No. 2011AP203.ssa
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., Wis. Stat. § 227.48(2) (providing that "[e]ach decision
shall include notice of any right of the parties to petition for
rehearing and administrative or judicial review of adverse
decisions, the time allowed for filing each petition and
identification of the party to be named as respondent.");
Sunnyview Village, Inc. v. Wis. Dep't of Admin., 104
Wis. 2d 396, 412, 311 N.W.2d 632 (1981) (court recommends that
governmental entities adopt practice of providing information on
which government entity to be named and served as a respondent)
(cited in All Star Rent A Car, Inc. v. DOT, 2006 WI 85, ¶46, 292
Wis. 2d 615, 716 N.W.2d 506 (court has "repeatedly exhorted
administrative agencies to include with their decisions clear
notices explaining the procedures that must be followed to
obtain judicial review.")); Wis. Envtl. Decade, Inc. v. Pub.
Serv. Comm'n, 84 Wis. 2d 504, 534, 267 N.W.2d 609 (1978) (court
directs PSC to identify principal parties who must be served).
¶75 Action by LIRC would quell the confusion perpetuated
by the majority opinion.
¶76 For the reasons set forth, I write separately.
6
All Star Rent A Car, Inc. v. DOT, 2006 WI 85, ¶47, 292
Wis. 2d 615, 716 N.W.2d 506.
5
No. 2011AP203.ssa
¶77 I am authorized to state that Justice ANN WALSH
BRADLEY joins Part I of this concurring opinion.
6
No. 2011AP203.ssa
1