No.
96-1070
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
CITY OF MENASHA
PUBLIC WORKS and
WAUSAU UNDERWRITERS
INSURANCE COMPANY,
Plaintiffs-Appellants,
v. ERRATA SHEET
KRISTIN J. ERICKSON
and
LABOR AND INDUSTRY
REVIEW COMMISSION,
Defendants-Respondents.
Marilyn
L. Graves Clerk
of Court of Appeals P.O.
Box 1688 Madison,
WI 53702 |
Peg
Carlson Chief
Staff Attorney 119
Martin Luther King Blvd. Madison,
WI 53703 |
Court
of Appeals District I 633
W. Wisconsin Ave. Milwaukee,
WI 53203 |
Court
of Appeals District II 2727
N. Grandview Blvd. Waukesha,
WI 53188-1672 |
Trial
Court Clerk Outagamie
County Courthouse 303
S. Walnut St. Appleton,
WI 54911 |
Court
of Appeals District IV 119
Martin Luther King Blvd. Madison,
WI 53703 |
Jennifer
Krapf Administrative
Assistant 119
Martin Luther King Blvd. Madison,
WI 53703 |
Hon.
Harold V. Froehlich Circuit
Judge Outagamie
County Courthouse Appleton,
WI 54911 |
James
R. Macy Godfrey
& Kahn P.O.
Box 2728 Appleton,
WI 54911 |
Jennifer
L. Edmondson Stilp,
Cotton & Wells P.O.
Box 25 Appleton,
WI 54912-0025 |
Mark
V. Sewall Stephen M. Sobota
Sigman,
Janssen Ass't Attorney General
303
S. Memorial Drive P.O.
Box 7857
Appleton,
WI 54911-5978 Madison, WI
53707-7857
PLEASE TAKE NOTICE that
the attached opinion is to be substituted for the above-caption opinion which
was released on November 5, 1996.
Dated this 14th day of March, 2005.
COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 5, 1996 |
NOTICE |
A
party may file with the Supreme Court a petition to review an adverse
decision by the Court of Appeals. See
§ 808.10 and Rule 809.62, Stats. |
This
opinion is subject to further editing.
If published, the official version will appear in the bound volume of
the Official Reports. |
No. 96-1070
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
CITY
OF MENASHA
PUBLIC
WORKS and
WAUSAU
UNDERWRITERS
INSURANCE
COMPANY,
Plaintiffs-Appellants,
v.
KRISTIN
J. ERICKSON and
LABOR
AND INDUSTRY
REVIEW
COMMISSION,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Outagamie County:
HAROLD V. FROEHLICH, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. The City of Menasha Public Works and its insurer
appeal a judgment affirming a Labor and Industry Review Commission
decision. LIRC modified and affirmed an
administrative law judges's decision awarding Kristin Erickson temporary
disability benefits. Menasha argues
that LIRC violated the doctrine of collateral estoppel by ignoring its own
findings in prior related proceedings, Erickson should have been judicially
estopped from presenting inconsistent or conflicting testimony, LIRC should not
have considered or relied on Erickson's medical reports and the ALJ was biased
against Menasha. We reject these
arguments and affirm the judgment.
Erickson sustained an
ankle injury in the work place. The ALJ
found her 25% permanently disabled based on testimony that she had reached a
healing plateau. LIRC affirmed that
finding. Erickson submitted a second
application for a hearing claiming that her condition had improved and Menasha
had unreasonably refused to rehire her.
The ALJ rejected that claim and LIRC sustained that decision. At the request of Menasha's insurer, LIRC
reopened the first case based on the newly discovered evidence that Erickson's
ankle had healed. LIRC remanded the
matter for a new hearing "on the issues of causation of disability, nature
and extent of disability, and liability for medical treatment and
expenses." The ALJ ruled that
Erickson was not permanently disabled, but was partially disabled for a longer
time. The ALJ ordered additional
payment for the partial disability, less the amount previously paid for the
permanent disability. LIRC slightly
modified the ALJ's decision, reducing the award for temporary disability, and
affirmed the decision as modified.
Menasha and its insurer challenge this decision by LIRC.
The doctrine of
collateral estoppel does not prevent LIRC from reaching the decision to extend
Erickson's temporary disability benefits.
Upon receiving newly discovered evidence that Erickson was not
permanently disabled, LIRC exercised its authority under § 102.18(4)(c), Stats., to reopen the disability
award. That statute allows the
commission to set aside its previous award and remand the case to the
department for further proceedings.
LIRC remanded the matter specifically to consider the nature and extent
of the disability. Nothing in the
statutes or in LIRC's order limits the authority of the ALJ to grant recovery
consistent with the findings that arise from the new hearing. To apply collateral estoppel to these
proceedings, forcing LIRC to abide by its earlier rulings, would defeat the
purpose of allowing the case to be reopened for newly discovered evidence. When faced with newly discovered evidence
casting doubt on its earlier decision, LIRC may vacate that decision and is not
precluded by collateral estoppel from changing its findings.
Erickson was not
judicially estopped from submitting a medical report establishing that her
ankle had healed. Menasha views this
case as one where Erickson presents inconsistent evidence at the various
hearings as it suits her interests. This
cynical view is not necessitated by the evidence and is inconsistent with LIRC's
findings. Rather, the evidence is
consistent with a good-faith error in the prognosis for Erickson's ankle that
was corrected by Erickson and her doctors upon discovery.
The evidence submitted
at the final hearing was sufficient to support LIRC's findings. The weight and credibility of testimony are
decided by LIRC. E.F. Brewer Co.
v. DILHR, 82 Wis.2d 634, 636-37, 264 N.W.2d 222, 224 (1978). LIRC had the right to believe the evidence
presented at the most recent hearing that showed Erickson's ankle healed better
than the doctors expected and that she suffered only a temporary
disability. LIRC could reasonably view
the medical reports as an update or correction rather than a true
inconsistency.
Finally, the record does
not establish any bias by the ALJ.
Menasha has not overcome the presumption of honesty and integrity of
those who serve as adjudicators in state administrative proceedings. See Guthrie v. WERC,
111 Wis.2d 447, 455, 331 N.W.2d 331, 335 (1983). After one of the earlier proceedings, counsel for Menasha's
worker's compensation insurer accused the ALJ of being "lazy." The ALJ responded by letter. This incident does not establish any bias by
the ALJ. In addition, LIRC, not the
ALJ, makes the ultimate findings of fact and conclusions upon which the award
is based. Menasha does not argue that
LIRC was biased.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.