COURT OF APPEALS DECISION DATED AND FILED October 13, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Donald Miller appeals a judgment affirming a Labor and Industry Review Commission decision that denied Miller duty disability benefits under Wis. Stat. § 40.65.[1] Miller contends he has satisfied the statute’s severity requirement, and is therefore eligible for benefits, because his disability has caused a reduction in his pay and has adversely affected his promotional opportunities. The Commission’s findings to the contrary are supported by credible evidence, and we affirm.
BACKGROUND
¶2 Miller began working as a deputy sheriff for
¶3 Miller suffered periodic subluxations of the left shoulder after he returned to full duty.[2] In early 1997, a CT scan revealed a tear in Miller’s anterior glenoid labrum. Miller received treatment from Dr. Scott Warren in 1997 and 1998. During that time, both Dr. Sauer and Dr. Warren suggested surgery might eventually be necessary.
¶4 Miller was promoted to patrol sergeant in 1999. That year, Dr. Sauer estimated Miller’s permanent partial disability from the work injury totaled eight percent of his body as a whole. Dr. Sauer again noted Miller was at risk for recurrent instability, and might require future surgery.
¶5 In May 2002, Miller saw a third physician, Dr. Joseph Hebl, who largely agreed with Dr. Sauer’s assessment. Dr. Hebl added, “The patient will be allowed to continue at his current job, however, I would recommend he avoid DAAT [Defense and Arrest Tactics] training exercises, as these are likely to put the left shoulder at significant risk for subluxation.” Dr. Hebl referred Miller to Dr. James O’Connor, an orthopedist, who noted that, without surgery, Miller was likely to continue to have episodes of subluxation.
¶6 Miller missed five days of work between October 18 and 25, 2002, one with the flu and four because of shoulder pain. On October 28, 2002, Miller’s superiors met with him to discuss their concerns about sick leave abuse. Two days later, Miller again met with Dr. Hebl, who recommended Miller continue at his job, but “be allowed time away from his work should the shoulder pain flare-up to the intolerable level.” Miller was suspended for sick leave abuse for five days beginning on November 1, 2002.
¶7 Miller never returned to work. On November 7, 2002, Miller was placed on paid administrative suspension based on allegations that he had falsely claimed a work injury in December 2001, or failed to report the injury within seventy-two hours. Miller was placed on unpaid administrative leave on November 30, 2002. On September 16, 2003, an arbitrator determined the sheriff’s department had cause to terminate Miller, citing unrebutted evidence of Miller’s lack of candor or misrepresentations concerning the December 2001 injury. Miller was discharged effective November 30, 2002.
¶8 Miller had his shoulder surgically repaired on March 11, 2003, while on administrative leave. Dr. Hebl declared Miller’s shoulder healed on January 21, 2004, and rated his permanent partial disability at seven percent. Both Dr. Hebl and Dr. O’Connor imposed medical restrictions that effectively prohibited Miller from returning to police work.
¶9 Miller applied for duty disability benefits under Wis. Stat. § 40.65. The statute permits individuals in protective occupations who are injured in the line of duty to apply for lifetime disability benefits if the disability is likely to be permanent and causes: (1) the employee to retire; (2) a reduction in the employee’s pay or position, or reassignment to light duty; or (3) an adverse effect on the employee’s promotional opportunities, if promotion is specifically prohibited by state or local employer rules, ordinances, policies or written agreements. Wis. Stat. § 40.65(4). An application for duty disability benefits must be filed with the Department of Employee Trust Funds (the Department), and must include “a statement from the applicant’s employer that the injury or disease leading to the disability was duty-related.” Wis. Stat. § 40.65(2)(b)2.; see also Wis. Admin. Code § ETF 52.06(7)(a) (May 2010).
¶10
¶11 Miller appealed to the Department of Workforce Development.[3] The administrative law judge (ALJ) concluded Miller was undisputedly a “protective occupation participant” whose duty-related disability was likely to be permanent. The ALJ further determined that, because of his shoulder injury, Miller suffered a reduction in pay and his promotional opportunities were adversely affected. Accordingly, the ALJ granted Miller’s request for benefits.
¶12
¶13 The circuit court
affirmed, concluding the Commission’s interpretation of Wis. Stat. § 40.65 is entitled to great weight deference. It further concluded the Commission’s
decision was supported by credible and substantial evidence in the record.
DISCUSSION
¶14 On appeal, we
review the agency’s decision, not the circuit court’s. Wright v. LIRC, 210
¶15 An applicant for duty disability benefits under Wis. Stat. § 40.65 must show his or her injury is: (1) related to his or her duty as a protective occupation participant; (2) likely, to a reasonable degree of medical certainty, to be permanent; and (3) sufficiently severe. See Wis. Admin. Code §§ ETF 52.07(1)-(3). The Commission concedes the only element in dispute is the “severity” element, which requires the applicant to show that the disability causes the employee to retire from his or her job; the employee’s pay or position is reduced or he or she is assigned to light duty; or the employee’s promotional opportunities are adversely affected by state or local employer rules, ordinances, policies or written agreements that specifically prohibit promotion because of the disability. Wis. Stat. § 40.65.
¶16 Here, Miller contends he has satisfied the severity requirement
by showing his injury reduced his pay and limited his promotional
opportunities. Whether Miller’s pay was
reduced or his promotional opportunities adversely affected are factual matters
that Miller bears the burden of proving beyond a legitimate doubt. See Leist v. LIRC, 183
I. Eligibility Based On Pay Reduction
¶17 Under Wis. Stat. § 40.65(4)(c)2.,
an applicant for duty disability benefits may demonstrate the severity of his
or her injury by showing that his or her pay was reduced. However, not all wage loss qualifies as a pay
reduction for purposes of Wis. Stat. § 40.65. “Only a reduction in base pay meets the
criterion [set forth in § 40.65(4)(c)2.]”
Wis. Admin. Code § ETF
52.07(3)(c). Loss of collateral payments
is not a reduction of pay within the meaning of § 40.65(4)(c)2.
¶18 The Commission concluded Miller failed to show his base pay was reduced because of his injury. We agree. Miller’s injury caused him to use some of his sick leave time, and he was subsequently suspended five days for sick leave abuse. These actions did not reduce Miller’s base pay. Further, his unpaid suspension and termination were for cause and were unrelated to his shoulder dislocation. The Commission’s finding that Miller has not suffered a reduction in his base pay is supported by credible evidence.
¶19 Miller does not attempt to explain, in his brief to this court,
how he sustained a reduction in base pay.
Instead, he contends that his November 1, 2002 unpaid suspension
resulted in a “qualifying date” pursuant to Wis.
Admin. Code § ETF 52.08 (May 2010).
II. Eligibility Based On
Adversely Affected Promotional Opportunities
¶20 An applicant may also demonstrate the severity of his or her injury by showing that the “employee’s promotional opportunities within the service are adversely affected if state or local employer rules, ordinances, policies or written agreements specifically prohibit promotion because of the disability.” Wis. Stat. § 40.65(4)(c)3. Though the statute is awkwardly written, the DETF has clarified that a person qualifies for duty disability benefits if the disability is so severe that
[t]he employer prohibits the applicant from promotion for which the applicant is otherwise fully qualified, solely on the basis of the applicant’s disability and under the express terms of a valid state or local employer rule, ordinance, policy, or written agreement which is not superseded by state or federal law.
Wis. Admin. Code § ETF 52.07(3)(e).
¶21 Miller
argues that the work restrictions imposed by his physicians, which prohibited
him from undergoing Defense and Arrest Tactics training exercises, hindered his
promotional opportunities. Although DAAT
training is often included in a mandatory twenty-four-hour recertification
course for all law enforcement officers, it is not specifically required “under
the express terms of a valid state or local employer rule, ordinance, policy,
or written agreement.” The choice to
include DAAT training in the recertification course rests entirely with the
course instructor. Indeed, sheriff James
Meier testified he has been with the sheriff’s department for twenty-seven
years, and has never taken DAAT training.
The Commission found that, based on the absence of a policy requiring
DAAT training, Miller failed to establish the severity of his injury. The Commission’s finding is supported by
credible evidence in the record.
III. Reversal in the Interest of Justice
¶22 Miller claims, in the final section of his brief-in-chief, that
permitting the Commission’s decision to stand would result in a “gross
injustice.” Though Miller does not cite
it, we construe this argument as invoking our discretionary reversal authority
under Wis. Stat. § 752.35,
which permits us to reverse a judgment or order when the real controversy has
not been fully tried, or when it is probable that justice has for any reason
miscarried. We exercise our
discretionary reversal power only sparingly.
State v. Prineas, 2009 WI App 28, ¶11, 316
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes
are to the 2007-08 version unless otherwise noted.
[2] “Subluxation” refers to complete or partial dislocation.
[3] An applicant may appeal the DETF’s determination pursuant to the review procedures specified in the worker’s compensation laws. Wis. Stat. § 40.65(2)(b)4.