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COURT OF APPEALS DECISION DATED AND RELEASED June
21, 1995 |
NOTICE |
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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. 94-2717
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
PATRICIA
A. LEIDER,
Plaintiff-Respondent,
v.
LABOR
AND INDUSTRY REVIEW
COMMISSION,
Defendant-Appellant,
SHEBOYGAN COUNTY,
Defendant.
APPEAL
from an order of the circuit court for Manitowoc County: FRED H. HAZLEWOOD, Judge. Affirmed.
Before
Anderson, P.J., Brown and Snyder, JJ.
SNYDER,
J. The
Labor and Industry Review Commission (LIRC) appeals from a circuit court order
reversing its denial of § 102.61(1), Stats.,[1]
vocational rehabilitation travel expenses and maintenance costs to Patricia A.
Leider and remanding the matter to LIRC to determine if Leider had compensable
work injuries. Because LIRC's denial of
§ 102.61 benefits was premature and because its appeal seeks, in part, an
advisory opinion on the merits of Leider's pending compensation claim, we
affirm the circuit court's order.
Leider
worked for the Rocky Knoll Health Care Center, a Sheboygan County facility, as
a nurse's aide from June 22, 1987, until December 3, 1991, when she was laid
off for what Rocky Knoll described as “a non-work related medical
problem.” While assisting patients at
Rocky Knoll, she injured her shoulder on April 9, 1991, and sustained a low
back injury on August 9, 1991. She was
paid temporary total and temporary partial disability benefits intermittently
from April 24, 1991, through November 25, 1991.
Leider
applied for Division of Vocational Rehabilitation (DVR) assistance on October
17, 1991, prior to being laid off by Rocky Knoll, “hoping they could help me
find a job.”[2] DVR counselor Dean Louden certified Leider
for § 47.02, Stats.,
vocational rehabilitation training and she enrolled in an accountant
assistant's course at Moraine Park Technical Institute (MPTI).[3] She then filed the § 102.61, Stats., claim with LIRC that is the
basis of this appeal.
Under
§ 102.61, Stats., when an
employee is entitled to and receives ch. 102, Stats.,
compensation from the Department of Industry, Labor and Human Relations
(DILHR),[4]
and in addition is entitled to and receives vocational rehabilitation services
from the Department of Health and Social Services (DHSS), the employer must pay
the employee's travel expenses and maintenance costs if the services are
provided away from the employee's home.
Dane County Hosp. & Home v. LIRC, 125 Wis.2d 308, 319,
371 N.W.2d 815, 822 (Ct. App. 1985).
On
January 7, 1993, LIRC Administrative Law Judge (ALJ) Neil L. Krueger
denied Leider's § 102.61, Stats.,
claim, finding that DVR had erroneously exercised its discretion in certifying
Leider for vocational rehabilitation training.[5] LIRC affirmed Krueger's decision. Leider appealed and the circuit court held
that in applying § 102.61(1), Stats.,
to Leider's claim, “The important fact is [LIRC] has not determined whether
[Leider's] disability is compensable.”
The circuit court reversed and remanded for LIRC to make that threshold
determination.
To
resolve this issue, we must interpret § 102.61(1), Stats. The
interpretation of a statute is a question of law which we review de novo. DOR v. Milwaukee Brewers Baseball Club,
111 Wis.2d 571, 577, 331 N.W.2d 383, 386 (1983). We first consider the plain language of the statute to determine
whether its intent is clear on its face.
Voss v. City of Middleton, 162 Wis.2d 737, 749, 470 N.W.2d
625, 629 (1991).
Section
102.61(1), Stats., provides that
a claimant must be “[a]n employe who is entitled to receive and has received
compensation under [the worker's compensation] chapter” in order to claim benefits. We read the statute to clearly require Rocky
Knoll to be obligated to pay ch. 102, Stats.,
compensation before it can be required to pay vocational rehabilitation
benefits. Such has not been established
in this record. Not applying a
statutory requirement renders the requirement superfluous, a result we must
avoid. Village of Menomonee Falls
v. Michelson, 104 Wis.2d 137, 151, 311 N.W.2d 658, 665 (Ct. App. 1981).
We
requested additional briefing on whether this appellate issue was properly before
us prior to Leider's compensation claim being resolved. LIRC responded that it was not necessary for
it to determine whether Leider's disability was compensable as a prerequisite
to disposing of the § 102.61, Stats.,
claim, and that the parties entered into an agreement before Krueger that
deferred the issue of worker's compensation “until possible future
hearing(s).” LIRC also “submitted that
the Commission did find that [Leider's] work injuries did not result in
permanent disability requiring retraining.”[6] We are not persuaded that LIRC's reasoning
assuages the need to specifically address the statutory requirement.[7]
The
record supports that Leider's entitlement to ch. 102, Stats., compensation was unresolved at the time of the
§ 102.61, Stats., hearing.
First,
the parties agreed that Leider was not receiving worker's compensation on the
day of the § 102.61 hearing and that the sole issue was her vocational
rehabilitation benefits claim:
[JUDGE KRUEGER]:Okay.
The Respondent has paid temporary total and temporary partial disability
intermittently from April 24, 1991 through November 25, 1991 totaling
$1,415.32. No permanent disability has
been paid.
The sole issue at today's hearing is vocational
rehabilitation benefits; with Applicant claiming benefits commencing on August
26, 1992, and am I correct in assuming that she's still retraining at this
time?
....
... [I]s everything I have said an accurate and complete
statement of the matters conceded and issues in dispute?
MR. LAWRENCE:Yes, sir.
[Leider's
counsel]
[JUDGE KRUEGER]:Thank you. Mr. Zodrow?
MR. ZODROW:That's right; yes.
[Rocky
Knoll's
counsel]
While
the parties are free to agree to a LIRC determination of a derivative issue
prior to LIRC deciding the enabling issue of compensation coverage, they are
not entitled to seek an advisory appellate review of that determination. We are not required to address an appellate
issue structured by a party. See
State v. Waste Management of Wis., Inc., 81 Wis.2d 555, 564, 261
N.W.2d 147, 151 (1977).
Second,
it is evident from Krueger's findings, adopted by LIRC, that Leider's
entitlement to worker's compensation was unresolved:
[I]t
is extremely questionable that the work injuries of April 24, 1991 and August
9, 1991 resulted in any permanent functional disability.
....
... This is
not a finding regarding any claims for additional temporary disability,
permanent disability, loss of earning capacity or medical expenses arising out
of these two injury dates. It is ...
merely a finding regarding the responsibility of Rocky Knoll Health Care Center
to pay Vocational Rehabilitation Benefits.
Third,
Krueger entered the following order:
That
the application of Patricia Leider for benefits under sec. 102.61 of the
Worker's Compensation Act be dismissed.
The Department shall retain jurisdiction as to all other issues.
Krueger disassociated Leider's travel and maintenance
claim from LIRC's unresolved ch. 102, Stats.,
compensation determination and further suggested that she would likely not
prevail with her compensation claim.
Neither
party contends that it stipulated to Leider's entitlement to ch. 102, Stats., compensation. To the contrary, consistent with Krueger's
reservations, LIRC also questioned Leider's ultimate entitlement in its
memorandum opinion:
Furthermore,
[Leider's] treating physician for her injury in 1988, as well as her injuries
in April and August, 1991, Dr. Livermore, opined that [Leider's] disability
subsequent to August, 1991, was not caused by her most recent work
injuries. Dr. Livermore opined in a
letter dated November 18, 1991, that it was his belief that the applicant's
long-term disability was based on her physiologic musculoskeletal status,
rather than any significant injury sustained while working for the
employer. Dr. Livermore also opined
that the applicant's most recent work injury on August 9, 1991, had not
aggravated or accelerated the progression of her underlying condition beyond
its normal progression, and that no permanent disability had resulted. The administrative law judge credited Dr.
Livermore's opinion. The commission has
found nothing in the record to warrant overturning the administrative law
judge's credibility assessment.
Therefore, it was not established that the applicant's disability which
required retraining was caused by the injury she sustained while working for
the employer.
LIRC's
last sentence above acknowledges the proper statutory order of events: “[I]t was not established that the
applicant's disability which required retraining was caused by the
injury she sustained while working for the employer.” (Emphasis added.) It is
LIRC's failure to decide whether Leider has, in fact, established her
entitlement to ch. 102, Stats.,
compensation that precludes a judicial determination of her entitlement to
§ 102.61, Stats.,
benefits. LIRC has no business deciding
the merits of DVR's actions until it has completed its own threshold
determination regarding ch. 102 compensation.
We
are compelled to conclude by stating that we are extremely troubled by LIRC's
reliance in this appeal on Leider's unresolved ch. 102, Stats., compensation claim being “extremely questionable” and
that there is a “legitimate doubt” that she will receive compensation from
Rocky Knoll. That question and doubt
are solely within LIRC's authority and must be resolved by LIRC without comment
or input from this court.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
[1] All references
are to the 1991-92 edition of the Wisconsin Statutes. Section 102.61(1), Stats.,
has since been amended by 1993 Wis. Act 370, § 4.
Section 102.61(1), Stats., 1991-92, reads as follows:
An employe who is entitled to receive and has received
compensation under this chapter, and who is entitled to and is receiving
instructions under the vocational rehabilitation act, and amendments thereto,
P.L. 78-113, as administered by the state in which the employe resides or in
which the employe resided at the time of becoming physically handicapped,
shall, in addition to other indemnity, be paid the actual and necessary
expenses of travel and, if the employe receives instructions elsewhere than at
the place of residence, the actual and necessary costs of maintenance, during
rehabilitation, subject to the following conditions and limitations ....
[2] DVR determines a
claimant's rights to vocational rehabilitation independent of worker's
compensation benefits and provides for tuition and book costs from government
funds. See § 47.02(1),
(3)(f), Stats.
[3] We are unable to
determine the exact date that DVR certified Leider for the accountant
assistant's course. The record
indicates that Leider's temporary disability ended on November 25, 1991,
and that her MPTI course started in August 1992, approximately nine months
later.
[5] DILHR's limited
powers of review over DVR certification for vocational rehabilitation services
includes whether DVR has applied an interpretation of the rehabilitation laws
which is entirely outside the reasonable scope of interpretation and hence a
clear abuse of administrative power. See
Massachusetts Bonding & Ins. Co. v. Industrial Comm'n, 275
Wis. 505, 512, 82 N.W.2d 191, 195 (1957).
In Massachusetts Bonding, however, the supreme court
stated that “[i]t is clear that [the claimant] was entitled to workmen's
compensation and received it ....” Id.
at 510, 82 N.W.2d at 193. No clear
determination of Leider's entitlement to worker's compensation has been made by
LIRC in this case.
[6] LIRC argues that
Krueger's finding that “‘it is extremely questionable that the work
injuries ... resulted in any permanent functional disability’ (emphasis
supplied) is a sufficient finding that the Commission had a legitimate doubt
that [Leider] failed to prove such permanent restrictions, necessitating
training.” It was LIRC's responsibility
to resolve the question and remove the doubt.
[7] In essence, we
are deciding an appellate issue that is dependent upon an enabling entitlement
that is yet to be determined by LIRC.
We are at a loss to determine why LIRC did not hold the § 102.61, Stats., claim in abeyance until such
time as it determined Leider's disability compensation status. At a time of overburdened court agendas and
agency budget reductions, we question the merits of this procedure.