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COURT OF
APPEALS DECISION DATED AND
RELEASED AUGUST
28, 1996 |
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
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This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3116
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
CEMENTATION
COMPANY
OF
AMERICA and
LUMBERMENS
MUTUAL
CASUALTY
COMPANY,
Plaintiffs-Appellants,
v.
LABOR
AND INDUSTRY
REVIEW
COMMISSION
and
WILLIE T. SEBREE,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Waukesha County: PATRICK L. SNYDER, Judge. Affirmed.
Before
Anderson, P.J., Brown and Snyder, JJ.
ANDERSON,
P.J. Cementation Company of America and its
insurer, Lumbermens Mutual Casualty Company (collectively Cementation), appeal
from the trial court’s order affirming the Labor and Industry Review
Commission's (LIRC) interlocutory order awarding Willie T. Sebree compensation
for permanent total disability and medical expenses resulting from his
compensable back injury on February 2, 1986.
Cementation maintains that LIRC did not have jurisdiction to decide
Sebree’s claims for permanent total disability and related medical
expenses. Cementation further argues
that the doctrines of claim preclusion and issue preclusion prohibit litigation
of the disability issue which was allegedly adjudicated at the August 18, 1988,
hearing. We conclude that under §
102.18(1), Stats., LIRC had
authority to issue the 1988 interlocutory order preserving the issue of
additional disability and jurisdiction to issue the 1994 interlocutory order
awarding permanent total disability benefits and medical expenses to
Sebree. We also conclude that the
doctrines of claim and issue preclusion are not applicable.
The
facts are undisputed. Sebree was
employed as a construction worker/miner at Cementation. On February 3, 1986, Sebree sustained an
injury to his back while working in an underground tunnel. He was hospitalized for eighteen days, at
which time he was treated by Joseph Armah, D.O. The CT scan taken during his hospitalization showed no evidence
of definite spinal disc herniation.
Following
his release from the hospital, Sebree was referred to Lee M. Tyne, M.D., for
his persistent back pain. An X-ray
taken in September 1986 showed evidence of degenerative disc disease. The CT scan and myelogram taken in October
1986 showed a herniated intervertebral disc with spinal instability. Rather than undergoing surgery, as
recommended by Tyne, Sebree returned to Armah for physical therapy, diathermy,
manipulation and ultrasound treatments.
Cementation
obtained a report dated March 27, 1986, from its independent medical examiner,
Gerald Zupnik, M.D. Zupnik described
the injury as trivial and concluded that it did not result in permanent
disability. Rather, Zupnik determined
that Sebree should not lift more than fifty or sixty pounds based upon Sebree’s
preexisting condition—a 1974 injury which resulted in disc fusion and a 1984
back strain.
Nevertheless,
Cementation admitted liability and paid temporary total disability benefits
from February 4, 1986, to April 9, 1986, totaling $3070.67 and medical expenses
of $1524.38. On June 10, 1986, Sebree
filed an application for a hearing seeking continued temporary total disability
benefits.
On
August 17, 1988, a formal hearing was held before an administrative law judge
(ALJ). Sebree asserted that as a result
of the 1986 back injury, he was permanently and totally disabled. LIRC entered an interlocutory order awarding
Sebree certain medical expenses.
However, because Sebree could “be in need of additional medical
treatment and [could] be entitled to additional disability,” jurisdiction was
reserved for “such further findings and orders as may be warranted.”[1]
Cementation
appealed to the circuit court contending that the ALJ and LIRC committed an
misuse of discretion by making the order interlocutory instead of final as to
additional disability and medical expenses.
The court concluded that the 1986 myelogram report and Sebree’s
continued treatment provided a reasonable basis for reserving jurisdiction. The court of appeals, in an unpublished
summary disposition, affirmed and adopted the trial court’s decision as “a
proper analysis of the law and a correct application of the law to the facts of
the case.”
A
new application for a hearing was filed on September 30, 1992, and was heard on
December 22, 1993.[2] Additional medical reports and records were
introduced by both parties. LIRC
determined that Tyne’s opinion was most credible and adopted his finding that
“[Sebree] sustained an additional 2 percent compared to disability to the body
as a whole, caused by the February 3, 1986 work injury.”[3] LIRC further concluded that Sebree
“sustained permanent total disability as a result of the compensable back
injury of February 3, 1986, and the disability began on March 4, 1993, when Dr.
Tyne first set out the applicant’s permanent restrictions.” Accordingly, Sebree was awarded permanent
total disability benefits and medical expenses incurred as a result of the work
injury. LIRC reserved jurisdiction with
respect to future medical expenses.
Cementation
sought judicial review of the 1994 interlocutory order. Cementation argued that LIRC only had
jurisdiction to hear the issue of additional medical benefits and was prohibited
by the doctrines of res judicata and estoppel from litigating the disability
issue which was previously decided at the 1988 hearing. The trial court concluded that: (1) claim preclusion was inapplicable
because the interlocutory order was a temporary order and not a final decision
of the whole controversy, (2) the interlocutory order preserved jurisdiction
until Sebree’s injuries were resolved and the application of issue preclusion
under these circumstances would be fundamentally unfair and (3) there was
substantial evidence presented at the hearing to support LIRC’s determination
that Sebree was permanently and totally disabled. Cementation appeals.
We
first address the appropriate standard of review. Cementation does not contest the sufficiency of the evidence;
rather, it challenges the jurisdiction of the ALJ to hold the December 22,
1993, hearing. Whether jurisdiction was
retained is a question of law. It is
not an issue requiring specialized knowledge or technical competence which only
the agency can provide. Nor does it
involve an agency interpretation which is the result of a course of uniform
interpretation over a period of time. See
Local No. 695 v. LIRC, 154 Wis.2d 75, 84, 452 N.W.2d 368, 372
(1990). We owe no deference to LIRC’s
determination when this court is as competent as the agency to determine a
question of law. Schachtner v. DILHR, 144 Wis.2d 1, 4, 422 N.W.2d
906, 908 (Ct. App. 1988).
On
appeal, Cementation argues that: (1)
despite the interlocutory order, LIRC did not have jurisdiction to hear and
decide Sebree’s claims which were litigated at the 1988 hearing; (2) Sebree has
but one cause of action for benefits and may not litigate claims which have
already been adjudicated under Lisney v. LIRC, 171 Wis.2d 499,
493 N.W.2d 14 (1992) and (3) the doctrines of claim preclusion and issue
preclusion prohibit this second litigation.
We will address each issue separately.
The
central issue is whether LIRC had jurisdiction to hear and decide Sebree’s 1992
application for permanent total disability.
Cementation concedes that the Department of Industry and Human Relations
(DILHR) has the power and authority to issue interlocutory orders under §
102.18(1), Stats., and that these
orders are not subject to claim preclusion.
Cementation contends however that the issue of permanent total
disability was adjudicated at the 1988 hearing. Cementation maintains that claim preclusion applies to those
issues which have been adjudicated (permanent total disability), but not to
portions of the order which were interlocutory (medical expenses).
At
the August 1988 hearing, the ALJ made the following comments:
[T]he
record speaks for itself, Mr. Silver.
There is no evidence in the record that Mr. Sebree has any permanent
disability from the ’86 injury. I
accept his representations about what he can do and what he can’t do. But there is no medical evidence to support
his claim. I don’t – I don’t doubt it
may exist somewhere, but it’s not here.
There
is nothing to say there is aggravation on a temporary or permanent basis. ¼ It’s my medical opinion that Mr. Sebree has an
occupational back. But my medical
opinion isn’t worth anything. We don’t
have any evidence in the record to support your claim. The only alternative I’m going to have is to
dismiss the application. I can’t make a
finding based on this record.
[T]he
motion for additional time ¼ to obtain additional evidence is denied. You’ll receive
a written order.
Although the inference is that the ALJ dismissed the
application, this is not clearly stated.
Rather, the ALJ indicated that he believed Sebree’s testimony and that
he believed Sebree had “an occupational back.”
Only the motion for additional time was plainly denied. The oral pronouncement by the ALJ is
ambiguous as to Sebree’s application for permanent disability.
In
contrast, the 1988 interlocutory order provided:
[N]o
evidence was submitted by [Sebree] ¼ suggesting permanent partial disability or the
imposition of restrictions.
Consequently no loss of earning capacity can be assessed without medical
evidence of permanency or restrictions.
¼ Because [Sebree] may be in need of additional medical
treatment and may be entitled to additional disability, jurisdiction is
reserved for such further findings and awards as may be warranted.
Clearly the order reserved jurisdiction for a hearing
and a determination regarding additional disability in the future.
The
comments made by the ALJ at the hearing are ambiguous and they conflict with
the written interlocutory order. When
there is a conflict between an ambiguous oral pronouncement and the written
judgment, the intent of the judge controls the determination. See State
v. Lipke, 186 Wis.2d 358, 364, 521 N.W.2d 444, 446 (Ct. App.
1994). “[W]here the oral pronouncement
is ambiguous, it is proper to look at the written judgment to ascertain the
court’s intention.” See id.
(quoted source omitted). Here, the
written order is unambiguous. The order
clearly expresses the ALJ’s intent that jurisdiction be reserved for such
further findings as may be warranted, i.e., additional medical treatment
and additional disability. We so hold.
Moreover,
this issue was previously addressed by this court. Although Cementation does not cloak its argument on this appeal
as an abuse of discretion, it makes the same argument under the guise of
jurisdiction. In Cementation’s first
appeal, it argued that LIRC misused its discretion because the order should
have been final as to disability, i.e., the issue was adjudicated at the
hearing. On this appeal, Cementation
argues that LIRC did not have jurisdiction because the claim for disability was
previously litigated at the 1988 hearing.
Clearly it is the substance of a party’s argument which is controlling,
not the labels affixed to it. We have
already determined that LIRC properly reserved jurisdiction for further
findings and awards, including additional disability. It is a long-standing
rule that a decision on a legal issue by an appellate court establishes the law
of the case, which must be followed in all subsequent proceedings in the trial
court or on later appeal. Univest Corp. v. General Split Corp.,
148 Wis.2d 29, 38, 435 N.W.2d 234, 238 (1989).
Accordingly, we affirm the trial court’s conclusion that LIRC had
jurisdiction to hear and decide Sebree’s claims for additional disability and
medical expenses.
Citing
Lisney, Cementation maintains that Sebree is precluded from
filing this application for benefits because it has already been
adjudicated. This argument is equally
unpersuasive. We have twice determined
that LIRC properly reserved jurisdiction if Sebree applied for additional
disability and medical expenses.
Lisney holds that an employer is required “to pay medical
expenses even after a final order has been issued.” Lisney, 171 Wis.2d at 503, 493
N.W.2d at 15 (emphasis added). Here,
the order is interlocutory, not final.
Moreover, the Lisney holding is based on an interpretation
of § 102.42(1), Stats., 1989-90,
and has no application here.
Cementation’s
final argument is that the doctrines of claim preclusion and issue preclusion
prohibit Sebree’s second application.[4] The application of preclusion doctrines to a
given set of facts is a question of law which this court reviews without deference
to the trial court. Lindas v.
Cody, 183 Wis.2d 547, 552, 515 N.W.2d 458, 460 (1994).
Under
claim preclusion, “a final judgment is conclusive in all subsequent
actions between the same parties [or their privies] as to all matters which
were litigated or which might have been litigated in the former proceeding.” Northern
States Power Co. v. Bugher, 189 Wis.2d 541, 550, 525 N.W.2d 723, 727
(1995) (emphasis added; quoted source omitted).
Issue
preclusion limits “the relitigation of issues that have been actually litigated
in a previous action.” Lindas, 183 Wis.2d at 558, 515 N.W.2d at
463. Issue preclusion does not require
an identity of parties. Id. Rather, courts must conduct a “fundamental
fairness” analysis which requires consideration of an array of factors in
deciding whether issue preclusion is equitable in a particular case. Id. at 559, 515 N.W.2d at 463.
We
need only address whether the doctrine of issue preclusion applies to the 1988
interlocutory order.[5] The “fundamental fairness” analysis requires
consideration of some or all of the following factors:
(1) could the party against whom preclusion is sought, as a matter of
law, have obtained judicial review of the judgment; (2) is the question one of
law that involves two distinct claims or intervening contextual shifts in the
law; (3) do significant differences in the quality or extensiveness of
proceedings between the two courts warrant relitigation of the issue; (4) have
the burdens of persuasion shifted such that the party seeking preclusion had a
lower burden of persuasion in the first trial than in the second; or (5) are
matters of public policy and individual circumstances involved that would
render the application of collateral estoppel to be fundamentally unfair,
including inadequate opportunity or incentive to obtain a full and fair
adjudication in the initial action.
Michelle T. v. Crozier, 173 Wis.2d 681, 688-89, 495 N.W.2d 327, 330 (1993).
Under
§ 102.18(1)(b), Stats., “the
department may in its discretion after any hearing make interlocutory findings,
orders and awards which may be enforced in the same manner as final
awards.” In addition, “[i]f the record
before the commission indicates that a definite determination cannot then be
made that the employee will not sustain a greater percentage of disability in
the future, the commission should reserve jurisdiction by making its award
interlocutory.” Vernon County v. DILHR, 60 Wis.2d 736, 740, 211
N.W.2d 441, 443 (1973) (quoting Larsen Co. v. Industrial Comm'n,
9 Wis.2d 386, 392, 101 N.W.2d 129, 132 (1960)).
This
was exactly what occurred here. LIRC
specifically found that there was no evidence submitted by Sebree suggesting
permanent partial disability or the imposition of restrictions which prevented
the assessment of earning capacity.
However, LIRC determined that Sebree may be in need of additional
medical treatment and may be entitled to additional disability in the
future. In circumstances such as this,
the supreme court has mandated that LIRC reserve jurisdiction by making its
award interlocutory. We are bound by
the precedent of our supreme court. Livesey
v. Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339, 341 (Ct. App.
1979). Based upon the individual
circumstances of this case, it would be fundamentally unfair to apply the
doctrine of issue preclusion.
Accordingly, we affirm LIRC’s interlocutory order awarding Sebree
permanent total disability and medical expenses.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
[2] On December 22,
1994, LIRC modified and, as modified, affirmed the ALJ’s findings and order of
March 24, 1994.
[3] Cementation paid
permanent partial disability at ten percent compared to disability to the body
as a whole for the 1974 injury and fusion surgery. Tyne’s opinion resulted in an additional two percent rating
attributable to the 1986 injury.
[4] Although Cementation
refers to the doctrine of estoppel by record in its brief, the argument is
undeveloped. Accordingly, we decline to
consider it. Fritz v. McGrath,
146 Wis.2d 681, 686, 431 N.W.2d 751, 753 (Ct. App. 1988) (appellate court does
not consider arguments “broadly stated but never specifically argued.”).