July 19, 2017 -- Flug v. LIRC, Wal-Mart Associates, and New Hampshire Insurance Company
The Wisconsin Supreme Court issued its decision recently affirming a
commission
decision in a worker's compensation case in
Tracie L. Flug v. LIRC, Wal-Mart Associates, and New Hampshire Insurance
Company, 2017 WI 72, __Wis. 2d __, __N.W.2d__. The case dealt with the payment of disability under Wis. Stat.
§ 102.42(1m) in cases where a worker underwent treatment in the good
faith belief that he or she was treating a work injury, but the
commission subsequently held that the need for treatment was not due to
an injury compensable under the Worker's Compensation Act. In upholding the commission's decision, the Court stated:
¶34 We hold today that an
employee is not eligible for benefits under Wis. Stat. § 102.42(1m) if
the disability-causing treatment was directed at treating something
other than the employee's compensable injury. Because Ms. Flug's surgery
treated her pre-existing condition, not her compensable injury, her
claim must be disallowed.
January 23, 2017 -- Farewell to Commissioner Jordahl
Commissioner Bill Jordahl has accepted a new position as the Executive Assistant to the Chair of the Public Service Commission where he will be able to take advantage of his extensive knowledge of the utility industry. Commissioner Jordahl served the state as a commissioner for LIRC since 2013. His last day with LIRC was January 20, 2017.
Important Notice - Petitions to LIRC
Pursuant to 2015 Wis. Act 334 (effective April 3, 2016), petitions for commission review of Department of Workforce Development (DWD) unemployment insurance (UI) appeal tribunal decisions must be filed with the commission and can no longer be filed with the DWD hearing offices. A petition for review may be filed with the commission in any of the following ways:
A petition for review may not be filed by telephone or email. A petition for review must be received by the commission or postmarked within 21 days after the DWD appeal tribunal decision was mailed to the party's last known address or electronically delivered. Wis. Stat. § 108.09(6)(a).
July 19, 2016 -- Supreme Court to Hear UI Case
The Wisconsin Supreme Court has accepted a petition
for review in Operton v. LIRC, a case involving the interpretation of
the new “substantial fault” disqualification provision of the
unemployment insurance law. The court's summary of the case is available
at
https://www.wicourts.gov/news/view.jsp?id=819.
June 1, 2016
-- New Look for Commission's Decisions
In June 2016 the commission will be rolling out a
new decision format. Some of the changes are necessary due to recent law
changes, but other changes are designed to make the decisions more
readable for parties and to protect the confidentiality of personal
information. The commission was guided in its revisions by various
research and sources, such as
http://www.ca7.uscourts.gov/rules/painting_with_print.pdf It
has been more than a decade since the format of the commission's
decisions was reviewed and updated. We appreciate your patience as we
transition to the new format.
March 1, 2016
-- General Counsel Appointed
Governor Walker has appointed Maria Gonzalez Knavel
to the position of general counsel for the commission, effective March
1, 2016. Attorney Gonzalez Knavel is a retired partner and health care
lawyer with Foley & Lardner LLP where she counseled health care clients
on compliance issues, corporate matters and general operational issues
of health care entities (including providers and medical device
manufacturers), and Medicare/Medicaid reimbursement. The law
providing for a gubernatorial appointment of the commission's general
counsel was created in 2015 Wis. Act 55, the state budget bill. Tracey
Schwalbe, who served as general counsel since 2010, will continue to
serve the commission as deputy general counsel.
February 17, 2016
-- Court of Appeals Dismisses DWD's lawsuits against LIRC
The Wisconsin Court of Appeals today issued its
decision in
DWD v. LIRC (Hogan, et al.), 2014AP2928, etc.,
concerning the competency of a court to proceed in an improperly venued
appeal of a LIRC decision. The Wisconsin Department of Workforce
Development (DWD) brought several lawsuits against LIRC, UI benefit
claimants, and their employers challenging LIRC's findings that the
claimants were eligible for UI benefits. DWD brought the cases in
Kenosha County where only one defendant resided. The circuit court
dismissed the cases with no connection to Kenosha County, ruling that
this venue defect deprived it of competence to proceed. DWD appealed to
the court of appeals. The appellate court held that the venue provisions
of the statute are central to the statutory scheme, and summarized the
following relevant principles: failure to comply with the venue
provisions deprives the court of competency to proceed; default is the
appropriate remedy when a court lacks competence to proceed, although a
court may transfer a case to a proper venue so long as the error arose
from a good faith error; and the transfer tolls the time limits for
filing and allows the case to proceed so long as it was timely filed
initially. In this case, the court found that it was apparent that DWD
had no good faith and belief that Kenosha County was the proper venue
and, therefore, the circuit court did not have competence to proceed and
properly dismissed the cases.
February 4, 2016
-- Court of Appeals Affirms LIRC on UI Fraud Law
The Wisconsin Court of Appeals recently affirmed
the commission's decision in
DWD v. LIRC (Wallenkamp), 2015AP716
concerning concealment. The Wisconsin Department of Workforce
Development (DWD) brought several lawsuits against LIRC challenging
LIRC's findings of no concealment by UI benefit claimants. LIRC found
that the claimants had made honest mistakes and did not intend to
mislead or defraud the department. The circuit courts agreed with LIRC
that DWD had failed to prove that the claimants intended to conceal
information when claiming benefits. DWD appealed the Wallenkamp circuit
court decision to the court of appeals. The appellate court found that
LIRC's decision was supported by substantial and credible evidence, and
that LIRC did not misinterpret the statutory definition of conceal, as
had been argued by DWD: “A determination that a claimant did not intend
to mislead or defraud the DWD necessarily incorporates a determination
that the claimant did not intend to seek unentitled benefits. LIRC's
interpretation and application of the statute does not alter the
statute's meaning and thus is reasonable.”
August 11, 2015
-- ER Digest
The
2015 Edition of the Equal Rights Decision
Digest is now available online. This edition is updated with
summaries of relevant LIRC and court decisions issued during calendar
year 2014.
July 24, 2015 – Briefing Schedule Changes for
Worker's Compensation Cases.
In response to requests from attorneys, the
commission has changed its regular briefing schedule for worker's
compensation cases. Beginning with briefing schedules first issued on
July 27, 2015, petitioners will have 30 days to file a brief,
respondents will have 30 days to file a response brief, and petitioners
will have 10 days to file a reply brief. No extensions will be granted
to the standard 30-30-10 briefing schedule except in response to written
requests for extensions and only for extraordinary circumstances.
July 23, 2015 – Courts Disagree with LIRC in Social
Security Disability Insurance Cases.
Several appeals came to LIRC that involved
interpretation of a new statute, § 108.04(12)(f)1., that contained a
disqualification provision for UI claimants who also received SSDI
benefits. LIRC found the statutory language to be clear and unambiguous
and applied the language literally to disqualify claimants from UI
benefits in the week they actually received the SSDI benefit payment.
Three circuit courts have disagreed with LIRC's interpretation and
reversed LIRC's decisions. The courts agreed with the Department of
Workforce Development's interpretation of the provision that the statute
disqualified applicants for an entire month of UI benefits if they
received SSDI benefits in the month. See Wisconsin Dep't of Workforce
Dev. v. Wisconsin Labor & Indus. Comm'n & Morse, Case No. 14CV752 (Wis.
Cir. Ct. Washington Cnty. July 7, 2015); Wisconsin Dep't of Workforce
Dev. v. Wisconsin Labor & Indus. Comm'n & Bullock, Case No. 14CV3249
(Wis. Cir. Ct. Dane Cnty. May 27, 2015); and Wisconsin Dep't of
Workforce Dev. v. Wisconsin Labor & Indus. Comm'n & Plotz, Case No.
14CV308 (Wis. Cir. Ct. Marinette Cnty. July 23, 2015, bench decision).
In light of the three circuit court decisions, and the fact that the DWD
has proposed a law change to the UI Advisory Council to clarify the
language of the statute, the commission has decided to withdraw its
appeal of the Bullock case in the court of appeals.
July 22, 2015 -- 2014 Commission Statistics
2014 Commission Statistics are now available on
website and can be found at
http://lirc.wisconsin.gov/pdf/lrc_14st.pdf
July 16, 2015 -- Chairperson Laurie McCallum
presented a “2015 LIRC Case Law Update” at the 13th Annual Worker's
Compensation Seminar.
The seminar was hosted by the Wisconsin Association
of Worker's Compensation Attorneys Inc. (WAWCA), a group of legal
practitioners representing both applicants and respondent employers and
insurance companies. All of the commissioners and several commission
review attorneys also attended the conference.
June 9, 2015 -- Dave Falstad Confirmed as
Commissioner by Wisconsin Senate.
The Wisconsin Senate voted 33-0 to confirm Dave
Falstad as a commissioner to serve a term ending March 1, 2021.
June 4, 2015 -- Dave Falstad's Re-Appointment as
Commissioner Moves Forward.
The Wisconsin Senate Committee on Labor and
Government Reform recommended confirmation of Dave Falstad by a vote of
5 Ayes, 0 Noes. The appointment next goes to the full Senate for
approval.
May 22, 2015 -- LIRC Again Affirmed in UI
Concealment Case.
The Sheboygan County Circuit Court affirmed LIRC in
a case brought by DWD challenging LIRC's finding of no concealment by
the UI benefit claimant. The court applied great weight deference to
LIRC's decision and affirmed LIRC's finding that the claimant made an
honest mistake when claiming benefits.
DWD v. LIRC and Eric Van De Loo,
Case No. 14CV547 (Wis. Cir. Ct. Sheboygan Cnty. May 21, 2015). See other
concealment cases that affirmed LIRC under April 9, 2015 news item.
April 24, 2015 -- New Website Launched!
The Commission first established a website with a
searchable database of its significant decisions and summaries of court
cases in the mid-1990s. Over the years, LIRC continued to organize its
decisions on the website according to the UI Decision Digest, the
Worker's Compensation Handbook by John D. Neal and Joseph Danas,
Jr., and the Equal Rights Decision Digest. The Commission has now
updated the website to make it more user-friendly and responsive on
mobile devices. We thank Dave Nance for developing the website and
maintaining it for the past 20 years, our new website developer, Adam
Erickson, and the web team at the Department of Workforce Development
for their time and creativity on this project!
April 9, 2015 -- LIRC Again Affirmed in UI
Concealment Case.
The Wisconsin Department of Workforce Development
(DWD) brought several lawsuits against LIRC challenging LIRC's findings
of no concealment by UI benefit claimants. LIRC found that the claimants
made honest mistakes and did not intend to conceal information from the
department. In all of the circuit court decisions to date, the courts
have agreed with LIRC that DWD failed to prove that the claimants
intended to conceal information when claiming benefits. Most recently,
in DWD v. LIRC and Anita Shaw, Case No. 14CV5910 (Wis. Cir. Ct.
Milwaukee Cnty. Apr. 9, 2015), Milwaukee County Circuit Court Judge John
J. DiMotto also affirmed LIRC, holding that LIRC reasonably concluded
that an “honest mistake” does not constitute concealment. See other
circuit court decisions upholding LIRC's findings of no concealment:
March 23, 2015 -- Dave Falstad reappointed as
Commissioner.
On March 23,
Dave Falstad was appointed by
Governor Walker to another six-year term as a commissioner. The
appointment must be confirmed by the Wisconsin Senate. Dave served as a
commissioner from 1995 to 2007, and as Chairperson from 1998 to 2004. He
was most recently appointed to complete the six-year term of former
Commission Chairperson, Bob Glaser, who retired in 2013.
March 16, 2015 -- LIRC Again Affirmed on 2013 Wis.
Act 20 Applicability Date.
The Circuit Court for Shawano-Menominee County, Br.
II, Shawano County Division, in DWD v. LIRC and Tourtillott, Case No.
14CV230 (Wis. Cir. Ct. Shawano-Menominee Cnty. Mar. 16, 2015), affirmed
LIRC's interpretation of the applicability date provision of certain law
changes as applying to determinations issued or appealed as of January
5, 2014. The court rejected arguments by the Department of Workforce
Development (DWD) that the LIRC interpretation was not reasonable, and
stated that the LIRC interpretation was more reasonable than that of the
DWD. The DWD brought several lawsuits against LIRC regarding this
applicability date interpretation. In all of the circuit court decisions
to date, the courts have agreed that LIRC applied the new law correctly
in the cases. See other circuit court decisions upholding LIRC's
application of the law:
March 12, 2015 -- Laurie
McCallum re-elected chairperson.
On March 12, the commissioners voted unanimously to
re-elect Laurie
McCallum to another two-year term as Chairperson of the
Commission. She was first elected to be the Chairperson in 2013. The
Chairperson serves as the head of the agency under the statutes and
rules of the Commission, subject to the policies established by the
Commission. Laurie previously served as the Chairperson of the Wisconsin
Personnel Commission for 13 years.
March 23, 2015 --
Dave Falstad is re-appointed as a commissioner for a six-year term
ending in 2021.
March 12, 2015 --
Laurie McCallum re-elected chairperson.
September 16, 2014
-- In a decision recommended for publication, the Court of Appeals has
clarified the applicability of the Wisconsin Fair Employment Act's
statute of limitations to cases of pay discrimination.
Diane Mack was hired by Rice Lake Harley-Davidson
to work as a motorcycle salesperson in 2003. In 2009, after her
employment was terminated, she filed a discrimination complaint under
the WFEA, alleging that she had been discriminatorily paid less than a
male colleague, Dodge, who was hired in 2004 and given a salary higher
than hers. Rice Lake argued that the WFEA's 300-day statute of
limitations began to run in 2004, when Mack was aware that Dodge was
paid more. An ALJ found the pay allegation timely, relying on the
paycheck accrual rule in the federal Lilly Ledbetter Fair Pay Act of
2009. On appeal, LIRC rejected the ALJ's reliance on the Ledbetter
Act, but it arrived at the same conclusion based on a different
rationale.
LIRC noted that in a published decision issued
almost 20 years ago, Abbyland Processing v. LIRC, 206 Wis. 2d
309, 557 N.W.2d 419 (Ct. App. 1996), the Court of Appeals had held
that "[S]alary discrimination is an ongoing matter and can be challenged
if the result of the discrimination occurs both within and outside the
statute of limitations." LIRC also noted though, that in
subsequent years it had issued decisions which relied more on federal
court interpretations of the statute of limitations in Title VII, and
which increasingly moved away from the notion of salary discrimination
as ongoing discrimination. In
LIRC's decision in Mack, it determined that the course
taken by such decisions was contrary to the holding of Abbyland,
and that it was appropriate for it to "find its bearings and right its
course" in the interpretation of the WFEA's statute of limitations.
In this week's decision,
Rice Lake Harley Davidson v. LIRC and Diane
Mack, 2014 WI App 104, 357 Wis. 2d 621, 855 N.W. 2d
882, the Court of Appeals agreed with and affirmed LIRC's decision.
Extending due weight deference to LIRC's interpretation, the court
reasoned that in view of the Abbyland decision, LIRC's
interpretation was more reasonable. Abbyland, the
court stated, is "binding precedent ... directly on point." The
court also distinguished several other decisions which Rice Lake had
argued were inconsistent with the court's reading of Abbyland.
September 4, 2014
-- The 2014 Edition
of the Equal Rights Decision Digest is now available
online. This edition is updated with summaries of relevant LIRC and
court decisions issued during calendar year 2013.
July 22, 2014
-- In a decision issued today, the Wisconsin Supreme Court
affirmed a 2011 LIRC decision,
Asma Masri v. Medical College of Wisconsin,
ERD Case No. CR200902766 (LIRC Aug. 31, 2011), concerning the
applicability of the Wisconsin Health Care Worker's Protection Act, Wis.
Stat. § 146.997.
Giving “due weight” deference to LIRC's decision,
the court agreed with LIRC that the HCWPA applies only to employees, a
category that does not include interns who do not receive compensation
or tangible benefits.
Asma Masri v. LIRC and Medical College of
Wisconsin, 2014 WI 81, 356 Wis. 2d 405, 850 N.W.2d
298.
March 20, 2014
--
2013 Statistics,
providing information about appeals to and disposition by the commission
of cases in calendar year 2013, are now available at this website.
February 12, 2014
-- As a result of a change made by the Department of Workforce
Development, on whose servers LIRC's website is currently maintained,
LIRC has been required to shift to a different type of search engine
for pages at our website.
DWD decided to move to a "Google Search Appliance"
("GSA") search engine. This will affect the process of searching
for decisions through our
UI decision search,
WC decision search
and ER decision
search pages, as well as our
whole-site search
page. Users will find that as a result of this change, there are
significant changes in the way queries are allowed/required to be
worded. This includes, but is not limited to, a different default
treatment of multiple words in series (previously treated as a phrase,
now treated as words joined by an AND operator, with phrases created by
use of quote marks), loss of the ability to "nest" phrases,
and the loss of the "wild card" feature.
September 16, 2014 -- In a decision recommended for publication, the Court of Appeals has clarified the applicability of the Wisconsin Fair Employment Act's statute of limitations to cases of pay discrimination.
Diane Mack was hired by Rice Lake Harley-Davidson to work as a motorcycle salesperson in 2003. In 2009, after her employment was terminated, she filed a discrimination complaint under the WFEA, alleging that she had been discriminatorily paid less than a male colleague, Dodge, who was hired in 2004 and given a salary higher than hers. Rice Lake argued that the WFEA's 300-day statute of limitations began to run in 2004, when Mack was aware that Dodge was paid more. An ALJ found the pay allegation timely, relying on the paycheck accrual rule in the federal Lilly Ledbetter Fair Pay Act of 2009. On appeal, LIRC rejected the ALJ's reliance on the Ledbetter Act, but it arrived at the same conclusion based on a different rationale.
LIRC noted that in a published decision issued almost 20 years ago, Abbyland Processing v. LIRC, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996), the Court of Appeals had held that "[S]alary discrimination is an ongoing matter and can be challenged if the result of the discrimination occurs both within and outside the statute of limitations." LIRC also noted though, that in subsequent years it had issued decisions which relied more on federal court interpretations of the statute of limitations in Title VII, and which increasingly moved away from the notion of salary discrimination as ongoing discrimination. In LIRC's decision in Mack, it determined that the course taken by such decisions was contrary to the holding of Abbyland, and that it was appropriate for it to "find its bearings and right its course" in the interpretation of the WFEA's statute of limitations.
In this week's decision, Rice Lake Harley Davidson v. LIRC and Diane Mack, 2014 WI App 104, 357 Wis. 2d 621, 855 N.W. 2d 882, the Court of Appeals agreed with and affirmed LIRC's decision. Extending due weight deference to LIRC's interpretation, the court reasoned that in view of the Abbyland decision, LIRC's interpretation was more reasonable. Abbyland, the court stated, is "binding precedent ... directly on point." The court also distinguished several other decisions which Rice Lake had argued were inconsistent with the court's reading of Abbyland.
September 4, 2014 -- The 2014 Edition of the Equal Rights Decision Digest is now available online. This edition is updated with summaries of relevant LIRC and court decisions issued during calendar year 2013.
July 22, 2014 -- In a decision issued today, the Wisconsin Supreme Court affirmed a 2011 LIRC decision, Asma Masri v. Medical College of Wisconsin, ERD Case No. CR200902766 (LIRC Aug. 31, 2011), concerning the applicability of the Wisconsin Health Care Worker's Protection Act, Wis. Stat. § 146.997.
Giving “due weight” deference to LIRC's decision, the court agreed with LIRC that the HCWPA applies only to employees, a category that does not include interns who do not receive compensation or tangible benefits.
Asma Masri v. LIRC and Medical College of Wisconsin, 2014 WI 81, 356 Wis. 2d 405, 850 N.W.2d 298.
March 20, 2014 -- 2013 Statistics, providing information about appeals to and disposition by the commission of cases in calendar year 2013, are now available at this website.
February 12, 2014 -- As a result of a change made by the Department of Workforce Development, on whose servers LIRC's website is currently maintained, LIRC has been required to shift to a different type of search engine for pages at our website.
DWD decided to move to a "Google Search Appliance" ("GSA") search engine. This will affect the process of searching for decisions through our UI decision search, WC decision search and ER decision search pages, as well as our whole-site search page. Users will find that as a result of this change, there are significant changes in the way queries are allowed/required to be worded. This includes, but is not limited to, a different default treatment of multiple words in series (previously treated as a phrase, now treated as words joined by an AND operator, with phrases created by use of quote marks), loss of the ability to "nest" phrases, and the loss of the "wild card" feature.
For more information, please refer to the search pages mentioned above.
