Ronald W. Coutts, Sr. v. Wisconsin Retirement Board
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SUPREME COURT OF WISCONSIN Case No.: 95-1905, 95-2228 Complete Title of Case: Ronald W. Coutts, Sr. Petitioner-Appellant, v. Wisconsin Retirement Board, Respondent-Respondent-Petitioner, City of Racine, Respondent. -----------------------------Byron Des Jarlais, Petitioner-Respondent, v. Wisconsin Retirement Board, Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 201 Wis. 2d 178, 547 N.W.2d 821 (Ct. App. 1996) PUBLISHED Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: May 22, 1997 January 27, 1997 Circuit Dane Angela B. Bartell & Michael N. Nowakowski JUSTICES: Concurred: Dissented: Not Participating: For the respondent-respondent/appellantpetitioner the cause was argued by L. Jane Hamblen, assistant attorney general, with whom on the briefs was James E. Doyle, ATTORNEYS: attorney general. For the petitioner-appellant there was a brief by Bruce F. Ehlke and Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, Madison and oral argument by Bruce F. Ehlke. For the petitioner-respondent there was a brief by Lester A. Pines, Cheryl Rosen Weston and Cullen, Weston, Pines & Bach, Madison and oral argument by Lester Pines. Nos. 95-1905 & 95-2228 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. Nos. 95-1905 & 95-2228 STATE OF WISCONSIN : IN SUPREME COURT FILED Ronald W. Coutts, Sr., MAY 22, 1997 Petitioner-Appellant, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. Wisconsin Retirement Board, Respondent-Respondent-Petitioner, City of Racine, Respondent. Byron Des Jarlais, Petitioner-Respondent, v. Wisconsin Retirement Board, Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 ANN WALSH BRADLEY, J. Affirmed. The Wisconsin Retirement Board ("the Board") seeks review of a published decision of the court of appeals,1 which held that the 1 Board is not statutorily Coutts v. Wisconsin Retirement Bd., 201 Wis. 2d 178, 547 N.W.2d 821 (Ct. App. 1996)(consolidating Coutts' and Des Jarlais' cases). 1 Nos. 95-1905 & 95-2228 authorized to reduce the duty disability benefits of Ronald W. Coutts, Sr. and Byron Des Jarlais with worker's compensation benefits previously paid to them. The Board argues that the court of appeals erred because the statute in question requires an offset of compensation duty disability payments, benefits regardless compensation payments are made. unambiguously mandates an with of when all worker's the worker's We conclude that the statute offset of duty disability benefits only with worker's compensation payments paid after the duty disability benefit payments commence. Accordingly, we affirm the decision of the court of appeals. I. ¶2 The parties have stipulated to the relevant facts: Ronald W. Coutts, Sr. ¶3 Ronald W. Coutts, Sr. was employed as a City of Racine firefighter, participant" (WRS). and for was therefore purposes of the a "protective Wisconsin occupation Retirement See Wis. Stat. § 40.02(48)(1995-96). 2 System In August 1988, Coutts suffered an injury to his right shoulder while fighting a fire. Following surgery on the shoulder and a period of physical therapy, Coutts returned to light duty employment at the Racine permanent Fire Department physical in limitations January 1989. resulting injury eventually forced Coutts to retire. from However, the the shoulder His last day on the Fire Department payroll was September 30, 1989. 2 Unless otherwise indicated, references are to the 1995-96 volume. 2 all future statutory Nos. 95-1905 & 95-2228 ¶4 Following his injury, Coutts filed a claim for permanent partial disability benefits pursuant to the Worker's Compensation Act, Chapter 102, Wis. Stat.3 In April 1989, the Worker's Compensation Division of the Department of Industry, Labor and Human Relations (DILHR) determined that Coutts was entitled to permanent partial disability benefits. The permanent partial disability benefits were paid at a rate of $524.33 per month, effective January 7, 1989. Coutts received the last $524.33 full In January 1990, monthly payment of permanent partial disability benefits, and in February 1990, he received a final payment of $101.88. ¶5 Coutts also applied for duty disability benefits under Wis. Stat. § 40.65. Trust Funds (DETF) 4 In May 1989, the Department of Employe advised Coutts receive duty disability benefits. of the Fire Department, he that he was eligible to When Coutts left the payroll began receiving § 40.65 duty disability benefits. 3 Coutts also applied for and received worker's compensation temporary total disability benefits. 4 Section 40.65(4) provides: A protective occupation participant is entitled to a duty disability benefit as provided in this section if: (a) The employe is injured while performing his or her duty or contracts a disease due to his or her occupation; (b) The disability is likely to be permanent; and (c) 1. The disability retire from his or her job; causes the employe to 2. The employe's pay or position is reduced or he or she is assigned to light duty . . . . 3 Nos. 95-1905 & 95-2228 ¶6 The DETF reduced Coutts' § 40.65 duty disability benefits each month by $524.33, which was the monthly amount of worker's compensation permanent partial disability benefits that he was receiving at the time.5 The net result was that Coutts' monthly combination of duty disability and worker's compensation 5 See Wis. Stat. § 40.65(5)(b), providing in part: The Wisconsin retirement board shall reduce the amount of a participant's monthly benefit under this section by the amounts under subds. 1. to 6., . . . . The Wisconsin retirement board may assume that any benefit or amount listed under subds. 1. to 6. is payable to a participant until it is determined to the board's satisfaction that the participant is ineligible to receive the benefit or amount . . . . 1. Any OASDHI benefit payable to the participant or the participant's spouse or a dependent because of the participant's work record. 2. Any unemployment compensation benefit payable to the participant because of his or her work record. 3. Any worker's compensation benefit payable to the participant, including payments made pursuant to a compromise settlement under s. 102.16(1). A lump sum worker's compensation payment or compromise settlement shall reduce the participant's benefit under this section in monthly amounts equal to 4.3 times the maximum benefit which would otherwise be payable under ch. 102 for the participant's disability until the lump sum amount is exahusted. 4. Any disability and retirement benefit payable to the participant under this chapter [40], or under any other retirement system, that is based upon the participant's earnings record and years of service. . . . 5. All earnings payable to the participant from the employer under whom the duty disability occurred. 6. All earnings payable to the participant from an employer, other than the employer under whom the duty disability occurred, and all income from selfemployment . . . . 4 Nos. 95-1905 & 95-2228 benefits were the benefits alone. disability same as if he received duty disability However, the monthly $524.33 reduction in duty benefits continued even after Coutts stopped receiving worker's compensation benefits in February 1990. The DETF the based this continued duty disability reduction on worker's compensation payments that Coutts had received in the months prior to the commencement of duty disability benefits. As such, after 1990, February his worker's Coutts compensation received $524.33 benefits less ceased month per in in aggregate benefits than he received in the immediately preceding months. ¶7 In a letter sent to the DETF in August 1990, Coutts objected to the offsets against duty disability benefits occurring after his worker's compensation benefits ended. The DETF responded that duty disability benefits are to be reduced by all worker's disability compensation injury, benefits regardless of received whether for the the same worker's compensation payments are made before or after the commencement of duty disability benefits. determination to the Board. ¶8 The September 15, Board, 1994, in Coutts appealed the DETF's order dated See § 40.03(8)(f). a final concluded decision that the and plain language of § 40.65(5)(b)3 requires an offset of all worker's compensation payments against § 40.65 duty disability benefits, regardless of the timing of the worker's compensation benefits payments.6 Coutts filed a petition for certiorari review in the Circuit Court for Dane County, Angela Bartell, Judge. 6 The Board's final decision and order adopted the proposed decision and order of the hearing examiner. 5 Nos. 95-1905 & 95-2228 ¶9 The circuit court ambiguous. provisions evince a However, in according § 40.65, broad determined as legislative to well the as intent that circuit the to § 40.65(5)(b)3 is court, legislative offset duty other history, disability payments with other sources of income, without regard to the time that the duty disability payments commence. Determining that the Board's interpretation of § 40.65 was consistent with the legislative intent, the circuit court affirmed the Board's decision. Coutts appealed. concluding that the The statute is court of appeals unambiguous and reversed, does not authorize the DETF to reduce § 40.65 duty disability benefits with previously paid worker s compensation benefits. petitioned this court for review. 6 The Board Nos. 95-1905 & 95-2228 Byron L. Des Jarlais ¶10 Byron L. Des Jarlais was employed as a deputy sheriff for Vilas County. In 1988, Des Jarlais suffered a work-related back which injury for he received both temporary total disability and permanent partial disability benefits under the Worker s Compensation Act. Des Jarlais received a total of $8,190 in permanent partial disability payments, with the final payment being made in December 1988.7 ¶11 Des After aggravating his back injury while on the job, Jarlais April applied 1991. The for DETF § 40.65 duty approved disability his benefits application, disability payments commenced in August 1991. and in duty The DETF reduced Des Jarlais monthly duty disability payment by $503.10 until the amount disability deducted equaled payments that December 1988. ¶12 The disability the Des $8,190 Jarlais in permanent partial had received through 8 Board benefits rejected should Des not be Jarlais reduced claim by that the his worker s compensation paid nearly three years prior to the commencement of duty disability benefits. Des Jarlais appealed to the Circuit Court for Dane County, Michael Nowakowski, Judge, which 7 The permanent partial disability was computed as 70 weeks at $117 per week, for a total of $8,190. 8 In 1993, Des Jarlais received an additional permanent partial disability award of $587.33, which the DETF deducted from his monthly duty disability check. Because the additional $587.33 of worker s compensation was paid after the commencement of duty disability benefits, Des Jarlais does not dispute that the DETF properly reduced his duty disability benefits by that amount. We therefore do not address the offset of the additional $587.33. 7 Nos. 95-1905 & 95-2228 ruled in his favor. The circuit court concluded that § 40.65 unambiguously precluded the DETF from reducing duty disability benefits with benefits. previously received worker s compensation The court of appeals affirmed the decision of the circuit court, and the Board petitioned this court for review. II. ¶13 phrase The sole question before this court is whether the "any worker's compensation § 40.65(5)(b)3 authorizes participant's duty the benefit Board disability to payable" reduce benefits with in a WRS worker's compensation benefits paid prior to the commencement of duty disability benefits. Generally, the interpretation of a statute is a question of law reviewed by this court under a de novo standard, without deference to the decisions of the court of appeals, circuit court, or administering agency. State ex rel. Parker v. Sullivan, 184 Wis. 2d 668, 699, 517 N.W.2d 449 (1994). In certain instances, however, we will refrain from substituting our interpretation of a statute for that of the agency charged interpretation with of a administering statute is the statute. reviewed under An one agency's of three standards: de novo, "due weight" deference, or "great weight" deference. Sauk County v. WERC, 165 Wis. 2d 406, 413-14, 477 N.W.2d 267 (1991). ¶14 An agency's interpretation of a statute will be reviewed de novo if any of the following are true: 1) the issue before the agency is clearly one of first impression;9 2) a legal 9 See Kelley Co., Inc. v. Marquardt, 172 Wis. 2d 234, 24445, 493 N.W.2d 68 (1992). 8 Nos. 95-1905 & 95-2228 question is presented and there is no evidence of any special agency expertise or experience;10 or 3) the agency's position on an issue has guidance.11 been so inconsistent that it provides no real Under de novo review, the agency's interpretation is given no weight. William Wrigley, Jr. Co. v. Wisconsin Dep't of Revenue, 160 Wis. 2d 53, 71, 465 N.W.2d 800 (1991), rev'd on other grounds by Wisconsin Dep't. of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214 (1992). We conclude that de novo review is appropriate in these cases. ¶15 These cases are analogous to Kelley Co., Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992). Kelley was Relations' the (DILHR) Department of interpretation Industry, of the Labor phrase Inc. v. At issue in and Human "equivalent employment position" in the Family and Medical Leave Act (FMLA), Wis. Stat. § 103.10(8)(a)2. This court concluded that de novo review was appropriate, because the meaning of the statutory language was a question of first impression which DILHR had no experience or expertise. at 245. DILHR with respect to Kelley, 172 Wis. 2d The Kelley court based its conclusion on the fact that had adopted no administrative rules interpreting the meaning of the phrase at issue in that case, and that "the hearing examiner relied on no precedent and had no rules to aid him in arriving at his conclusion . . . ." Id. 10 See William Wrigley, Jr. Co. v. Wisconsin Dep't of Revenue, 160 Wis. 2d 53, 71, 465 N.W.2d 800 (1991), rev'd on other grounds by Wisconsin Dep't. of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214 (1992). 11 See Marten Transport, Ltd. v. DILHR, 176 Wis. 2d 1012, 1018-19, 501 N.W.2d 391 (1993). 9 Nos. 95-1905 & 95-2228 ¶16 For purposes of the instant cases, the Administrative Code is devoid of rules interpreting the phrase "any worker's compensation benefit payable," and there is no evidence in the record that the Board has ever considered whether § 40.65(5)(b)3 compels an benefits offset against of previously presently paid payable duty worker's compensation disability benefits. As in Kelley, in neither of the present cases did the hearing examiners rely on administrative rules or precedent in reaching the conclusion benefit prior that the phrase payable" includes to the "any worker's commencement of duty worker's compensation compensation benefits paid disability benefits. We therefore conclude that the issue presented in these cases is one of first impression in which the Board has no special experience or expertise, and that de novo review of the Board's interpretation of the phrase "any worker's compensation benefit payable" is appropriate. ¶17 We find unpersuasive the Board's citation to three instances in which it has applied § 40.65(5)(b)3 to offset duty disability benefits with previously paid worker's compensation benefits. Two of the cases cited by the Board are the very cases before this court. The third is a decision by the Board issued on the same day as its decision on Des Jarlais' claim.12 As such, all three cases are irrelevant to the issue of whether the meaning of § 40.65(5)(b)3 was a question of first impression for the Board when it rendered decisions on Coutts and Des Jarlais claims. 12 Feiereisen v. Wisconsin Retirement Board, No. 95-CV-0022 (Dane County, Wis. Cir. Ct. Aug. 22, 1995). 10 Nos. 95-1905 & 95-2228 ¶18 Having determined the appropriate standard of review, we turn next to interpreting the statutory provision at issue in these cases. identify When interpreting a statute, this court seeks to and Stockbridge effectuate School Dist. N.W.2d 96 (1996). statute. the v. intent DPI, 202 the Wis. 2d legislature. 214, 219, 550 We begin by considering the words of the If the statutory text is clear and unambiguous on its face, we need not look further. 220. of Stockbridge, 202 Wis. 2d at If the language is ambiguous, we will then construe the statute by examining scope, and object. ¶19 its history, context, subject matter, Id. For purposes of our ambiguity analysis, the relevant portion of § 40.65(5) provides: (b) The Wisconsin retirement board shall reduce the amount of a participant's monthly benefit under this section by the amounts under subs. 1. to 6 . . . . 3. Any worker's compensation benefit payable to the participant . . . . (Emphasis added). The Board, Coutts, and Des Jarlais agree that the language at issue has a clear meaning. However, Coutts and Des Jarlais view the statute as unambiguously supporting their position that previously duty paid disability worker's benefits compensation cannot be benefits, reduced whereas by the Board contends that the statute clearly sustains the opposite proposition. ¶20 Language understood to have is ambiguous more than if one it may meaning. be reasonably State ex rel. Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 155, 454 N.W.2d 792 (1990). However, a statute is not rendered 11 Nos. 95-1905 & 95-2228 ambiguous merely by virtue of the parties' disagreement over its meaning. Wagner Mobil, Inc. v. City of Madison, 190 Wis. 2d 585, 592, 527 N.W.2d 301 (1995). ¶21 The word "payable" is the key to interpreting this statute.13 Because the word is not defined in the statute, we look first to dictionary definitions of "payable."14 Payable is defined as: Capable of being paid; suitable to be paid; admitting or demanding payment; justly due; legally enforceable. A sum of money is said to be payable when a person is under an obligation to pay it. Payable may therefore signify an obligation to pay at a future time, but, when used without qualification, term normally means that the debt is payable at once, as opposed to "owing." Black's Law Dictionary 1128 (6th ed. 1990). See also Random House Unabridged Dictionary 1424 (2nd ed. 1993) ("payable" means "1. to be paid; due"). ¶22 These definitions demonstrate that the term "payable" refers to sums presently owing or to be remitted in the future. The definitions do not support the proposition that the word "payable" includes sums that have been remitted in the past. It 13 The Board incorrectly focuses on the word "any" in the § 40.65(5)(b)3 phrase "any worker's compensation benefit." The statute's use of the word "payable" modifies and restricts the scope of the phrase "any worker's compensation benefit." This fact may be illustrated by the phrase "any automobile," which describes a larger universe than the phrase "any automobile that is red." 14 The need to resort to a dictionary for the definition of statutory term is not a basis for determining that the term is ambiguous. See Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 156, 454 N.W.2d 792 (1990); State ex rel. Smith v. City of Oak Creek, 139 Wis. 2d 788, 798 n.6, 407 N.W.2d 901 (1987). 12 Nos. 95-1905 & 95-2228 is axiomatic that a sum which is "paid" is no longer "payable." We therefore conclude that § 40.65(5)(b)3 is unambiguous, and does not authorize the Board to reduce § 40.65 duty disability benefits with worker's compensation benefits paid prior to the commencement of duty disability benefits. ¶23 Our inquiry could end § 40.65(5)(b)3 is unambiguous. and give effect to the with the determination that Yet, in our quest to identify legislature's intent, we may assume solely for the sake of the inquiry that the statutory language is ambiguous. Even if the language is ambiguous, which it is not, there is strong extrinsic evidence that the legislature did not intend that the term "payable" in § 40.65(5)(b)3 include worker's compensation paid prior to the commencement of duty disability benefits. ¶24 When construing a statute, we examine the language in question in the context of the statute as a whole. See General Castings Corp. v. Winstead, 156 Wis. 2d 752, 758, 457 N.W.2d 557 (Ct. App. 1990), citing Falkner v. Northern States Power Co., 75 Wis. 2d 116, 124, 248 N.W.2d 885 (1977). Examining § 40.65 as a whole, we note that the term "payable" is used in each of the six that § 40.65(5)(b) the payments. statutory Board subsections shall describing deduct from the monthly types of income duty disability When the same term is used repeatedly in a single section, it is a reasonable deduction that the legislature intended that the term possess an identical meaning 13 Nos. 95-1905 & 95-2228 each time it appears. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 663, 539 N.W.2d 98 (1995).15 ¶25 The compensation disability without Board benefit the to the calls by worker's the same that payable" benefits regard ascribe asserts any timing meaning of to phrase for the a "any reduction compensation payments. "payable" worker's in payments Yet, in the duty if we remaining § 40.65(5)(b) subsections dealing with other types of income, unreasonable and absurd constructions of the statute arise, a result to be avoided. See Lake City Corp. v. City of Mequon, 207 Wis. 2d 156, 163, 558 N.W.2d 100 (1997) ("It is also a fundamental rule of statutory construction that any result that is absurd or unreasonable must be avoided"). ¶26 extended For example, if the Board's definition of "payable" is to § 40.65(5)(b)2, the phrase "any unemployment compensation benefit payable" would mandate a reduction in duty disability benefits by the amount of unemployment compensation received prior to the commencement of duty disability benefits. Such an offset would essentially effect a retroactive denial of unemployment compensation benefits, an anomalous result. Similarly, under the Board's conception of the word "payable," the phrase "all earnings payable" in §§ 40.65(5)(b)5 & 6 would authorize a reduction in duty disability benefits with employment earnings received prior to the commencement of duty disability payments. Such a construction is both unreasonable 15 See also Legislative Reference Bureau, Wisconsin Bill Drafting Manual 1997-1998 § 2.01(15)(a) (revised August 1996) (legislation "should use identical words for the expression of identical ideas to the point of monotony")(citation omitted). 14 Nos. 95-1905 & 95-2228 and unnecessary. The absurdities vanish under our determination that "payable" allows the reduction in duty disability only by contemporaneously received income described in § 40.65(5)(b). ¶27 within The Board's belief that the word "paid" is subsumed the statutory term "payable" is also belied legislature's creation of statutes using both words.16 by the If the Board is correct that "paid" is a lesser included meaning of "payable," then the legislature has repeatedly engaged in the hollow phrase. gesture of using both terms in the same descriptive Such a construction of the statute is at odds with the rule that effect must be given to each word of a statute if possible, so that no portion of the statute becomes superfluous. 16 See, e.g., Wis. Stat. § 59.64(4)(a)("orders, scrip or certificates of indebtedness shall bear no interest if paid or payable within one month from date of issuance"); Wis. Stat. § 71.78(2)("the department [of revenue] shall make available upon suitable forms prepared by the department information setting forth the net Wisconsin income tax, Wisconsin franchise tax or Wisconsin gift tax reported as paid or payable in the returns filed by any individual or corporation . . . ."); Wis. Stat. § 78.80(4)("The department of revenue shall inform each requester of the amount paid or payable under ss. 78.01, 78.40 and 78.555 . . . ."); Wis. Stat. § 102.835(1)(f)("'property' includes all tangible and intangible personal property and rights to that property, including compensation paid or payable . . . ."); Wis. Stat. § 108.04(2)(f)("A[n unemployment compensation] claimant is ineligible to receive benefits for any week for which benefits are paid or payable because the claimant knowingly provided the department [of industry, labor and job development] with a false social security number"); Wis. Stat. § 139.02(2)(a)("Each eligible producer [of fermented malt beverages] shall receive a credit in the amount of 50% of the tax paid or payable . . . on the first 50,000 barrels taxed . . . .); Wis. Stat. §§ 632.32(5)(i)2(authorizing automobile insurance policies that reduce uninsured and underinsured motorist coverage by "amounts paid or payable under any worker's compensation law"); Wis. Stat. § 812.30(7)("'Earnings' means compensation paid or payable by the garnishee for personal services . . . and includes periodic payments under a pension or retirement program") (emphasis added throughout). 15 Nos. 95-1905 & 95-2228 See Lake City, 207 Wis. 2d at 163; State v. Petty, 201 Wis. 2d 337, 355, 548 N.W.2d 817 (1996); Ann M.M. v. Rob S., 176 Wis. 2d 673, 680, 500 N.W.2d 649 (1993). Because the two words can and should be given distinct meanings, we conclude that "paid" does not come within the meaning of "payable." ¶28 history Contrary to the of § 40.65 offers Board's assertions, little, if any, the legislative insight into the meaning to be given to the phrase "any worker's compensation benefit payable." 1981, which The legislature enacted § 2, ch. 278, Laws of created § 40.65, in order to correct perceived problems in the then existing system of benefits for protective occupation participants in the WRS. the phenomenon caused by a of "duplicate lack of One of these problems was benefits" coordination or "double between duty dipping" disability benefits and "other income replacement programs such as social security, worker's compensation, unemployment compensation, the state retirement system, etc." See Report of Joint Survey Committee on Retirement Systems 3, LRB-4909/1. ¶29 We agree with the court of appeals that the legislative history is equivocal on the issue of whether duty disability benefits are to be reduced by worker's compensation benefits received prior to the commencement of duty disability payments. Coutts v. Wisconsin Retirement Bd., 201 Wis. 2d 178, 194-95, 547 N.W.2d 821 (Ct. App. 1996). history may history is support just as the Board's supportive of While the legislative position, the the legislative proposition that the legislature intended to address the "double dipping" problem by preventing the simultaneous receipt 16 of income listed in Nos. 95-1905 & 95-2228 § 40.65(5)(b) and full duty disability benefits. Our interpretation of § 40.65(5)(b)3 effectuates that intent. ¶30 from Finally, the Board contends that absurd results follow the reduced conclusion by worker's that duty disability compensation benefits payments paid cannot prior to be the commencement of duty disability payments: The disabled participant who applied for and collected worker's compensation permanent partial disability benefits before applying for the sec. 40.65 duty disability benefits would be able to collect unreduced monthly duty disability benefits. An otherwise identically situated disabled participant who first established sec. 40.65 duty disability eligibility and then applied for and collected worker's compensation benefits would have those benefits offset against the duty disability. Thus, in the latter case, winning a worker's compensation proceeding or agreeing to a compromise settlement would not increase that participant's monthly income. Petitioner's Brief at 25. ¶31 While its two levels of monthly income, we cannot say that such a result is absurd. As hypothetical we agree participants with will the receive Board that different the court of appeals noted, the participant who waits to apply for duty disability benefits gives up the opportunity to receive those benefits in the interim. Coutts, 201 Wis. 2d at 193. Thus, it appears that an injured employee has an incentive to apply for duty disability benefits without delay. ¶32 We recognize that in limited instances a participant may have an incentive to delay in applying for duty disability benefits. However, it appears to us that the unpredictability of workplace injury precludes most of the opportunity to engage in such strategizing. More importantly, to the extent that the 17 Nos. 95-1905 & 95-2228 statute does leave room for strategizing by participants, the authority rests with the legislature, rather than this court, to change the meaning of the statute. ¶33 In summary, we conclude that § 40.65(5)(b)3 does not authorize the reduction of duty disability benefits with worker's compensation benefits paid prior to the commencement of duty disability payments. legislature's intent is based Our upon determination the plain of meaning of the the statute, and is supported by the context in which the language in question appears. Accordingly, we affirm the decision of the court of appeals. By the Court. The decision affirmed. 18 of the court of appeals is
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