Colecta Mireles v. Labor & Industry Review Commission
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2000 WI 96 SUPREME COURT OF WISCONSIN Case No.: 98-1607 Complete Title of Case: Colecta Mireles, Plaintiff-Respondent-Petitioner, v. Labor & Industry Review Commission, Defendant, Ametek-Lamb Electric and National Union Fire Insurance of Pittsburgh, Defendants-Appellants. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 226 Wis. 2d 53, 593 N.W.2d 859 (Ct. App. 1999 Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: July 12, 2000 January 6, 2000 Circuit Racine Wayne J. Marik JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the plaintiff-respondent-petitioner, there were briefs by John A. Becker and Becker, French & DeMatthew, Racine, and oral argument by John A. Becker. For the defendants-appellants, there was a brief by Douglas M. Feldman, Oyvind Winstrom, and Lindner & Marsack, S.C., Milwaukee, and oral argument by Douglas M. Feldman. 2000 WI 96 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-1607 STATE OF WISCONSIN : IN SUPREME COURT Colecta Mireles, Plaintiff-Respondent-Petitioner, FILED v. JUL 12, 2000 Labor & Industry Review Commission, Cornelia G. Clark Clerk of Supreme Court Madison, WI Defendant, Ametek-Lamb Electric and National Union Fire Insurance of Pittsburgh, Defendants-Appellants. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 DAVID T. PROSSER, J. Colecta Mireles (Mireles) seeks review of a published decision of the court of appeals, Mireles v. LIRC, 226 Wis. 2d 53, 593 N.W.2d 859 (1999), reversing the judgment of the Circuit Court of Racine County, Wayne J. Marik, Judge. Mireles working for suffered Ametek-Lamb eventually returned "scheduled" wrist to injury an "unscheduled" Electric (Ametek) work and that precluded back of injury while Racine. She subsequently her from suffered a continuing No. employment at Ametek. 98-1607 Both an Administrative Law Judge (ALJ) and the Wisconsin Labor and Industry Review Commission (LIRC) denied Mireles's benefits. claim for additional Worker's Compensation The circuit court set aside LIRC's decision, but the court of appeals reversed. We accepted Mireles's petition for review. ¶2 worker Two apply issues for are presented: a reopening of an First, can unscheduled an injured injury award under Wis. Stat. § 102.44(6)(b)1 when a later scheduled injury causes the end of an employment relationship? Second, can an injured worker qualify for permanent total disability benefits pursuant to Wis. Stat. § 102.44(2) based upon a combination of scheduled and unscheduled injuries? ¶3 We conclude, first, that Wis. Stat. § 102.44(6)(b) allows the appropriate agency2 to reopen a Worker's Compensation award to account for loss of earning capacity from an 1 Wisconsin Stat. § 102.03(4) dictates that the right to compensation "shall in all cases be determined in accordance with the provisions of law in effect as of the date of the injury." Thus, when we discuss Mireles's claim for a reopening under Wis. Stat. § 102.44(6)(b), all references to Wisconsin statutes are to the 1991-92 volumes. When we address Mireles's claim for permanent total disability under Wis. Stat. § 102.44(2), all references are to the 1993-94 volumes. Nonetheless, the pertinent statutory provisions have remained unchanged since Mireles's first injury. 2 At the time Mireles applied for benefits, the Department of Industry, Labor and Human Relations (DILHR) administered the Worker's Compensation Act (the Act). Currently the Act is administered by the Worker's Compensation Division of the Department of Workforce Development (DWD). See 1995 Wis. Act 289, § 275, 1995 Wis. Act 27, §§ 9130(4), 9430(5). 2 No. unscheduled injury, even if a scheduled injury 98-1607 causes the termination of an employment relationship. ¶4 We conclude, second, that Wis. Stat. § 102.44(2) permits the agency to find permanent total disability based upon a combination of a worker's scheduled and unscheduled injuries. Read together with other statutes, Wis. Stat. §§ 102.44(2) and 102.44(4) specifically allow a scheduled injury to be considered as part of a total permanent disability. When a scheduled injury is part of a total permanent disability that includes an unscheduled injury, the disability is not covered by Wis. Stat. §§ 102.52, 102.53, or 102.55. Rather, it is covered by § 102.44(2). ¶5 appeals Accordingly, we reverse the decision of the court of and remand this case to LIRC for additional factual determinations so that LIRC may process Mireles's application under the legal standards we outline today. THE WORKER'S COMPENSATION ACT ¶6 Worker's Compensation benefits in Wisconsin are governed primarily by the Worker's Compensation Act (the Act), which is administered by the Department of Workforce Development (DWD). Statutes. Worker's The It Act appears establishes Compensation in a Chapter complex benefits. 102 of formula Before we the for Wisconsin determining address Mireles's claims, we review the general structure of the Act to aid in reviewing Mireles's situation. ¶7 The Act is designed to compensate workers injured in State v. LIRC, 136 Wis. 2d 281, the course of their employment. 3 No. 288, 401 N.W.2d 585 (1987). 98-1607 Benefits payable under the Act fall under one of two categories, temporary disability benefits or permanent disability benefits. ¶8 Temporary disability benefits injured worker's healing period. are payable during an Wis. Stat. § 102.43; John D. Neal and Joseph Danas, Jr., Worker's Compensation Handbook § 5.3 (4th ed. 1997). By contrast, permanent disability benefits compensate an injured worker when a disability remains after the healing Handbook period. Wis. Stat. § 102.44; The focus of § 5.15. Worker's Mireles's Compensation appeal is LIRC's refusal to award permanent disability benefits. ¶9 Permanent disability distinct categories: benefits are Stat. § 5.18. § 102.52. into two compensation for "scheduled" injuries and compensation for "unscheduled" injuries. Handbook divided Scheduled Scheduled Worker's Compensation injuries are enumerated injuries require the in Wis. payment of benefits for a specific number of weeks, as outlined in the statute. For example, § 102.52(1) 4 mandates an award of 500 No. weeks of benefits for Wisconsin Stat. the § 102.53 loss of mandates an arm at increases the of 98-1607 shoulder.3 awards for certain combinations of permanent disabilities. ¶10 that a The schedules contained in Wis. Stat. § 102.52 presume worker has lost a body part entirely. As noted, § 102.52(1) awards 500 weeks of benefits for the "loss of an arm at the shoulder." If a worker suffers a lesser injury, such as a major loss of motion of the arm at the shoulder, the worker is compensated based on how the injury compares to total loss of the arm. Wis. Stat. § 102.55(3). Thus, if a worker suffers a loss of motion of the arm deemed to be a 50 percent loss by DWD, the worker will receive 50 percent of the scheduled period of benefits, or 250 weeks. ¶11 Scheduled injury benefits are presumed to include compensation for an injured worker's loss of earning capacity. Mednicoff v. ILHR, 54 Wis. 2d 7, 14, 194 N.W.2d 670 (1972). 3 For both temporary and permanent disability benefits, the Act uses a figure representing two-thirds of the injured worker's average earnings as a basis for calculating benefits, Wis. Stat. §§ 102.43, 102.44, and 102.52, subject to calculation methods and minimum and maximum statutory levels of compensation. Wis. Stat. § 102.11; John D. Neal and Joseph Danas, Jr., Worker's Compensation Handbook §§ 5.4 and 5.15 (4th ed. 1997). The Act individualizes compensation by awarding benefits at a two-thirds earnings rate for a certain number of weeks, depending on how the injury is classified within the Act. Wis. Stat. §§ 102.43, 102.44, and 102.52; Worker's Compensation Handbook §§ 5.4 and 5.15. For permanent partial disability benefits, however, the maximum benefits are set low enough by statute that most injured workers receive the maximum benefits allowable. Worker's Compensation Handbook § 5.15. 5 No. ¶12 Mireles suffered scheduled injuries to 98-1607 her wrists. She received compensation for permanent partial disability for the damage to her right wrist. Mireles's right wrist injury was assessed to be a three percent permanent disability, and her scheduled award was limited by that determination pursuant to Wis. Stat. § 102.55(3). ¶13 Many injuries are not included schedules. Worker's Compensation "unscheduled" injuries, which are in Handbook primarily the statutory § 5.20. injuries These to the torso and head, as well as mental injuries, usually require more individualized evaluation than scheduled injuries. Compensation Handbook § 5.15. See Worker's Mireles suffered a back injury. Back injuries are unscheduled injuries. ¶14 Permanent total disability based upon an unscheduled injury or injuries results in lifetime benefits. § 102.44(2). Wis. Stat. Permanent partial disability from an unscheduled injury or injuries results in benefits payable for a portion of 1,000 weeks, depending upon how the causing permanent total disability." injury compares "to one Wis. Stat. § 102.44(3). For example, if a back injury causes a 20 percent permanent partial disability for a worker, the worker is eligible for 200 weeks of benefits, or 20 percent of 1,000 weeks. See Worker's Compensation Handbook § 5.33. ¶15 The calculation to determine permanent partial disability is based upon a medical comparison "with injuries that would render a person permanently totally disabled for industrial purposes . . . and not to injuries that would totally 6 No. 98-1607 disable a person functionally without regard to loss of earning capacity." ILHR, 40 Mednicoff, 54 Wis. 2d at 11 (quoting Kurschner v. Wis. calculation 2d 10, attempts to 18, 161 measure N.W.2d an 213 injured (1968)). worker's Such loss a of earning capacity, not simply the physical effects of an injury.4 ¶16 does not capacity. 4 A permanent partial disability that is not scheduled always If result the in compensation employee returns to for loss work, of the earning employee Compensation for loss of earning capacity accounts for: the effect of the injured [employee's] permanent physical and mental limitations resulting from the injury upon present and potential earnings in view of the following factors: (a) Age; (b) Education; (c) Training; (d) Previous work experience; (e) Previous earnings; (f) Present occupation and earnings; (g) Likelihood of future suitable occupational change; (h) Efforts to obtain suitable employment; (i) Willingness to make reasonable change in a residence to secure suitable employment; (j) Success of and willingness to participate in reasonable physical and vocational rehabilitation program; and (k) Other pertinent evidence. Wis. Admin. Code § DWD 80.34 (Nov. 1998). 7 No. receives compensation for loss of earning capacity employee suffers a 15 percent or more wage decrease. § 102.44(6)(a)-(b). Otherwise, an 98-1607 if the Wis. Stat. employee receives compensation only for "the physical limitations resulting from the injury." Id. Whether or not an employee suffers a 15 percent or more wage decrease, an employee still can receive compensation for loss of earning capacity if the employer terminates the employment relationship for any reason, or the employee terminates the mental limitations. ¶17 relationship because of physical or Wis. Stat. § 102.44(6)(b). Mireles presents two claims for benefits in this case. Both claims are affected by the fact that Mireles suffered an unscheduled injury followed by a scheduled injury while she worked in a production job at Ametek. FACTS ¶18 Mireles worked for Ametek from 1988 to 1993. On April 22, 1991, she injured her back at Ametek while hurriedly packing five-pound motors into boxes. four motors and "she felt Mireles lifted a box containing a snap [of] pain in her back." Mireles could not work for some months afterward and received temporary total disability benefits from April 22, 1991, until November 25, 1991. While she recovered, she underwent therapy and received injections. At the time of her injury, Mireles earned $346 per week. ¶19 She returned to work in the same department, but in June 1992 another back episode rendered her unable to work. Mireles reinjured her back when a lift truck bumped a table at 8 No. 98-1607 which she was sitting, and she was forced to jump to avoid being pinned between a pole and the table. Ametek initially refused to compensate her for temporary total disability or permanent partial disability. The parties, however, entered into a compromise agreement in September 1992 covering claims through the date of the agreement. ¶20 After the June 1992 back episode, Mireles's doctor put her on maximum lifting restrictions of 30 to 35 pounds. Mireles returned to a light duty job at Ametek in which she put tape on wires for motors. The repetitive hand movements of this task caused Mireles to develop carpal tunnel syndrome. tunnel syndrome incapacitated both of her wrists. The carpal As a result, she could no longer work, and on October 18, 1993, her right wrist injury was handled as a separate work injury. She received temporary total disability compensation from November 26, 1993, until October 15, 1994. ¶21 Mireles had surgery syndrome in her right wrist. left wrist wrist. because surgery to correct the carpal tunnel She did not have surgery on her was not successful on her right The doctor who treated her wrists assessed her partial permanent disability at three percent loss of use for her right hand and Mireles was compensated for this loss.5 placed permanent restrictions on 5 Mireles The same doctor that limited her At oral argument this court asked Mireles's counsel how much money Mireles had received for the permanent damage caused by the carpal tunnel syndrome. Counsel indicated that she had received about $1,500 for her loss. 9 No. 98-1607 lifting with her right hand to two pounds and precluded her from repetitive hand movements of any kind with either hand. ¶22 Ametek concluded that it had no work available for Mireles within these restrictions. between Ametek and Mireles The employment relationship ended after 1996, Mireles's Mireles sick leave exceeded one year. ¶23 problems At a hearing with her in hands and back testified affect her that daily. the She indicated that the surgery on her right hand did not eliminate occasional sharp pain and also did not reestablish strength in her right hand. still bothers In addition, Mireles testified that her back her. She stated that the pain in her back sometimes necessitates that she take twelve pain pills per day. She still wears a back brace daily. PROCEDURAL HISTORY ¶24 On March 29, 1995, Mireles filed an application with the Department of Industry, Labor and Human Relations (DILHR)6 to reopen the award for her unscheduled back injury. She claimed that she deserved payment for 50 to 100 percent loss of earning capacity for her back injury. The ALJ dismissed her claim. The ALJ determined that Wis. Stat. § 102.44(6)(b), which allows DWD to reopen an unscheduled injury 6 award for three different As noted above, DIHLR administered the Act before DWD was created in 1995. 10 No. 98-1607 reasons,7 would not permit Mireles to obtain a reopening of the previous award for her unscheduled back injury. In addition, the ALJ concluded that Mireles was not eligible for either a loss of earning capacity award or permanent total disability benefits based upon a combination of scheduled and unscheduled injuries. ¶25 In addressing Mireles's first argument, the ALJ dismissed her application because her situation satisfied none of the three conditions in Wis. Stat. § 102.44(6)(b). First, according to the ALJ's findings, Mireles did not receive a 15 percent or more wage reduction in her light duty position at Ametek. either Second, the ALJ indicated that Mireles did not satisfy of the other two conditions in the statute because § 102.44(6)(b) "mentions restrictions, but these are intended to be from the same work injury, not a later scheduled, work injury." ¶26 LIRC agreed with the ALJ's decision, and it adopted the findings and order as its own. memorandum opinion, finding LIRC also issued its own that under Wis. Stat. § 102.44(6)(b), "if the employment is terminated by the employer or the employe because his or her physical or mental limitations 7 Wisconsin Stat. § 102.44(6)(b) allows DWD to reopen an award for an unscheduled injury if, after returning to work, any of the following circumstances occur: (1) the employer terminates the employment relationship; or (2) the employee terminates the employment relationship because of physical or mental limitations; or (3) the employee suffers a wage loss of 15 percent or more. 11 No. 98-1607 prevent him or her from continuing such employment then loss of earning capacity must be taken into account." Nonetheless, LIRC agreed with the ALJ "that although this section of law mentions restrictions, these are intended to be from the same work injury not a later scheduled injury." LIRC concurred with the ALJ's finding that Mireles "could have continued to work within her restrictions due to her unscheduled back injury" had she not had the severe restrictions on the use of her hands. LIRC affirmed the ALJ's dismissal of Mireles's Accordingly, application because LIRC did not find "that the applicant was terminated due to her unscheduled injury." because of the Rather, Ametek terminated Mireles restrictions for her scheduled injury, a situation not covered under § 102.44(6)(b). ¶27 LIRC also addressed Mireles's claim under Wis. Stat. § 102.44(2), in which she alleged that she "suffered permanent total disability based on both the unscheduled and scheduled restrictions."8 Mireles argued that her earlier back injury caused her later acquired carpal tunnel syndrome because she never would have worked in a position requiring repetitive hand 8 Neither the ALJ's or LIRC's memorandum opinion addressed Mireles's arguments by explicitly applying Wis. Stat. § 102.44(2). Both opinions, however, did address Mireles's general argument as to the combination of her injuries, a claim that is before this court under Wis. Stat. § 102.44(2). That statutory section is the governing section for claims of permanent total disability. LIRC's opinion specifically recognized that "[i]n addition" to her claim for permanent partial disability, Mireles also claimed she "suffered permanent total disability based on both the unscheduled and scheduled restrictions." 12 No. movement without her back injury restrictions. 98-1607 LIRC dismissed her argument, concluding that she had not established a causal link between her back injury and her carpal tunnel syndrome. ¶28 basis The circuit court set aside LIRC's decision on the that the § 102.44(6)(b). agency erroneously interpreted Wis. Stat. The court of appeals reversed, addressing both of Mireles's Worker's Compensation claims. The court of appeals applied great weight deference review to LIRC's decision. STATUTORY INTERPRETATION ¶29 This case interpretation. presents The goal of a question statutory of statutory interpretation ascertain the intent of the legislature. is to Doe v. American Nat'l Red Cross, 176 Wis. 2d 610, 616, 500 N.W.2d 264 (1993). The first the step of our interpretation language of the statute. indicates the is to look at Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68 (1992). clearly process If the language of the statute legislative intent, it is our duty to apply that intent and not look beyond the statutory language. Id. at 247. Although "it is true that statutory interpretation begins the with language of established that courts must sentence or a relevant language portion in of the the not statute, look sentence, entire at but it a at statute." is also single, the role Alberte well isolated of v. the Anew Health Care Serv., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987)). 13 No. ¶30 If administer agency the a under legislature statute, we certain has consider directed the circumstances, an 98-1607 agency interpretation State ex rel. of to the Parker v. Sullivan, 184 Wis. 2d 668, 699, 517 N.W.2d 449 (1994). PERMANENT PARTIAL DISABILITY CLAIM ¶31 The first issue concerns the operation of Wis. Stat. § 102.44(6)(b). reopening clauses of of Mireles her contends unscheduled § 102.44(6)(b). that injury Under she qualifies award this under claim, for a all three Mireles seeks compensation for loss of earning capacity caused by her back injury. Ametek contends that Mireles does not qualify under the statute. In particular, Ametek maintains that Mireles does not qualify under the second clause of § 102.44(6)(b) because the physical limitations that precluded her from working for Ametek were scheduled limitations, not unscheduled limitations. Stated simply, Mireles was forced to leave her position because of her wrists, not her back. ¶32 This interpretation experience case of warrants the interpreting due weight administrative the statute, 14 deference agency. but its LIRC to the has had interpretations No. have been inconsistent.9 "appropriate deference." Due weight deference 98-1607 is the Brauneis v. LIRC, 2000 WI 69, ¶ 19, ___ Wis. 2d ___, ___N.W.2d ___. We stated in Brauneis that when an agency's statutory interpretation is accorded due weight, the agency's interpretation is not conclusive. Id. If a court finds an alternative interpretation more reasonable, it need not adopt the agency's interpretation. Here the court concludes that its alternative interpretation is not only more reasonable than LIRC's but also better fulfills the intent of the statute. ¶33 Wisconsin Stat. § 102.44(6)(b) sets forth three situations in which DWD may reopen an unscheduled injury award. Wisconsin Stat. § 102.44(6)(b) provides: (6)(b) If, during the period set forth in s. 102.17(4) the employment relationship is terminated by the employer at the time of the injury, or by the employe because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity. 9 Previously, LIRC has concluded that the physical limitations causing the end of the employment relationship need not form the basis for a claim of benefits under Wis. Stat. § 102.44(6)(b). See Althaus v. Wingra Stone Co., No. 8504455 (LIRC December 22, 1998) (ruling that, for the purposes of Wis. Stat. § 102.44(6)(b), an unscheduled physical injury is eligible for an accounting for loss of earning capacity even though the injured worker quit because of another unscheduled injury); Armstrong v. Heyde Health Sys., Inc., No. 92034936 (LIRC May 26, 1998) (explaining that "Wis. Stat. § 102.44(6)(b) does not require that the physical limitations causing loss of employment be attributable to a Chapter 102 injury"). 15 No. ¶34 98-1607 Subsection (6)(b) requires some explanation in order to address the issues in this case. First, the statute refers to a period set forth in Wis. Stat. § 102.17(4).10 This period is a 12-year period beginning at the date of injury. section is a statute of limitations. This Second, the statute uses the phrase "the employer at the time of injury" in the first clause. Wis. Stat. § 102.44(6)(b). The phrase "at the time of the injury" modifies the employer, not the termination. the statute can be understood to read: set forth in § 102.17(4) the Thus, If, during the period employment relationship is terminated by the employer for whom the employee worked at the time the employee was injured . . . the department may reopen any award and make a determination taking into account loss of earning capacity. Wis. Stat. § 102.44(6)(b). If the phrase "at the time of the injury" modified the words "is terminated," the statute of interpreting limitations statutes would we be give rendered effect to inoperative. every word When in the statute so that no part of the statute is rendered superfluous. Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100 (1997). 10 Wisconsin Stat. § 102.17(4) states: The right of an employe, the employe's legal representative or dependent to proceed under this section shall not extend beyond 12 years from the date of the injury or death or from the date that compensation, other than treatment or burial expenses, was last paid, or would have been last payable if no advancement were made. 16 No. ¶35 98-1607 Under Wis. Stat. § 102.44(6)(b), an applicant may seek to revisit a previous award if the employer at the time of the injury terminates the employment relationship. the termination is required. No reason for By contrast, the second clause in the statute, in which the employee terminates the relationship, allows an employee limitations to reopen caused the Had the relationship. only employee if to legislature physical end or the intended mental employment to place any qualifications on employer terminations, it would have created such qualifications. Thus, if an employer terminates its relationship with an employee by closing its plant or laying off workers, a previously injured employee may apply for a reopening under § 102.44(6)(b). If Ametek terminated the employment relationship with Mireles, the first clause of the statute would allow Mireles to apply for a reopening of the unscheduled injury award. ¶36 Mireles and Ametek disagree about which terminated the employment relationship in this case. disputes supported LIRC's findings by credible are and conclusive substantial as long In factual as evidence. party they Wis. are Stat. § 102.23(6); Ide v. LIRC, 224 Wis. 2d 159, 165, 589 N.W.2d 363 (1999). credible Moreover, we have a duty to search the record to find evidence that supports the agency's findings. Brakebush Bros. v. LIRC, 210 Wis. 2d 623, 630, 563 N.W.2d 512 (1997). ¶37 The record in this case is ambiguous about which party terminated the relationship. The ALJ made findings of fact in 17 No. 98-1607 his memorandum opinion, and LIRC adopted those findings as its own and issued its own memorandum opinion. Both opinions describe the end of the employment relationship in a confusing manner. The ALJ first wrote that Mireles "was terminated" by Ametek, but he later stated that Mireles "was required to leave her job at respondent." ALJ wrote that In the introduction to the opinion, the Mireles's application "allege[d] that the applicant had to leave her employment." ¶38 In its memorandum opinion, times that Mireles "was terminated." "the evidence indicates that LIRC mentioned several But LIRC also wrote that the applicant that the subsequently terminated her employment." ¶39 We conclude, therefore, present record is insufficient to classify Mireles's application under the first clause of Wis. Stat. § 102.44(6)(b). The factual findings of LIRC were not developed adequately because of the position taken by the agency. On remand to LIRC, it will be necessary to make a factual finding whether Mireles qualifies under this portion of the statute. ¶40 The parties also focused on the second clause of Wis. Stat. § 102.44(6)(b). limitations" The issue here is whether the "physical mentioned unscheduled injury. in the statute must derive from an This part of the statute allows DWD to reopen an unscheduled injury award if the employee terminates the employment mental relationship limitations employment." prevent "because his or his her continuing or Wis. Stat. § 102.44(6)(b). 18 her physical in or such No. ¶41 We conclude that the second clause of 98-1607 Wis. Stat. § 102.44(6)(b) does not require that the limitations that cause the employee to end the relationship arise from an unscheduled injury. Had the legislature wished to make such a requirement, it could have written: If, during the period set forth in s. 102.17(4) the employment relationship is terminated . . . by the employe because his or her physical or mental limitations resulting from the injury prevent his or her continuing in such employment. The legislature did not draft the statute in that manner. To give effect to the reading favored by Ametek would breach our duty to interpret statutes by their ordinary language whenever possible. indicate clause Moreover, we see nothing in Wis. Stat. § 102.44 to that of scheduled injuries § 102.44(6)(b). legislature wrote In cannot trigger particular, § 102.44(6)(a) using we the the note second that exact the phrase "resulting from the injury" added to the hypothetical statute above.11 ¶42 Ametek argues that in cases of permanent partial disability from scheduled injuries, the schedule is exclusive. 11 Wisconsin Stat. § 102.44(6)(a) states: Where an injured employe claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15% (emphasis added). 19 No. 98-1607 Such exclusivity, however, applies to the award of benefits, see Vande Zande v. DILHR, 70 Wis. 2d 1086, 1093, 236 N.W.2d (1975); Mednicoff, 54 Wis. 2d at 14, not to the reasons for termination under Wis. disability Stat. § 102.44(6)(b). benefits for statutory schedules. an Mireles injury is covered not by asking any for of the Her claim is for benefits based on an unscheduled injury. The reason for the end of the relationship, therefore, is irrelevant, as long as the termination under the second clause in the statute was caused by physical or mental limitations and not some other factor. ¶43 Ametek argues that every scheduled injury that follows an unscheduled injury will give rise to a claim for loss of earning capacity. This is true, however, only when one of the three envisioned situations actually occurs. by Wis. Stat. § 102.44(6)(b) We conclude that the statute allows a claim for loss of earning capacity in such a factual situation. Such an interpretation is not only clear from the language of the statute but also consistent with the purpose of the Act. An injured of worker in Mireles's predicament faces the task finding work in the general labor market upon termination of the employment relationship. Mireles, therefore, should not be penalized for having suffered a scheduled injury that in turn caused the end of her employment. ¶44 LIRC's and Ametek's interpretation of the second clause of Wis. Stat. § 102.44(6)(b) does not conform with the language of the statute. Here again, however, the factual record is insufficient to classify Mireles's application within 20 No. the second clause of § 102.44(6)(b). 98-1607 On remand to LIRC, it will be necessary to make a factual finding whether Mireles qualifies under this portion of the statute. ¶45 Wis. The parties also dispute whether the third clause in Stat. § 102.44(6)(b) applies to Mireles's application. That clause allows DWD to reopen an award if an employee suffers a wage loss of 15 percent or more. any other requirements other The clause does not mention than the wage loss. When considering § 102.44(6) as a whole, we conclude that Mireles does not qualify under this portion of the statute. ¶46 Wisconsin Stat. § 102.44(6)(a) governs situations in which an employee who suffers an unscheduled injury returns to work for the "employer for whom he or she worked at the time of the injury." recover for In that part of the statute, an employee cannot loss of earning capacity unless the unscheduled injury causes a wage loss of 15 percent or more. Id. Like § 102.44(6)(a), the first two clauses of § 102.44(6)(b) apply only to the employer for whom the injured party worked when the injury occurred. Reading § 102.44(6) as a whole, we conclude that the last clause of § 102.44(6)(b) operates only when the employee continues to work for the employer at the time of the injury and suffers a wage loss of 15 percent or more. clause of mentioned § 102.44(6)(b), in therefore, § 102.44(6)(a), namely refers a wage to The last the situation reduction of 15 percent or more at the employer for whom the employee worked at the time of injury. 21 No. ¶47 If the wage loss provision of 98-1607 Wis. Stat. § 102.44(6)(b) were to operate after the end of the employment relationship, the first two provisions of § 102.44(6)(b) would be superfluous. An injured worker always could qualify for a reopening because any time the employment relationship ended, the employee would have suffered a wage loss of 15 percent or more. Mireles does statute because the not qualify employment under this relationship portion ended of the before she experienced a 15 percent wage loss. ¶48 LIRC's memorandum opinion contends that public policy concerns caution against our holding today. LIRC agreed with the ALJ's statement that "it would be a great disincentive for employers to rehire anyone with a non-scheduled injury as a later, minor, scheduled injury could cause unanticipated greater liability. It could be cheaper to pay the penalty to rehire than face the greater liability." Five factors caution against LIRC's interpretation. ¶49 First, the language of the statute allows an applicant to claim he or she deserves a reopening of an award even if an unscheduled injury is followed by a scheduled injury, and the scheduled injury causes the end of the employment relationship. If employers workers in choose to Mireles's face penalties situation, it rather will than rehire become the responsibility of the legislature and the designated agency to design incentives to serve the overall purpose of the Act. ¶50 Second, in many cases employers will have a strong incentive to rehire workers with unscheduled injuries. 22 When an No. employer accommodates an injured worker work with 98-1607 within restrictions, the employer gains the work of the employee, as opposed merely to paying disability benefits to a non-worker. After all, had Ametek refused to rehire Mireles, she could have brought a claim for permanent partial disability benefits for her back injury. Thus, Ametek faced no greater liability for Mireles's unscheduled injury after her scheduled injury than it would have confronted had it refused to rehire her initially. In addition, the employer would avoid penalties by rehiring such a worker. ¶51 Third, even under our holding today, DWD and LIRC still maintain discretion to deny applications made under Wis. Stat. § 102.44(6)(b). The legislature wrote this section in a way that gives the agency administering the law the option of fashioning policies. ¶52 Fourth, the ALJ, LIRC, and Ametek have expressed concerns about a breakdown in the exclusiveness of scheduled benefits. However, any additional compensation awarded to Mireles would account only for that portion of her disability caused by the unscheduled injury. Any award would be subject to the cases apportionment disability. guidelines in of permanent partial See Vande Zande, 70 Wis. 2d at 1093; Langhus v. LIRC, 206 Wis. 2d 494, 505, 557 N.W.2d 450 (Ct. App. 1996). ¶53 Finally, we find it likely that the legislature intended that an injured worker such as Mireles would receive compensation for her unscheduled injury. In numerous instances, the Act provides compensation for cases of multiple injuries. 23 No. See Wis. Stat. §§ 102.44(2), 102.53, legislature enacted § 102.44(6)(b), it 102.54. must When have the occurrence of a situation like the one here. 98-1607 the contemplated Otherwise, it could have written § (6)(b) the same as § 6(a), which explicitly applies to "the physical limitations resulting from the injury." The legislative intent evinces a concern about an injured worker's ability to find suitable employment after injury and a subsequent change in the employment relationship. See Wis. Admin. Code § DWD 80.34 (July, 1996) (considering "[l]ikelihood of future suitable occupational change" in evaluating loss of earning capacity). PERMANENT TOTAL DISABILITY CLAIM ¶54 The second issue concerns the interpretation of Wis. Stat. § 102.44(2). This statute grants lifetime benefits to workers who are totally and permanently disabled. Mireles seeks benefits under § 102.44(2) based upon a combination of scheduled and unscheduled injuries. Ametek argues that an unscheduled injury may not be combined with a scheduled injury under this section because scheduled injuries are covered exclusively under three other sections of the Act. ¶55 As with the first issue, we LIRC's interpretation only due weight. conclude that we give The plain language of Wis. Stat. § 102.44(2), when considered in concert with all of § 102.44 and other statutes referred to in the text of § 102.44, dictates that Mireles may qualify for total permanent disability benefits. Furthermore, LIRC's 24 memorandum opinion did not No. 98-1607 develop significant reasoning about this claim12 and LIRC took a contrary position in another case, Langhus, 206 Wis. 2d 494. ¶56 Wisconsin Stat. § 102.44(2) must be read in context. Wisconsin Stat. § 102.43, titled "Weekly Compensation Schedule," sets forth section instructions about covers total, the partial, payment of temporary, benefits. and The permanent disabilities. ¶57 Wisconsin Stat. § 102.44 preceding section with limitations. modifies the immediately Subsection (2) of § 102.44 provides: In case of permanent total disability aggregate indemnity shall be weekly indemnity for the period that the employe may live. Total impairment for industrial use of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department shall find the facts. ¶58 Subsection (2) governs the permanent total disability indemnity. The subsection lists several combinations of scheduled injuries that constitute permanent total disability. The text concludes: "This enumeration is not exclusive, but in 12 LIRC's memorandum opinion focused on the argument by Mireles that her back injury caused her wrist injury because she never would have worked in the position that caused her wrist injury "but for" her back injury. See Mireles v. Ametek Lamb Electric, No. 91027213 at 4-5 (LIRC April 25, 1997). Thus, LIRC did not address Mireles's claim in accord with its position in Langhus v. LIRC, 206 Wis. 2d 494, 505, 557 N.W.2d 450 (Ct. App. 1996). 25 No. other cases the department shall find the facts." 98-1607 Wis. Stat. § 102.44(2). ¶59 The question we must decide is whether the "other cases" of permanent total disability may include a combination of scheduled and unscheduled injuries. Ametek contends that the combination of scheduled and unscheduled injuries suffered by Mireles may § 102.44(2). not give rise to a claim under Wis. Stat. Ametek bases its position on Langhus, 206 Wis. 2d at 505-06, which discussed the exclusionary reach of Wis. Stat. § 102.44(4). permanent Section disability 102.44(4) is covered states by ss. that 102.52, "[w]here the 102.53, and 102.55, such sections shall govern." ¶60 examined Wisconsin Stat. §§ 102.52, 102.53, and 102.55 must be in turn. Section 102.52 is the "Permanent partial disability schedule."13 This schedule contains the full list of scheduled Mireles's disability injuries. is not covered by claim for § 102.52 permanent because one total of her injuriesher back injuryis not part of the schedule. ¶61 Section variations." Its 102.53 relates introductory 13 clause to "Multiple begins: "In injury case an The title of Wis. Stat. § 102.52 supports our reading of the Act. "Although the title is not part of the statute it may be persuasive of the interpretation to be given the statute." Pure Milk Prods. Coop. v. National Farmers Org., 64 Wis. 2d 241, 253, 219 N.W.2d 564 (1974). The title of a statute cannot defeat the language of the law, but it is persuasive evidence of a statutory interpretation. Id. Section 102.52 is titled "Permanent partial disability schedule" (emphasis added). The title, therefore, further evinces the legislature's intent that § 102.52 applies only in cases of permanent partial disability. 26 No. 98-1607 injury causes more than one permanent disability specified in ss. 102.44(3), 102.52, and 102.55." and 102.55 deal exclusively Referenced sections 102.52 with scheduled injuries and combinations of scheduled injuries. Section 102.44(3) pertains to "permanent partial disability." Because Mireles's claim is for permanent total disability, not permanent disability, Wis. Stat. § 102.44(3) does not apply. partial Mireles's claim for permanent total disability is not covered by § 102.53. ¶62 back Section 102.55, to § 102.52 and schedule." "Application speaks to of injuries schedules," "specified refers in this Thus, § 102.55 does not cover Mireles's permanent total disability claim. ¶63 We conclude that Wis. Stat. §§ 102.52, 102.53, and 102.55 do not cover a claim for permanent total disability based on a combination of scheduled and unscheduled injuries. In Langhus, the court of appeals reached the same conclusion when it observed: We note that LIRC's interpretation does not preclude a claimant who can prove total disability, stemming from both scheduled and unscheduled injuries, from receiving lifetime benefits. Section 102.44(2), Stats., specifically provides that certain combinations of scheduled injuries are deemed to constitute permanent total disability. In other situations, DWD is directed "to find the facts." There is no reason, therefore, that a claimant with both scheduled and unscheduled injuries could not establish facts that would allow LIRC to award benefits for permanent total disability under § 102.44(2). The burden of making that showing, however, rests on the claimant. Langhus, 206 Wis. 2d at 505 n.9. 27 No. ¶64 This conclusion is not undermined by two 98-1607 previous decisions, Mednicoff, 54 Wis. 2d 7, and Vande Zande, 70 Wis. 2d 1086. In Mednicoff, this court confronted the issue of whether scheduled injuries could form the basis for a loss of earning capacity claim. Mednicoff, 54 Wis. 2d at 14. The applicant in Mednicoff suffered from a permanent partial disability, based on a combination of scheduled injuries. Id. at 11. She claimed agency error because the trier of fact did not consider her Id. at 11-12. claim for loss of earning capacity. This court determined that the applicant could not receive compensation for loss of earning capacity because loss of earning capacity is inherent for injuries in the schedule. found that only the specific Id. at 12. enumerated The court combinations of scheduled injuries qualified under Wis. Stat. § 102.44(2) and that "all other cases of multiple scheduled or relative injuries are to be compensated according to the provisions of § 102.53." Id. at 14. of The court's holding did not preclude a combination scheduled and unscheduled injuries constituting permanent total disability. ¶65 Vande Zande, involving multiple disability. sense of headaches, 70 injuries 2d at amounting 1086, was to permanent a another case partial The applicant sustained "a skull fracture, loss of taste and dizziness, smell, and hearing in his left ear." applicant Wis. 20 percent facial vertigo, paralysis, and Id. at 1091. permanent percent loss of The agency awarded the partial scheduled award for deafness of 55 weeks. 28 100 intermittent disability and Id. at 1091-92. a The No. 98-1607 applicant contended that the deafness caused the other symptoms and that he deserved an award of 40 percent permanent partial disability. Id. at 1091. not apply to his case. He asserted that the schedule should Id. at 1091. We disagreed and ruled that the administrative agency correctly applied the schedule to the applicant's situation. ¶66 language Both of disability Mednicoff Wis. is Stat. covered Vande Zande, 70 Wis. 2d at 1093. and Vande Zande § 102.44(4) by Wis. affirm that Stat. 102.55, such sections shall govern. the where the §§ 102.52, explicit permanent 102.53, and Wis. Stat. § 102.44(4). Moreover, "in no case shall the percentage of permanent total disability be taken as more than 100 percent." Id. Nonetheless, these cases do not control a claim of permanent total disability not covered by the three sections. ¶67 Langhus makes the point that eligibility to make a claim and proof of a claim are different. In Langhus, the applicant claimed permanent total disability. Langhus injured his 497, knee at work, Langhus, governed by the schedule. 206 Wis. 2d at Wis. Stat. § 102.52. an injury Later, Langhus reinjured his knee and shoulder outside of work. Id. Langhus subsequently developed an unscheduled back injury as a result of a limp from the knee injury. Id. Langhus claimed he suffered total and permanent disability as a result of the back, leg, and shoulder injuries. ¶68 LIRC Id. denied Langhus's claim for permanent total disability benefits because he did not demonstrate what portion of his disability could be attributed to his back injury. 29 Id. No. at 506. 98-1607 According to the court of appeals, LIRC did not contend that Langhus could not qualify for permanent total disability benefits under Wis. Stat. § 102.44(2). Id. at 505-06. The court of appeals found "that LIRC's interpretation [did] not preclude a claimant who can prove total disability, stemming from both scheduled and unscheduled injuries, from lifetime benefits [under Wis. Stat. § 102.44(2)]." Wis. 2d at 505 n.9. receiving Langhus, 206 Presumably, LIRC wanted Langhus to show that his disability was caused in part by an unscheduled injury, so that compensation for loss of earning capacity was not awarded for an injury caused either significantly or wholly by a Id. at 505-06. scheduled injury. "LIRC did not exceed its authority in placing the burden on Langhus to prove that an ascertainable portion of his total disability was attributable to other than a scheduled injury."14 ¶69 Our exclusiveness partial holding of today scheduled benefits Langhus, in cases absolute of permanent This guidelines Wis. 2d the Zande, 70 Wis. 2d at 1093; Mednicoff, 54 Wis. 2d at 14. apportionment 206 affect Vande the See not 505; includes disability. does Id. at 506. for at permanent partial disability cases from Vande Zande, 70 Wis. 2d at 1091-93, and Hagen v. LIRC, 210 Wis. 2d 12, 23, 563 N.W.2d 454 (1997). An injured worker with a permanent partial disability attributable to both a scheduled and unscheduled injury still will be unable 14 As noted in Mireles's Reply apportionment is not before the court. 30 Brief, the issue of No. 98-1607 to recover beyond the schedule limits for that portion of the disability attributable to the scheduled injury. Hagen, 210 Wis. 2d at 23. ¶70 Our interpretation of Wis. Stat. § 102.44(6)(b) and 102.44(2) does not guarantee Mireles or any applicant additional benefits. Our interpretation merely permits applicants in the unusual circumstances here to state claims that the department may consider and that the applicants must prove. Ultimately, the department finds the facts. CONCLUSION ¶71 We find that the language of Wis. Stat. § 102.44(6)(b) allows the department to reopen a Worker's Compensation award to account for loss of earning capacity from an unscheduled injury, even if a scheduled injury employment relationship. for permanent total causes the termination of an We also find that Mireles can qualify disability benefits under Wis. Stat. § 102.44(2) based upon the combination of her injuries, if she can prove remand such for disability further agency to the department. proceedings We consistent therefore with this opinion. By the Court. The decision reversed and the cause remanded. 31 of the court of appeals is No. 1 98-1607
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