Janet Mueller v. Labor and Industry Review Commission

2019 WI App 50

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP707

Complete Title of Case:

JANET MUELLER,

PETITIONER-APPELLANT,

V.

LABOR AND INDUSTRY REVIEW COMMISSION, ASHLEY FURNITURE
INDUSTRIES, TWIN CITY FIRE INSURANCE COMPANY
AND GALLAGHER BASSETT SERVICES, INC.,

RESPONDENTS-RESPONDENTS.

Opinion Filed: August 27, 2019
Submitted on Briefs: December 11, 2018
Oral Argument:

JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the
briefs of Matthew E. Yde of Yde Law Firm, S.C., Wausau.

Respondent
ATTORNEYS: On behalf of the respondent-respondent, Labor and Industry Review
Commission, the cause was submitted on the brief of Brad D. Schimel,
attorney general, and Jennifer L. Vandermeuse, assistant attorney general.

On behalf of the respondents-respondents, Ashley Furniture, Twin City
Fire Insurance Company and Gallagher Bassett Services, Inc., the cause
was submitted on the brief of Lisa F. Kinney of Cousineau, Waldhauser
& Kieselbach, P.A., Ironwood, Michigan.

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2019 WI App 50

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 27, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP707 Cir. Ct. No. 2017CV120

STATE OF WISCONSIN IN COURT OF APPEALS

JANET MUELLER,

PETITIONER-APPELLANT,

V.

LABOR AND INDUSTRY REVIEW COMMISSION, ASHLEY FURNITURE
INDUSTRIES, TWIN CITY FIRE INSURANCE COMPANY
AND GALLAGHER BASSETT SERVICES, INC.,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Trempealeau County:
RIAN W. RADTKE, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Janet Mueller appeals a circuit court order affirming a
decision by the Labor and Industry Review Commission (the Commission), which
dismissed Mueller’s application for worker’s compensation temporary disability
No. 2018AP707

benefits. Mueller argues the Commission erred by concluding that Mueller’s
voluntary retirement from her employment precluded her from establishing that
she suffered an actual wage loss, and that she therefore was not entitled to receive
disability benefits under WIS. STAT. § 102.43 (2017-18).1 In the alternative,
Mueller argues that even if her voluntary retirement initially prevented her from
showing an actual wage loss, the Commission erred by concluding that she failed
to show she suffered an actual wage loss when she tried—and eventually
succeeded—to re-enter the labor market.

¶2 We conclude that under WIS. STAT. § 102.43, an employee must
show that he or she sustained an actual wage loss attributable to his or her injury in
order to be entitled to temporary disability benefits. Applying that standard, we
determine that the Commission did not err in dismissing Mueller’s claim because,
as the Commission found, Mueller voluntarily retired for reasons entirely
unrelated to her injury, and her subsequent attempts to re-enter the labor market
were not impaired by her work-related injury. Therefore, any wage loss Mueller
suffered is solely attributable to her own choices, and not to her work-related
injury. Consequently, we affirm.

BACKGROUND

¶3 In 1997, Mueller began working for Ashley Furniture, a company
that manufactures and sells home furnishings. She worked on Ashley’s furniture

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP707

“finishing line,” in a production position. This position required her to lift heavy
objects and involved the repetitive use of both upper extremities.

¶4 On October 17, 2013, Mueller injured her right arm and shoulder
while she and another employee were lifting a headboard that weighed
approximately 100 pounds. As a result of this injury, Mueller was placed on
full-time light duty. While she was on light duty, Ashley paid Mueller $311 per
week in temporary partial disability (TPD) benefits. That amount represented the
wage loss Mueller suffered due to her light duty position paying her less than her
regular duty position.

¶5 Over four months later, Mueller submitted to Ashley a notice of
resignation form. In response to the form’s prompt as to the reason for her
resignation, Mueller wrote: “Retiring.” Mueller remained on light duty—and
consequently received TPD benefits—until her retirement became effective on
March 14, 2014.

¶6 Approximately one month after her retirement, Mueller realized that
she was no longer receiving TPD benefit payments. Accordingly, she contacted
Amy Neubauer, Ashley’s human resources manager, in an attempt to reinstate her
employment. When Mueller’s reinstatement request was denied, she submitted an
employment application for a vacant position at Ashley. Ultimately, Ashley did
not select Mueller to fill this position.

¶7 On June 5, 2014, Mueller underwent surgery to repair her right
rotator cuff and biceps tendon. She reached an end of healing exactly one year

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later.2 As a result of this surgery, Ashley initially conceded Mueller suffered a
five percent permanent partial disability (PPD), as compared to an amputation of
the right shoulder, and paid her that benefit. An additional three percent PPD was
then assessed by Ashley’s independent medical examiner, which Ashley also paid
to Mueller. In addition, Ashley paid all of Mueller’s medical treatment bills and
medical mileage. None of those benefit payments are contested on appeal.

¶8 In January 2015, while still in her healing period, Mueller secured
part-time employment at the Sunflower Cafe. In her new position, Mueller
worked six to fourteen hours per week doing “odds and ends,” such as washing
dishes and cooking.

¶9 Mueller subsequently submitted a hearing application to the
Department of Workforce Development, seeking temporary total disability (TTD)
benefits from the date of her surgery on June 5, 2014, until her end of healing on
June 5, 2015. Mueller’s request for a hearing was granted. At her hearing,
Mueller clarified that she was also seeking TPD benefits from her retirement date
on March 14, 2014, until her date of surgery on June 5, 2014.

¶10 At the hearing, Mueller testified that she had been considering
retirement prior to her injury because she “wasn’t really getting along with my
girls that I worked with.” She also testified that no one in Ashley’s worker’s
compensation department informed her that her retirement could have an effect on

2
Mueller’s end-of-healing date was found, as a matter of historical fact, by the
administrative law judge who denied her temporary disability claim. On appeal, neither party
disputes this finding, and we will not address the issue further.

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No. 2018AP707

her temporary disability benefits, but that if they had she “probably” would not
have retired.

¶11 The administrative law judge (ALJ) ultimately dismissed Mueller’s
claims with prejudice, based upon the finding that Mueller “did not retire because
of her work injury.” In addition, the ALJ found that Mueller was “not a good
historian; neither was she a credible witness.”

¶12 Mueller appealed the ALJ’s decision to the Commission, which
affirmed. The Commission determined, in relevant part, that the “ALJ properly
found that the applicant voluntarily retired for reasons unrelated to her work
injury.”

¶13 Mueller sought judicial review of the Commission’s decision. The
circuit court affirmed the Commission’s decision “to the extent it denie[d]
[Mueller’s] claim for [TPD] benefits for the period of March 14, 2014 to June 5,
2014.” In doing so, the court determined that “the findings of the Commission
clearly established Ms. Mueller voluntarily retired for reasons unrelated to her
work injury.” Mueller did not appeal that portion of the court’s decision.

¶14 As to the Commission’s decision regarding Mueller’s TTD benefits
claim for the period from June 5, 2014, to June 5, 2015, the circuit court remanded
the matter for further proceedings. Specifically, the court directed the
Commission “to consider and determine” whether Mueller re-entered the
workforce following her retirement and, if so, whether her return entitled her to
temporary disability benefits.

¶15 On remand, the Commission found that Mueller’s part-time
employment at the cafe showed Mueller “returned to the labor force in a limited

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No. 2018AP707

fashion” during her healing period. The Commission also found that Mueller
“could work full time … if she wished, but has chosen to work part time and not to
look for work elsewhere.” Based upon these findings, the Commission concluded
Mueller’s part-time employment was not “sufficient to establish an actual wage
loss due to her injury.” The Commission reasoned that if Mueller was “actively
looking for full-time work elsewhere, or wanted to work more hours than she
worked at Sunflower Cafe but could not, she might have been able to establish an
actual wage loss supporting an award for temporary partial
disability. … However, no such showing has been made in this case.”

¶16 Mueller again sought judicial review. The circuit court affirmed the
Commission’s decision. Mueller now appeals.

STANDARD OF REVIEW

¶17 On appeal, we review the Commission’s factual findings and legal
conclusions, rather than those of the circuit court. Emmpak Foods, Inc. v. LIRC,
2007 WI App 164, ¶3, 303 Wis. 2d 771, 737 N.W.2d 60. We defer to the
Commission’s findings of fact if they are supported by credible and substantial
evidence. WIS. STAT. § 102.23(6). However, our supreme court recently ended
the practice of deferring to an administrative agency’s conclusions of law. Tetra
Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶3, 84, 382 Wis. 2d 496, 914 N.W.2d 21.
Accordingly, we review the Commission’s legal conclusions de novo. Id., ¶84.
Still, in evaluating the persuasiveness of an administrative agency’s arguments, we
give “due weight” to the agency’s experience, technical competence, and
specialized knowledge. Id., ¶3.

¶18 This case requires us to engage in statutory interpretation. To do so,
we begin with the statutory language. Flug v. LIRC, 2017 WI 72, ¶25, 376

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No. 2018AP707

Wis. 2d 571, 898 N.W.2d 91. We interpret that language “in the context in which
it is used; not in isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” Id. When this process produces a plain, clear meaning, we
go no further. Id.

DISCUSSION

¶19 As indicated, Mueller argues on appeal that the Commission erred
by concluding that Mueller’s voluntary retirement precluded her from establishing
that she suffered an actual wage loss, and that she therefore was not entitled to
receive disability benefits under WIS. STAT. § 102.43. In the alternative, she
argues that even if her voluntary retirement initially prevented her from showing
an actual wage loss, the Commission erred by concluding that she failed to show
she suffered an actual wage loss when she tried—and eventually succeeded—to
re-enter the labor market. We discuss each argument in turn.

I. Voluntary retirement

¶20 Mueller first argues the Commission erred in denying her claim
because there “is no statutory authority” for terminating an employee’s temporary
disability payments on the basis that the employee has voluntarily retired. In
support, she observes that “WIS. STAT. § 102.43 states nothing about losing
benefits during a healing period due to termination of employment unless the
termination involved” one of the specific exceptions set forth in WIS. STAT.
§ 102.43(9)(a)-(e).

¶21 Before addressing the specifics of Mueller’s argument, we first
discuss the context in which WIS. STAT. § 102.43(9) appears in order to properly

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No. 2018AP707

inform our inquiry. See Flug, 376 Wis. 2d 571, ¶28. Section 102.43(9) is part of
Wisconsin’s worker’s compensation program. See WIS. STAT. ch. 102. This
program is “a legislatively enacted compromise designed to bring employers and
employees together in a mutually beneficial scheme of guaranteeing benefits in the
event of work-related injury [or] disease.” Flug, 376 Wis. 2d 571, ¶26. “Broadly
speaking, an employee is eligible for compensation under this program if he [or
she] sustains an injury that arises out of his [or her] employment” Id., ¶27.

¶22 One form of compensation for which the worker’s compensation
program affords eligible employees is temporary disability benefits.3 Emmpak
Foods, 303 Wis. 2d 771, ¶9. As we explained in Emmpak Foods, the rationale for
awarding an employee temporary disability benefits is set forth in WIS. STAT.
§ 102.43(1) and (2): “If, during the time the employee is disabled by injury, he or
she sustains a wage loss, he or she is eligible for temporary disability benefits.”
Emmpak Foods, 303 Wis. 2d 771, ¶9. Stated differently, the “purpose of
worker’s compensation disability benefits is to compensate employees who have
lost the ability to work, temporarily or permanently, due to a work-related injury.”
Brakebush Bros. v. LIRC, 210 Wis. 2d 623, 636, 563 N.W.2d 512 (1997).

¶23 With this context in mind, we now turn to Mueller’s argument
regarding WIS. STAT. § 102.43(9). Section 102.43(9) provides that “[t]emporary
disability, during which compensation shall be payable for loss of earnings, shall
include the period during which an employee could return to a restricted type of
work during the healing period, unless any of the following apply.” The statute

3
The parties agree that the five conditions set forth in WIS. STAT. § 102.03(1)(a)-(e),
which determine when liability for worker’s compensation exists, were satisfied in this case.

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No. 2018AP707

then provides five specific exceptions. See § 102.43(9)(a)-(e). The parties agree
that none of those exceptions apply here, as they do not concern voluntary
retirement.

¶24 Mueller argues that this lack of a specific exception for voluntary
retirement in the statute shows that the Commission erred in denying her claim
because the “legislature could have easily indicated … that an employee who
retires or voluntarily terminates his/her employment is no longer entitled to
temporary benefits. The legislature did not do so.”

¶25 We are not persuaded by Mueller’s argument because it ignores the
fact that, to be eligible for temporary disability in the first instance, an employee
must sustain a wage loss. See Emmpak Foods, 303 Wis. 2d 771, ¶9. And,
because the purpose of the worker’s compensation program is to compensate
employees for a loss of income due to their inability to work as a result of their
work-related injury, it necessarily follows that to be a compensable wage loss for
worker’s compensation purposes, the wage loss must be attributable to a work-
related injury. Simply put, an employee who retires for reasons entirely unrelated
to his or her injury cannot make such a showing because the employee’s wage loss
was caused by the employee’s choice to voluntarily retire, not by his or her work-
related injury.

¶26 Our conclusion that an employee must sustain a wage loss
attributable to his or her work-related injury in order to receive temporary
disability benefits is in accord with our supreme court’s decision in Brakebush
Bros. In that case, an employee was suspended and then terminated during his
healing period for making false representations about his work-related injury.
Brakebush Bros., 210 Wis. 2d at 625. The supreme court determined that

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regardless of whether the employer had good cause to terminate the employee, “an
injured employee who has been terminated is nonetheless entitled to disability
benefits because the employee continues to be limited by the work-related injury.
It is the injury, not the termination, that is the cause of the employee’s economic
loss.” Id. at 635. In other words, unlike here, worker’s compensation benefits
were still due to the employee because the wage loss the employee suffered
post-termination was attributable, at least in part, to his work-related injury, not
simply the fact that he was terminated.

¶27 Indeed, in a previous, unpublished decision involving an employee’s
post-retirement temporary disability claim, we decided that because the
employee’s decision to retire was partially motivated by his work-related injury,
the employee was eligible for TTD benefits. See Tower Auto. Milwaukee, LLC v.
Samphere, No. 2009AP1043, unpublished slip op. ¶¶37-38 (WI App Feb. 9,
2010). Those are not the facts of Mueller’s case. Rather, here the ALJ explicitly
found as a matter of historical fact that Mueller “did not retire because of her work
injury.” The Commission then adopted that finding, stating “the ALJ properly
found that the applicant voluntarily retired for reasons unrelated to her work
injury.” Notably, Mueller does not contest that finding on appeal.

II. Labor market re-entry

¶28 Mueller next argues that even if her voluntary retirement initially
precluded her from showing she suffered an actual wage loss—thereby making her
ineligible for temporary disability benefits—her subsequent attempts to re-enter
the job market were sufficient to show an actual wage loss. Mueller’s argument in
this regard is two-fold. First, she contends that her attempts to be reinstated or
rehired at Ashley were sufficient to show that she re-entered the labor market.

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Second, she contends that her hiring at the cafe “clearly” showed that she “did not
retire from gainful employment completely.”

¶29 Both of Mueller’s arguments miss the mark for the same reason as
her claim regarding her voluntary retirement. Namely, Mueller fails to recognize
that, regardless of whether she returned—or attempted to return—to the labor
market, she is entitled to recover temporary disability benefits only if she can
show she suffered an actual wage loss attributable to her work-related injury.

¶30 Relying on Knight v. Feddick Ford Inc., No. 2000-012954, 2004
WL437131 (LIRC Feb. 12, 2004), Mueller asserts that if an employee does “not
retire from gainful employment completely,” then the employee can show that he
or she has suffered an actual wage loss. Based on this premise, she contends that
“[i]f a ‘retired’ employee is working a part-time job, or looking for part-time [or
full-time] employment, he/she should qualify for temporary disability benefits for
subsequent periods of temporary disability that begin after retirement.”

¶31 However, Mueller’s case differs from Knight in an important
respect. In Knight, a mechanic suffered a compensable knee injury while working
for his employer. Id. at *3. He subsequently retired from his position with his
employer, but he continued to do auto-repair work at his home on a contract basis.
Id. at *4. Eventually, he experienced a knee injury at home that was worse than
his previous injury. Id. Applying the subsequent nonwork injury doctrine, an ALJ
determined that this second injury was compensable. Id. at *6. As relevant here,
the ALJ determined that the claimant also proved a total wage loss because he
“was unable to do any work during the claimed TTD period because of disability
in his knee.” Id. at *8. The Commission agreed with the ALJ’s decision, and it
affirmed. Id. at *1.

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¶32 The critical distinction between this case and Knight is that, here,
Mueller points to no evidence showing that her attempts to re-enter the labor
market were affected in any way by her work-related injury, whereas the claimant
in Knight showed that he was unable to work because of his compensable injury.
See id. at *8. As explained in Brakebush Bros., post-termination disability claims
are compensable when it “is the injury, not the termination, that is the cause of the
employee’s economic loss.” Brakebush Bros., 210 Wis. 2d at 635.

¶33 Here, Mueller points to no evidence that her subsequent attempts to
regain employment at Ashley were impaired in any way by her injury. Instead,
she offers the following unsupported speculation: “Ashley saw no value in hiring
back a former employee with a 10-pound lifting restriction who was on the path to
a right rotator cuff and biceps tendon repair surgery. If Ashley would not hire
Mueller back, what full-time employer would?”

¶34 As an initial matter, this argument falters because it ignores the
ALJ’s finding of fact, which was adopted by the Commission, that the reason
Ashley did not re-hire Mueller was because she was “not the top applicant
competing for the available vacancy.” Mueller does not argue that finding was
unsupported by credible and substantial evidence, and so we must defer to that
finding. See WIS. STAT. § 102.23(6). In any event, “in a worker’s compensation
hearing, the employee has the burden of proving the elements of his or her claim,
and on appeal he or she also has the burden to show that [the Commission’s]
decision should be overturned.” Kowalchuk v. LIRC, 2000 WI App 85, ¶8, 234
Wis. 2d 203, 610 N.W.2d 122. Mere speculation on Mueller’s part that Ashley

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saw “no value” in hiring her due to her injury falls far short of satisfying her
burden to show that her work-related injury contributed to her inability to regain a
position working for Ashley.4

¶35 Likewise, Mueller did not prove that her work-related injury
contributed to any economic loss associated with her part-time employment at the
cafe. To the contrary, the Commission made a finding that it was Mueller’s own
choice—not any injury-related concern—that dictated her workload at the cafe.
Specifically, the Commission determined that Mueller:

chose to limit her hours in that employment, that she had no
wish to work more hours, that she was not working
elsewhere, and that she considered the Sunflower Cafe
employment an ideal “retirement job.” Had [Mueller]
testified she was actively looking for full-time work
elsewhere, or wanted to work more hours than worked at
Sunflower Cafe but could not, she might have been able to
establish an actual wage loss supporting an award for
temporary partial disability.

¶36 On appeal, Mueller makes a cursory argument that this finding was
not supported by credible and substantial evidence because: (1) the Commission
did not examine pay slips representative of Mueller’s “normal schedule” at the

4
We note that the ALJ’s decision states that Mueller’s request for reinstatement “was
not approved,” without making a specific finding as to why that request was not approved. On
appeal, Mueller does not provide any citation to the record regarding the reason Ashley refused to
reinstate her to her position, nor does she develop any independent argument regarding the reason

for the denial of her reinstatement request, as opposed to the denial of her re-application for the
new position. Therefore, as with her re-application argument, we conclude that—to the extent
Mueller intends to argue that the denial of her reinstatement request entitled her to temporary
disability benefits—she has failed to meet her burden to show the Commission’s decision should
be overturned. See Kowalchuk v. LIRC, 2000 WI App 85, ¶8, 234 Wis. 2d 203, 610 N.W.2d
122.

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Sunflower Cafe; and (2) “there is no evidence in the record that Sunrise [sic] Café
has any full-time employees or full-time positions.” In so arguing, Mueller
ignores her own testimony, which provided more than ample support for the
Commission’s conclusion. Specifically, Mueller provided the following testimony
at the administrative hearing, in response to questioning from Ashley’s counsel:

Q So is there anything preventing you from working
full-time or 40 hours per week at the cafe?

A No.

Q There’s nothing. Okay. You have chosen to work
part-time at the Sunflower Cafe, correct?

A Right.

Q And have you applied for a second job to
supplement Sunflower Cafe?

A No.

Q Do you have any intention of doing that?

A No.

Q Do you have any intention of increasing your hours
at the Sunflower Cafe?

A If she needs me. Otherwise, no.

Q It’s pretty flexible?

A Right.

Q You like it that way?

A Right.

Q It’s a great retirement job?

A Right.

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Consequently, we defer to the Commission’s finding that Mueller did not suffer
any actual wage loss attributable to her work-related injury while working at the
cafe. Therefore, Mueller’s claim is not compensable under WIS. STAT. § 102.43.

¶37 In summary, we conclude that an employee seeking temporary
disability benefits under WIS. STAT. § 102.43 must show that he or she has
suffered an actual wage loss attributable to a work-related injury. In this case,
Mueller failed to do so because: (1) she voluntarily retired from her employment
for reasons entirely unrelated to her work-related injury; and (2) she provided no
evidence that her subsequent attempts to return to the workforce were impaired in
any way by her injury. Accordingly, we affirm.

By the Court.—Order affirmed.

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