Benjean F. Lara v. City of Milwaukee

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.
March 18, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP1685 Cir. Ct. No. 2023CV7107

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN EX REL. BENJEAN F. LARA,

PETITIONER-APPELLANT,

V.

CITY OF MILWAUKEE, CITY OF MILWAUKEE ANNUITY AND PENSION
BOARD AND MILWAUKEE EMPLOYEES’ RETIREMENT SYSTEM,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
THOMAS J. McADAMS, Judge. Affirmed.

Before White, C.J., Colón, P.J., and Geenen, J.

¶1 WHITE, C.J. Benjean F. Lara appeals from the circuit court order
affirming, under certiorari review, the decision by the City of Milwaukee
Annuity & Pension Board to deny his application for Duty Disability Retirement
No. 2024AP1685

(DDR) benefits. Lara argues that the Pension Board, and its co-respondents, the
City of Milwaukee and the Employees’ Retirement System of the City of
Milwaukee (ERS), improperly served as the decision maker for both the initial and
final determination of his application for benefits, failed to enforce the decision
made by the independent hearing examiner (IHE); violated statutory time limits;
improperly returned the case to the IHE for reassessment; and unreasonably relied
on inconsistent medical reports that did not constitute substantial evidence. Upon
review, we affirm.

BACKGROUND

¶2 Lara was employed as a Milwaukee Police Department (MPD)
officer for 17 years when he was injured from hitting his head while working at an
MPD facility on September 23, 2019. Lara went to the emergency room after the
fall and then sought care for a concussion. After the injury, Lara was evaluated by
numerous medical professionals including specialists in physical medicine;
physical, vision, and speech therapy; rehabilitation; orthopedics; and counseling.
Shortly after his injury, Lara began seeing Dr. Gerald Nora, a physician
specializing in brain injury rehabilitation, who provided ongoing care and
treatment for a “mild traumatic brain injury [from the] work-related incident.”

¶3 Lara pursued a worker’s compensation claim and ultimately filed the
application for DDR benefits at issue here in April 2021.1 DDR benefits are
administered under the City of Milwaukee City Charter chapter 36, which governs

1
The record reflects that Lara also applied for and was denied ordinary disability
benefits from ERS at the same time. Nonetheless, Lara has only developed arguments based on
the DDR benefits denial. Issues not raised on appeal are deemed abandoned. A.O. Smith Corp.
v. Allstate Ins. Cos., 222 Wis. 2d 475, 493, 588 N.W.2d 285 (Ct. App. 1998).

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ERS and its administration of pension, retirement, and disability benefits.
MILWAUKEE, WI, CITY CHARTER (MCC) § 36-01, 36-05-3. An employee who is
“permanently and totally incapacitated for duty as the natural and proximate result
of an injury occurring at some definite time and place while in the actual
performance of duty” may request a “duty disability retirement allowance.” MCC
§ 36-05-3. For police and fire department employees specifically, eligibility is
determined as follows: (1) an applying member must be examined by the Medical
Council, (2) the Medical Council “shall make the examination, determination and
certification” required in the form proscribed by the Pension Board; (3) if the
Medical Council recommends that the applicant is entitled to DDR benefits, the
Pension Board “shall thereupon grant such allowance.” MCC § 36-05-3-c-1-a.

¶4 Lara underwent multiple Independent Medical Examinations (IMEs)
conducted by specialists in neurology, psychiatry, psychology, and
neuropsychology from November 2019 to April 2022. Although the IME reports
offered different reasons to explain Lara’s symptoms, they all concluded that Lara
was not disabled as a result of the workplace injury on September 23, 2019.

¶5 We recite from each IME report presented in the administrative
appeal.

 Dr. Robert Graebner performed a neurological evaluation and
concluded that Lara’s disability was not a result of the concussion in
the workplace injury, but from an unrelated mood disorder.

 Dr. David Osmon performed a neuropsychological evaluation and
concluded that Lara could not return to normal officer duty because
of emotional distress caused by pre-existing psychological defense
mechanisms.

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 Forensic psychiatrist Dr. Caroline Palmer performed a psychiatric
evaluation and concluded that Lara did not suffer from any
psychiatric condition but was instead feigning symptoms or
malingering, based on objective measure testing to assess legitimate
symptoms.

 Dr. Sara Swanson performed a neuropsychological evaluation and
concluded that Lara’s symptom reporting far exceeded what would
be expected with the reported injury, that his performance on
objective tests was “non-credible,” and that his reported symptoms
could only be accounted for by a psychiatric illness or malingering.
She concluded that Lara at most suffered a mild concussion because
the ER report and CT imaging did not show any objective indicia of
a head injury. She observed that Lara’s claim that his symptoms
worsened over time was not consistent with a legitimate traumatic
brain injury (TBI).

¶6 The Medical Council reviewed Lara’s application for DDR benefits,
determined he did not meet the criteria, and recommended denying these benefits.
MCC § 36-01, 36-05-3, 36-15-12. At the July 27, 2022 meeting, the Pension
Board unanimously voted to accept the Medical Council’s certifications of its
recommendations to approve or deny DDR and ordinary disability applications
and re-examinations of eight persons, including Lara. The Pension Board notified
Lara by letter that it had accepted the Medical Council’s recommendation that his
application be denied.

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¶7 With that denial, Lara began the municipal administrative review
and appeal process in WIS. STAT. ch. 68 (2023-24).2 This process allows a denied
benefit claimant to challenge the Medical Council’s determination in two parts.
First, the claimant may request an independent review of the denial, pursuant to
WIS. STAT. § 68.08. Lara petitioned for the independent review, in which the
medical evidence and reports in the record were reviewed. The independent
reviewer issued a report concluding that Lara’s injuries were not a result of the fall
on September 23, 2019, and recommending that the Medical Council’s decision to
deny benefits be affirmed.

¶8 If the claimant is still dissatisfied after the independent review, the
claimant may then request an administrative appeal hearing, at which both the
appellant and the municipality may be represented by attorneys, present evidence,
and examine witnesses. WIS. STAT. §§ 68.01, 68.08-68.11. The hearing may “be
conducted by an impartial person … designated to conduct the hearing and report
to the decision maker.” Id. Next, the municipal authority must “provide an
impartial decision maker … who did not participate in making or reviewing the
initial determination” to review the IHE’s report and make the final determination.
Sec. 68.11(2). The decision maker makes a final determination and delivers it to
the appellant within 20 days of the completion of the hearing and the filing of any
briefs. WIS. STAT. § 68.12.

¶9 Lara requested an administrative appeal hearing, which was
conducted by the IHE over two dates: January 12, 2023 and March 2, 2023. The
IHE heard testimony from Lara; his wife; MPD Officer Anthony Rivera, who

2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP1685

knew Lara from both shared past police work and military service; a physical
therapist who treated Lara; Dr. Nora; and Dr. Swanson.

¶10 Dr. Nora testified that to a reasonable degree of medical certainty,
Lara suffered a TBI as a result of his workplace accident, that the injury was the
direct cause of his disability, and that he was permanently disabled. He described
Lara’s symptoms, which included executive dysfunction, emotional dysregulation,
short-term memory loss, and vision dysfunction, as classic symptoms of a brain
injury. Conversely, Dr. Swanson testified that Lara’s subjective, self-reporting of
his symptoms was inconsistent, and that in objective testing, he showed a definite
embellishment of neurologic symptoms.

¶11 On March 14, 2023, the IHE issued his report finding that Lara
qualified for DDR benefits. The IHE’s report found: (1) that Lara suffered a
concussion in the workplace injury on September 23, 2019; (2) it was disputed
whether his injuries were permanent, but there were “no opinions to the required
degree of medical certainty” that Lara was feigning or malingering; (3) Dr. Nora’s
testimony indicated by a preponderance of the evidence that Lara suffered
permanent impairment as a result of the workplace injury; and (4) Lara’s
permanent medical condition prevents him from performing as an MPD officer in
any capacity and he is permanently disabled from doing so. The IHE’s report
stated he was overruling the Pension Board’s denial of Lara’s DDR status.

¶12 The last page of the IHE’s report was titled, “Appeal”; it informed
the parties that within 45 days of the report, the parties could submit written briefs

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to the Pension Board setting forth their respective positions.3 The appeal briefs
were to be directed to the executive director of ERS. The appeal would be
addressed at the next Pension Board meeting following the receipt of the briefs.
Finally, the notice provided that “within (10) ten days of its final decision, the
Board shall deliver to the appellant its written determination stating the reasons
therefore. Such determinations shall be final.”

¶13 On April 4, 2023, the City of Milwaukee filed a brief with the
Pension Board arguing that the IHE’s report omitted and mischaracterized key
evidence such that the report was unreliable. The City noted that it rarely disputed
an IHE report, that the purpose of the IHE is to aid the Pension Board’s decision-
making process, and that the Pension Board retained ultimate authority over
whether to grant or deny a benefits application.4 The City argued that the IHE’s

3
We note that the ANNUITY AND PENSION BOARD OF THE EMPLOYEES’ RETIREMENT
SYSTEM OF THE CITY OF MILWAUKEE RULES AND REGULATION RULES provide additional
procedures for an appeal under the WIS. STAT. ch. 68 framework including those set forth in the
appeal instruction in the IHE’s original report. As those rules would not supersede the statute, we
do not address them in any detail. See Conway v. Board of Police & Fire Comm’rs of City of
Madison, 2003 WI 53, ¶28, 262 Wis. 2d 1, 662 N.W.2d 335 (“An administrative agency has only
those powers that are expressly conferred or necessarily implied from the statutory provisions
under which it operates.”); MCC § 36-15-6 (“Subject to the limitations of this act … the board
shall … establish rules and regulations … in order to carry out the provisions of this act”);
BOARD RULES I(A) (“The Board is governed by the provisions of Chapter 36 of the Milwaukee
City Charter”).
4
We note that this brief is the only time that the City appears as itself and we follow its
example. The Pension Board, ERS, and the City are co-respondents in this matter and they are
represented by the City of Milwaukee City Attorney’s Office in this and similar matters. The
administrative orders in the record have been denoted as ERS proceedings, with Lara as the
applicant and the Pension Board as the respondent; however, the correspondence with Lara
appeared to come from the Pension Board. Lara argues that it is a conflict of interest to have the
Pension Board appear in multiple roles (and appear by the same attorney) in this adversarial
proceeding over which it asserts it makes the final determination. While we acknowledge his
complaint and also have some concern about the structure of these proceedings in general, Lara
has not presented any evidence of an actual conflict.

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No. 2024AP1685

report misstated Officer Rivera’s testimony5 and erred when it relied on Dr.
Nora’s opinion because his opinion was based on Lara’s subjective complaints and
not objective testing.

¶14 On April 25, 2023, Lara submitted a brief to the Pension Board,
noting his objection to the IHE’s report being considered anything but the final
determination of the administrative appeal, pursuant to WIS. STAT. §§ 68.11,
68.12. Lara argued that this was a case of credibility; the IHE heard the evidence
and determined Lara and Dr. Nora were most credible. Lara disputed the value of
the IME reports, arguing that Dr. Nora’s testimony negated Dr. Osmon’s IME
report, and that Dr. Palmer’s IME report contradicted and negated Dr. Graebner’s
IME report. Lara asserted that Officer Rivera’s testimony was immaterial to the
final determination because he is not a medical expert.

¶15 The Pension Board returned the IHE’s report to him for a
reassessment of the evidence. On July 17, 2023, the IHE submitted the
“Independent Hearing Examiner’s Decision of Reassessment of Decision.” The
IHE concluded that he continued to recommend that Lara be considered eligible
for DDR benefits, after consideration of the hearing transcripts, the parties’ post-
hearing briefs, the reconsideration request, and additional briefing he requested of
the parties. The IHE’s reassessment report dismissed the issue of malingering as
“not involved.” The IHE found that Dr. Swanson could not come to a firm
conclusion that Lara was malingering. The IHE did not give weight to the IME
reports of either Dr. Graebner or Dr. Osmon, neither of whom testified. He found

5
The IHE’s report stated that Officer Rivera only noticed changes in Lara’s behavior
after the incident. The City argues that the transcripts show that Officer Rivera testified to
observing Lara declining physically and mentally at least six months before the concussion.

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No. 2024AP1685

those IME reports contradicted and conflicted with Dr. Palmer’s IME report. The
IHE gave great weight to Dr. Nora’s consistent opinion, based on direct, on-going
treatment, and his reference of the neuro-optometrist’s reports, which offered
objective evidence of a brain injury.

¶16 At the August 29, 2023 meeting, the Pension Board voted to
consider Lara’s claim in closed session.6 The Pension Board issued the “Final
Determination” written decision the same day, denying Lara’s claim for DDR
benefits. The decision began with the Pension Board’s authority to make the final
determination and its request for reassessment by the IHE because the original
report was defective due to material errors. The final determination established
three reasons it rejected the IHE’s recommendation: (1) the IHE’s dismissal of
multiple experts who opined that Lara was malingering; (2) multiple factual errors
in the IHE’s findings; and (3) the conclusory nature of both of the IHE’s reports.

¶17 In the final determination, the Pension Board found that while the
four IME reports separately concluded that Lara was not disabled as a result of his
workplace injury, the IHE’s original report did not discuss two of the IME reports
and mischaracterized the other two. While the IHE gave great weight to Dr.
Nora’s testimony, the Pension Board considered Dr. Nora’s opinion to be suspect
because he relied heavily on Lara’s subjective reporting of his symptoms, failed to
review the emergency room report made immediately after the injury, and
correlated Lara’s cognitive deficits with the injury despite evidence otherwise.

6
The record reflects that after briefing was completed in April 2023, Lara’s DDR claim
was on the agenda for the May, June, and July 2023 Pension Board meetings. However, the
Pension Board held over the decision for additional consideration before making the final
determination at the August 29, 2023 meeting, and sending a written final determination by letter
the same day.

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¶18 The Pension Board discussed factual errors in both of the IHE’s
reports that were refuted by the transcripts and documentary evidence. Although
the IHE dismissed the testimony of Officer Rivera as non-corroborative, the
transcript showed he noticed a decline in Lara’s physical and mental state at least
six months before the workplace injury. The IHE noted that Dr. Swanson did not
use the term malingering, but failed to consider her consistent opinion that Lara
was exaggerating his symptoms. Dr. Swanson testified she did not see objective
evidence of malingering or feigning. The Pension Board found it could not
substantiate a finding that Lara suffered a workplace injury that directly
contributed to his disabling conditions.

¶19 Pursuant to WIS. STAT. § 68.13, Lara pursued judicial review of the
Pension Board’s decision in a petition and complaint for review by certiorari. The
circuit court reviewed briefing and the administrative record, and issued a decision
affirming the Pension Board’s decision and denying Lara’s request for the court to
overturn the Pension Board’s decision on certiorari. Lara now appeals.

DISCUSSION

¶20 This appeal reaches us by certiorari. “Certiorari is a mechanism by
which a court may test the validity of a decision rendered by a municipality,
administrative agency, or other quasi-judicial tribunal.” State ex rel. City of
Waukesha v. Waukesha Bd. of Rev., 2021 WI 89, ¶18, 399 Wis. 2d 696, 967
N.W.2d 460. As such, we review the decision of the Pension Board, not the
circuit court’s order. Gehin v. Wisconsin Grp. Ins. Bd., 2005 WI 16, ¶5, 278
Wis. 2d 111, 692 N.W.2d 572. “The scope of our review is limited to the record
of the administrative proceedings[.]” State ex rel. Harris v. Annuity & Pension
Bd., Emp. Ret. Sys. of Milwaukee, 87 Wis. 2d 646, 651, 275 N.W.2d 668 (1979).

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¶21 In the review of a certiorari action, our inquiry is narrow. City of
Waukesha, 399 Wis. 2d 696, ¶19. We address only whether the Pension Board’s
actions: (1) kept within its jurisdiction; (2) proceeded on a correct theory of law;
(3) were arbitrary, oppressive, or unreasonable, representing its will and not its
judgment; and (4) were supported by evidence that it might reasonably make the
order or determination in question. Harris, 87 Wis. 2d at 651-52. Neither this
court nor the circuit court assigns weight to the evidence, and we restrict our
inquiry “to whether there is substantial evidence to support the” Pension Board’s
decision. Van Ermen v. DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978).

¶22 Lara argues that the Pension Board’s actions were contrary to law as
well as arbitrary and unreasonable. First, he argues that the IHE was the proper
impartial decision maker, not the Pension Board, because the Pension Board
cannot make both the initial and final determination under WIS. STAT. § 68.11(2).
Second, he argues that the Pension Board violated the statutory time limit to issue
the final determination. Third, he contends that the Pension Board acted
unreasonably and contrary to law when it returned the issue to the IHE for
reassessment. Fourth, Lara asserts that the Pension Board’s reliance on the
inconsistent IME reports was arbitrary and unreasonable. The Pension Board
responds that Lara has not met his burden of proof for his claims and that
substantial evidence supports the decision.

I. Correct final decision maker

¶23 Lara argues that the Pension Board violated WIS. STAT. § 68.11(2)
because the IHE was the final decision maker, only the IHE could make credibility

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determinations,7 and the IHE’s original report was the final determination. He
then asserts that the Pension Board’s issuance of the final determination was
contrary to law because it also made the initial determination of Lara’s eligibility
for DDR benefits. He contends the Pension Board acted unreasonably and
contrary to law when it did not promptly approve the IHE’s decision. He asserts
that previously, the Pension Board had always followed the IHE’s
recommendation. The Pension Board argues that it did not make the initial
determination, it is the impartial decision maker of the final determination, and the
IHE is not the decision maker, despite any language used by the IHE here, or any
pattern in previous decisions.

¶24 To resolve the question of whether the IHE or the Pension Board
makes the final determination, we must interpret WIS. STAT. § 68.11. “[T]he
purpose of statutory interpretation is to determine what the statute means so that it
may be given its full, proper, and intended effect.” State ex rel. Kalal v. Circuit
Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. “As a
general rule, courts apply the ordinary and accepted meaning of language in
statutes, unless it leads to an absurd result.” Seider v. O’Connell, 2000 WI 76,
¶32, 236 Wis. 2d 211, 612 N.W.2d 659 (citation omitted).

¶25 Under WIS. STAT. § 68.11(2), a municipal authority must “provide
an impartial decision maker” to make the final decision on the administrative
appeal. The decision maker “may be an officer, committee, board, commission or
the governing body who did not participate in making or reviewing the initial

7
We note that we address the issue of credibility determinations in section III on the
Pension Board’s authority to return the report to the IHE to reassess.

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determination.” Id. However, the decision maker is not required to conduct the
hearing; instead, the municipal authority may appoint “an impartial person,
committee, board or commission” to conduct the hearing “and report to the
decision maker.” Id.

¶26 Although an IHE could be appointed by a municipal authority to
serve as the impartial decision maker, it is not a requirement, by the statute’s plain
meaning. The statute requires only that the impartial decision maker not
participate in the initial determination. There is no support in WIS. STAT.
§ 68.11(2) or within § 68.11—and Lara offers no other legal authority—that
requires that the IHE be the “impartial decision maker.” Therefore, we conclude
that the Pension Board had statutory authority to be the decision maker of the final
determination.

¶27 Therefore, we turn to the Pension Board’s impartiality, and
specifically, whether it made the initial determination on Lara’s benefit
application. As the United States Supreme Court held, “prior involvement in some
aspects of a case will not necessarily bar [an] official from acting as a decision
maker”; however, the official should not “have participated in making the
determination under review.” Goldberg v. Kelly, 397 U.S. 254, 271 (1970).

¶28 To resolve whether the Pension Board made the initial
determination, we interpret relevant sections of the MCC. See Milwaukee Police
Ass’n v. Hegerty, 2005 WI 28, ¶11, 279 Wis. 2d 150, 693 N.W.2d 738. “Like
statutory interpretation, the interpretation and application of a municipal ordinance
is a question of law” that we review independently. Grycowski v. Milwaukee
Emps.’ Ret. Sys./Annuity & Pension Bd., 2021 WI App 7, ¶32, 395 Wis. 2d 722,
953 N.W.2d 904.

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¶29 In the MCC provisions governing DDR benefits, a member applying
for benefits “shall be examined by a medical panel and such medical panel shall
make the examination, determination and certification” required to determine
benefit eligibility. MCC § 36-05-3-c-1-a. If the medical panel (here, the Medical
Council) recommends that the applicant is entitled to DDR benefits the Pension
Board “shall thereupon grant such allowance.” Id. The ordinance plainly
authorizes the Pension Board to grant a DDR benefits allowance only when the
Medical Counsel recommends the applicant for a benefits allowance. 8 We
construe the ordinance as authorizing the Medical Council to make a discretionary
decision on the initial determination and recommendation on an applicant’s
eligibility for DDR benefits. In contrast, the Pension Board does not have
discretion; it must follow the Medical Council’s recommendation.

¶30 Lara has not identified an MCC provision that gives the Pension
Board the authority or discretion to overrule the Medical Council, if the Pension
Board disagreed with the Medical Council’s recommendation.9 The record
reflects that the Pension Board adopted Medical Council’s recommendations for
all applicants during that month. We consider the Pension Board’s actions for the

8
We observe that the use of the term “recommendation” in these MCC provisions is, at
best, confusing and, at worst, risks being misleading about the Medical Council’s role and
authority.
9
The record reflects that Lara received two letters from the executive director of ERS:
(1) stating that the Medical Council submitted its certification that Lara did not meet the
eligibility requirements for DDR benefits and that the Pension Board would receive that report at
the July 27, 2022 meeting; and (2) stating that the “Pension Board accepted the Medical
[Council’s] recommendation” that his application for benefits be denied. Lara argues this is
evidence of the Pension Board making the initial determination. While the ERS director’s use of
the word “accepted” may suggest that the Pension Board has authority not to accept the Medical
Council’s recommendation, the letters do not supersede the plain meaning of the MCC
provisions, which do not provide discretion to the Pension Board in this determination.

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No. 2024AP1685

initial determination to be administrative. See City News & Novelty, Inc. v. City
of Waukesha, 231 Wis. 2d 93, 124, 604 N.W.2d 870 (Ct. App. 1999) (concluding
that a mayor who had a purely administrative role presiding over the city council
meeting where the initial determination was made was not barred from being on
the panel that made the final determination when there was no evidence of bias
presented).

¶31 Considering the initial determination and the final determination
procedures, we conclude that the Pension Board did not make both determinations.
As noted, the initial determination is driven by the Medical Council’s examination
determination, and the Pension Board’s role in that determination is merely
ministerial. In contrast, the Pension Board makes a final determination on a DDR
application with consideration of the IHE’s report. We conclude that the Pension
Board’s actions were not contrary to law.

II. Violation of the statutory time limit

¶32 Lara argues that the Pension Board’s final determination was issued
160 days after the mandatory 20-day time limit in WIS. STAT. § 68.12(1), which
violated his due process rights. The statute provides: “Within 20 days of
completion of the hearing conducted under [WIS. STAT. §] 68.11 and the filing of
briefs, if any, the decision maker shall mail or deliver to the appellant its written
determination stating the reasons therefor.” Sec. 68.12(1). Lara contends that the
delay harmed him because it caused over a 5-month delay in his ability to collect
benefits and, later, to contest the denial of benefits.

¶33 The Pension Board argues that the 20-day time limit is directory, not
mandatory. Although the Pension Board concedes the final determination was
delayed, it argues it was 23 days late, not 160, as calculated from the IHE’s

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reassessment report and subsequent issuance of the decision—43 days after the
reassessment report, and 23 days over the statutory time limit.

¶34 “The general rule is that the word ‘shall’ is presumed mandatory
when it appears in a statute.” Karow v. Milwaukee Cnty. Civ. Serv. Comm’n, 82
Wis. 2d 565, 570, 263 N.W.2d 214 (1978). Nonetheless, a statutory time limit is
deemed directory where “there is no substantial reason why the thing by statute
required to be done might not as well be done after the time prescribed as before”;
there is no “injury or wrong” for the act occurring after the time limit; or there is
nothing in the statute “indicating that the [L]egislature did not intend that it should
rather be done after the time prescribed than not done at all[.]” City of Appleton v.
Bachman, 197 Wis. 4, 9-10, 220 N.W. 393 (1928).

¶35 “Whether a statutory time limit is mandatory or directory is a
question of law that we review independently.” Koenig v. Pierce Cnty. DHS,
2016 WI App 23, ¶39, 367 Wis. 2d 633, 877 N.W.2d 632. When reviewing
whether a statutory time limit is mandatory or directory, case law directs us to
consider these four factors: “(1) the purpose of the statute; (2) the statute’s history;
(3) whether a penalty or prohibition is imposed for the violation of the time limit;
and (4) the consequences of interpreting the statutory time limit as either
mandatory or directory,” which includes considering whether the failure to comply
with the time limit injures or wrongs the appellant. Id., ¶45.

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¶36 Our analysis comes down to the fourth factor—the consequences of
the interpretation of the time limit under these facts and circumstances.10 To
analyze the consequences, we look at whether an applicant suffers an injury or
wrong if the written final determination is delivered after the time limit. Lara
argues the time limit is mandatory because the delay caused him injury; however,
the only injury he asserts is a delay in receiving DDR benefits or pursuing an
appeal. Conversely the Pension Board contends the time limit is directory because
an applicant for DDR benefits is not harmed because benefits, if granted, are
provided retroactively based on the day the benefits application was filed.
Specifically, the MCC provides that when DDR benefits are granted, those
benefits begin “not less than 30 nor more than 90 days after the filing of the
application[.]” MCC § 36-05-3-a. Therefore, the date the final determination is
mailed or delivered does not affect the calculation or eventual receipt of DDR
benefits, if the application is granted in the appeal. Accordingly, the delayed
decision did not result in an injury to Lara. See Karow, 82 Wis. 2d at 572 (“[A]
time limit may be construed as directory when allowing something to be done
after the time prescribed would not result in an injury.”). We conclude that under
the facts and circumstances of this case the 20-day time limit is directory.

¶37 Because the Pension Board conceded that the final determination
was delivered outside of the time limit and we conclude the time limit was
directory, we do not resolve when the time limit began or determine whether the
decision was “mail[ed] or deliver[ed]” within the time limit. See State v. Blalock,

10
We note that the first three factors are not dispositive. Neither the purpose nor history
of the statute demand a mandatory or directory interpretation of the time limit. Further, the
statute does not prohibit official action by an agency if the final determination is made outside of
the 20-day time limit and the time limit does not restrict the applicant’s actions.

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150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be
decided on the narrowest possible ground.”) Lara fails to show that the Pension
Board’s delayed delivery of the final determination was unreasonable, contrary to
law, or violated due process.

III. Legal authority and reasonable actions to reassess the evidence

¶38 Lara argues that the Pension Board acted unreasonably, exercising
its will and not its judgment, and contrary to law when it ordered the IHE to
reassess the evidence from the hearing. He contends that there is no law, rule, or
authority that allows the Pension Board to delay issuing a decision for a
reassessment of evidence. He further asserts that remand to the IHE for
reassessment proves that the Pension Board did not have or believe it had the
authority to overrule the IHE’s original report.

¶39 The Pension Board argues it has the inherent authority to undertake
remedial actions to ensure the accuracy of agency decisions. “It is a fundamental
and basic principle of administrative agency law that ‘an administrative agency
has the power to reconsider its own decisions since the power to decide carries
with it the power to reconsider.’” Schoen v. Board of Fire & Police Comm’rs of
Milwaukee, 2015 WI App 95, ¶20, 366 Wis. 2d 279, 873 N.W.2d 232 (one set of
quotation marks and citation omitted).

¶40 As we concluded above that the IHE’s original report was not a
decision—instead, it was only a report to the decision maker—we are not
persuaded that legal authority to reconsider a decision is on point. Our supreme
court has recognized that an administrative agency may set aside the findings of an
IHE or reach a different conclusion than that proposed by an IHE as long as a
claimant is provided “due process of law.” Hakes v. LIRC, 187 Wis. 2d 582, 588,

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523 N.W.2d 155 (Ct. App. 1994). Ultimately, it is the Pension Board, not the
IHE, that makes the fact-finding and credibility determinations. “The hearing
examiner may make initial determinations on witness credibility, but these
determinations are subject to the commission’s independent review.” Id. at 589.
The Pension Board’s final determination is an independent, original decision; it is
not merely reviewing the IHE’s determination.

¶41 Similarly, we reject Lara’s argument that the IHE was the only
person who could make credibility decisions. The record reflects that the IHE
heard testimony, reviewed the evidence and determined admissibility, and made
factual findings. When the Pension Board concluded that the IHE’s report and
recommendation were not supported by the evidence and relied upon factual
errors, the Pension Board required the IHE to further discuss the evidence
necessary for the Pension Board to make the final determination.

¶42 “Fundamental fairness requires that administrative agencies … set
forth the reasons why a fact-finder’s findings are being set aside or reversed, and
spell out the basis for independent findings substituted.” Transamerica Ins. Co. v.
Department of ILHR, 54 Wis. 2d 272, 283-84, 195 N.W.2d 656 (1972). An
administrative agency must follow a two-step procedure to set aside the IHE’s
credibility determinations: (1) consult with the examiner and (2) submit a memo
explaining its basis for rejecting a hearing examiner’s findings. Id. Here, the
remand to the IHE for reassessment and examination of the evidence satisfies the
first step. The Pension Board’s request for a second report from the IHE gave the
Pension Board the benefit of the IHE’s impressions of material witnesses. See id.
The final determination itself was a written explanation of its basis for rejecting
the IHE’s findings; therefore, it satisfies the second step. See id.

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¶43 The record reflects that the Pension Board’s final determination
discussed three issues with the IHE’s original report. As we discussed in more
detail below, the Pension Board criticized the IHE’s report: (1) for ignoring the
collective weight of the four IME reports, while ignoring concerns about Dr.
Nora’s opinion; (2) for containing multiple factual errors; and (3) for being
conclusory and failing to consider the entire record. We conclude that the Pension
Board was not acting unreasonably or contrary to law when it requested the IHE
reassess the evidence and provide a report. The Pension Board satisfied the
procedure set forth in Transamerica Ins. Co., 54 Wis. 2d at 284. We conclude
that the Pension Board’s actions to require the IHE to reassess the evidence were
neither willful nor contrary to law.

IV. Inconsistent IME reports and substantial evidence

¶44 Lara argues that the Pension Board acted in an arbitrary and
unreasonable manner because it relied on four IME reports that are inconsistent
and reach disparate conclusions. Further, he asserts that by relying on inconsistent
and speculative evidence, the Pension Board’s decision was not supported by
substantial evidence. He argues the Pension Board was unreasonable when it
disregarded the consistent opinion of Dr. Nora and that the Pension Board
mischaracterized Dr. Nora’s opinion.

¶45 Discussing the inconsistencies in the IME reports, Lara contends that
Dr. Palmer’s report contradicted both Dr. Graebner and Dr. Osmon’s report,
leaving the latter opinions moot. While Dr. Palmer opined Lara lacked pre-
existing mental health issues, Dr. Graebner opined Lara’s condition appeared to be
an unrelated mood disorder and Dr. Osmon opined that Lara’s issues resulted from
premorbid repressive defense mechanisms and prior head injuries. Dr. Swanson

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No. 2024AP1685

opined that Lara’s brain injury was not permanently disabling, and instead his
issues stemmed from depression and anxiety; Lara points out that Dr. Swanson
agreed that he suffered a TBI and that depression and anxiety were common after
one. He argues that by accepting Dr. Palmer’s diagnosis of no pre-existing mental
health conditions, the only reasonable conclusion is that the depression and
anxiety were caused by the workplace injury.11

¶46 Lara argues that the inconsistency among the four IME reports
prevents a finding of substantial evidence to support the Pension Board’s decision.
This is simply not the standard. In our appellate review, we apply the substantial
evidence test, which requires only that the findings be “supported by any credible
and substantial evidence in the record, even if they are contrary to the great weight
and clear preponderance of the evidence.” Teriaca v. Milwaukee Emps.’ Ret.
Sys./Annuity & Pension Bd., 2003 WI App 145, ¶30, 265 Wis. 2d 829, 667
N.W.2d 791 (citation omitted). Lara has the burden to prove he has a disabling
condition and to prove a causative link between that condition and a work-related
injury.

¶47 In this case, the Pension Board could have determined that Lara was
disabled by a workplace injury based on Dr. Nora’s evidence and testimony, in

11
Lara and the IHE both discussed whether the medical reports, offered without
testimony by the author, may be admissible under the relaxed evidentiary rules in administrative
hearings and may qualify as an exception to hearsay. See Gehin v. Wisconsin Grp. Ins. Bd.,
2005 WI 16, ¶¶69, 86, 278 Wis. 2d 111, 692 N.W.2d 572. Because exceptions to hearsay are
“still hearsay,” administrative agencies may not “rely[] solely on uncorroborated hearsay” to
satisfy the “substantial evidence” standard required to sustain their decisions. Id., ¶58.
Therefore, those IME reports cannot be the only evidence to support the Pension Board’s decision
to deny DDR benefits to Lara. However, the substantial evidence supporting the decision was not
comprised solely of these medical reports. Dr. Swanson testified at the hearing. Her conclusion
that Lara was not disabled by a workplace injury corroborates the other three IME reports
reaching a similar, ultimate conclusion.

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No. 2024AP1685

union with the IHE. However, “[i]t was just as reasonable for the [Pension] Board
to give credence and weight to the other witnesses presented.” Harris, 87 Wis. 2d
at 659. The Pension Board rejected Dr. Nora’s opinion as reliant on subjective
patient reporting and instead adopted the collective IME reports’ conclusion that
Lara’s condition was not the result of a workplace injury. We conclude that the
Pension Board’s findings and conclusions were supported by substantial evidence.
The Pension Board’s decision to weigh more heavily the collective IME reports’
than Dr. Nora’s report and testimony was not an arbitrary or unreasonable action
and was not contrary to law.

CONCLUSION

¶48 We conclude that the Pension Board’s decision to deny DDR
benefits to Lara was supported by substantial evidence in the record and was not
arbitrary, unreasonable, or contrary to law. Accordingly, we affirm.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

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