Pick 'n Save Roundy's v. Labor & Industry Review Commission

2010 WI App 130, 791 N.W.2d 216, 329 Wis. 2d 674, 2010 Wisc. App. LEXIS 694
CourtCourt of Appeals of Wisconsin
DecidedAugust 25, 2010
DocketNo. 2009AP2594
StatusPublished
Cited by8 cases

This text of 2010 WI App 130 (Pick 'n Save Roundy's v. Labor & Industry Review Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pick 'n Save Roundy's v. Labor & Industry Review Commission, 2010 WI App 130, 791 N.W.2d 216, 329 Wis. 2d 674, 2010 Wisc. App. LEXIS 694 (Wis. Ct. App. 2010).

Opinion

ANDERSON, J.

¶ 1. Pick 'n Save Roundy's and Old Republic Insurance Company (Pick 'n Save) appeal from a circuit court decision affirming the Labor and Industry Review Commission's (LIRC) order awarding compensation to Jill Lucchesi for injuries suffered while performing cake decorating because she was asked to do so by her superiors, despite the fact that Pick 'n Save was aware of medical restrictions prohibiting such activity. We hold that LIRC is entitled to great weight deference, and its finding that Lucchesi's injuries were not self-inflicted is reasonable under the plain language of Wis. Stat. § 102.03(1)(d) (2007-08)1 and consistent with the purpose of the Worker's Compensation Act. We therefore affirm the circuit court.

¶ 2. Lucchesi began working at Pick 'n Save grocery store in Brookfield, Wisconsin, in 1996. She later became a cake decorator at the store, a job that entailed "repetitive squeezing of a frosting tube." In 2000, Lucchesi began experiencing problems in both wrists and sought treatment from Dr. David Haskell, an orthopedic surgeon. Dr. Haskell diagnosed Lucchesi with carpal tunnel syndrome and performed surgery in 2001. Dr. Haskell gave Lucchesi a one-page document entitled Recommendations to Return to Work, which listed "no cake decorating" as a permanent work restriction. Soon after, Lucchesi returned to work at Pick 'n Save and gave Dr. Haskell's work recommendations to the store manager on duty. Lucchesi was assigned to bakery clerk duties, performing tasks not involving cake decorating.

¶ 3. Lucchesi continued to work as a bakery clerk until late spring 2005, when two of the store's cake decorators were transferred. The store manager and [680]*680bakery manager at the time then asked Lucchesi to fill in as a cake decorator. Lucchesi claimed that she was willing to do this in spite of her work restrictions because she had been told that the store could not schedule her for thirty or more hours per week exclusively as a bakery clerk. Lucchesi's eligibility for health insurance required her to work at least thirty hours per week. This lasted until other cake decorators were hired in late 2005.

¶ 4. In late 2006, Lucchesi testified that the staff was again short of cake decorators and that she was again asked by management to fill in as a cake decorator. Lucchesi then returned to cake decorating until she began experiencing problems in January 2007. Lucchesi was again referred to Dr. Haskell, who performed carpal tunnel release surgeries on both wrists during spring 2007. After the surgeries, Dr. Haskell diagnosed Lucchesi with a five percent disability as compared to amputation of each wrist and expressed the opinion that the carpal tunnel syndrome was "directly related to her work activity as a bakery employee."

¶ 5. After the surgeries, Pick 'n Save denied Lucchesi's claim for worker's compensation benefits. A worker's compensation administrator informed Lucchesi of Pick 'n Save's belief that her injuries were self-inflicted by working outside her permanent restrictions. As a result, Lucchesi did not receive any disability benefits or obtain any other source of income while recovering from the surgeries. Lucchesi was then granted a hearing before the Wisconsin Department of Workforce Development.

¶ 6. An administrative law judge (ALJ) found that Dr. Haskell's work restriction provided notice of Lucchesi's restrictions and that Pick 'n Save failed to educate its supervisory staff of those restrictions or [681]*681reasonably enforce them. As a result, the judge ruled in favor of Lucchesi, ordered Pick 'n Save to pay $15,553.22 to Lucchesi as accrued compensation, and also ordered payment of other medical expenses. Pick 'n Save appealed the decision to LIRC, which upheld the ALJ's order. In its memorandum opinion, LIRC found that Lucchesi's activities did not meet the definition of an intentional self-inflicted injury. LIRC agreed with the ALJ's determination that even though Pick 'n Save was aware of Lucchesi's restrictions, it still requested that she perform cake decorating. It also found "no evidence that [Lucchesi] specifically acted to re-injure herself."

¶ 7. Pick 'n Save then appealed to the circuit court for Waukesha county, which upheld LIRC's decision. Pick 'n Save now appeals to this court.

¶ 8. On appeal, we review LIRC's decision and not the circuit court's. See Liberty Trucking Co. v. DILHR, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973). Moreover, LIRC's factual findings are conclusive. See Wis. Stat. § 102.23(l)(a). This court "shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact" given credible supporting evidence in the record. See § 102.23(6). When a question of fact involves a person's acts or his or her intent in doing such acts, the finding of LIRC is conclusive. See Fitzgerald v. Globe-Union, Inc., 35 Wis. 2d 332, 337, 151 N.W.2d 136 (1967).

¶ 9. However, "[t]he construction of a statute and its application to undisputed facts are questions of law that we generally review independently." See County of Dane v. LIRC, 2009 WI 9, ¶ 14, 315 Wis. 2d 293, 759 N.W.2d 571. Depending on the circumstances, LIRC's [682]*682interpretation of a statute is accorded one of three levels of deference: great weight deference, due weight deference, or no deference. Id.

¶ 10. Wisconsin Stat. § 102.03(l)(d) provides that an injury must not be "intentionally self-inflicted" among the many conditions of employer liability for worker's compensation benefits. LIRC found that because Lucchesi documented her work restrictions and was asked by her employer to return to cake decorating, Lucchesi's activities did not meet the "definition" of an intentionally self-inflicted injury under the statute.

¶ 11. Pick 'n Save contends that LIRC is entitled to no deference in its interpretation of Wis. Stat. § 102.03(l)(d) because the issues presented are of first impression. Conversely, LIRC argues that it is entitled to great weight deference given its expertise and its duty in applying the Worker's Compensation Act.

¶ 12. LIRC's interpretation of Wis. Stat. § 102.03(l)(d) is entitled to great weight deference if (1) LIRC was charged by the legislature with the duty of administering the statute, (2) the interpretation of the statute is one of long-standing, (3) LIRC employed its expertise or specialized knowledge in forming the interpretation, and (4) LIRC's interpretation will provide uniformity and consistency in the application of the statute. See County of Dane, 315 Wis. 2d 293, ¶ 16. Under great weight deference, LIRC's interpretation will be upheld if it is reasonable, even if other more reasonable interpretations exist. See id.

¶ 13.

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Cite This Page — Counsel Stack

Bluebook (online)
2010 WI App 130, 791 N.W.2d 216, 329 Wis. 2d 674, 2010 Wisc. App. LEXIS 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pick-n-save-roundys-v-labor-industry-review-commission-wisctapp-2010.