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  • WisBar News
    September 09, 2019

    Appeals Court: Voluntary Retirement Precludes Worker’s Compensation Benefits

    Joe Forward

    Worker's Compensation

    Sept. 9, 2019 – A state appeals court has ruled that a woman who voluntarily quit her job after she was injured does not qualify for some worker’s compensation benefits.

    Janet Mueller injured her shoulder while lifting a headboard on the production line at Ashley Furniture. She was placed on light duty and received temporary partial disability benefits to cover the difference in compensation for the lighter versus heavier role.

    More than four months later, she submitted a notice of resignation form. A month after retiring, her temporary partial disability payments stopped. She attempted to get her old job back and applied for a new position at Ashley Furniture, but she was not selected.

    Mueller underwent surgery on a rotator cuff and biceps tendon. Ashley conceded that Mueller’s injury occurred on the job, causing five percent permanent partial disability.

    An independent medical examiner added an additional three percent, and Ashley paid those amounts owed through her “end of healing” date a year after surgery.

    But Mueller then sought payments for temporary total disability from the date of her resignation through the end of healing date. She said the worker’s compensation department did not inform her that retiring would impact her benefits.

    The administrative law judge ruled that Mueller did not retire because of the work injury and dismissed her claims. The Labor and Industry Review Commission (LIRC) affirmed.

    Mueller sought review and the circuit court affirmed but remanded the case to determine if Mueller had re-entered the work force such that she was entitled to temporary partial disability benefits between her surgery date and of the end of healing date.

    Mueller had secured part-time work at a café, during her healing period, working six to 14 hours per week. But LIRC ruled that the part-time employment was not sufficient to establish “actual wage loss to injury,” because she could have worked full time.

    In Mueller v. Labor and Industry Review Commission, 2018AP707 (Aug. 27, 2019), the District III Appeals Court affirmed the circuit court, denying temporary disability benefits during the year between Mueller’s surgery and recovering from the procedure.

    The three-judge panel rejected Mueller’s claim that voluntary retirement is not an exception to worker’s compensation provisions that provide coverage.

    “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,” wrote Judge Mark Seidl, noting a worker must show wage loss due to 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.”

    Judge Seidl distinguished another case in which an employee was injured on the job but then terminated for making false representations about the work injury. The Wisconsin Supreme Court ruled that the injured worker was still entitled to worker’s compensation.

    “[U]nlike 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,” Judge Seidl wrote.

    The three-judge panel also ruled rejected Mueller’s argument that she reentered the job market as a part-time employee and that was sufficient to show she earned less than she did, before the injury, while working full-time for Ashley Furniture:

    “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.”

    Judge Seidl said Mueller did not bring forth evidence that her attempts to re-enter the labor market were impaired by her work-related injury.

    The three-judge panel noted testimony in which Mueller expressly stated that she could work full-time but chose to work part-time at the café and did not want to work full-time.

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