Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Administrative Law | Civil
Procedure | Commercial Law | Criminal
Law | Criminal Procedure |
| Employment Law | Family Law | Lemon Law | Motor Vehicle Law | Sexually Violent Persons | Torts |
| Worker's Compensation |
Administrative Law
Judicial Review of Chapter 227.53 Proceedings -
Requirement of Service on the Agency Involved
Gimenez v. State of
Wisconsin Medical Examining Board, No. 98-1367 (filed 7 July
1999) (ordered published 17 Aug. 1999)
The Wisconsin Medical Examining Board (Board) imposed professional
discipline on the petitioner, who is a general surgeon. After filing a
petition for review with the circuit court, the petitioner timely served
the attorney general. The Board then filed a motion to dismiss because
the petitioner had failed to serve it with the petition. The circuit
court denied the Board's motion.
In a decision authored by Judge Snyder, the court of appeals
reversed. It concluded that because Wis. Stat. section
227.53 requires service "upon the agency or one of its officials,"
and because the petitioner's service upon the attorney general was
inadequate to satisfy the service requirements, the circuit court never
acquired jurisdiction to review this case.
The court rejected the petitioner's argument that serving the
attorney general was sufficient because the attorney general had
represented the Board throughout these proceedings. Once an action has
begun, service of papers may be made upon an attorney who has appeared
in the action on behalf of a party. An attorney, however, is not
authorized by general principles of agency to accept, on behalf of a
client, service of process commencing an action. In the case of a
chapter 227 petition for circuit court review of an administrative
decision, the filing of the petition triggers the commencement of the
action rather than a continuation of it, since the earlier proceedings
between the parties were administrative, not judicial. Therefore, the
attorney general's continuing representation of the Board did not
authorize the attorney general to accept service for the Board. Section
227.53(1) unambiguously provides that a petition for judicial review
must be served upon the agency.
Civil Procedure
Clerk of Courts - Judgments - Statute of Limitations -
Untimely Docketing
South Milwaukee Savings
Bank v. Barczak, No. 97-3759 (filed 27 July 1999) (ordered
published 17 Aug. 1999)
A bank obtained summary judgment in its favor against a debtor. The
bank's attorney then presented a proposed order and judgment which the
judge signed. The attorney obtained the court's file, took it to the
clerk's office at about 3:30 p.m., and paid the judgment and docketing
fees. Although the clerk's office entered the judgment, for reasons
unknown to anyone, the clerk did not docket the judgment until the next
day. In the meantime, the debtor's wife, who had been in court when the
summary judgment was announced, went home and retrieved two quitclaim
deeds that allegedly conveyed the debtor husband's interest in the
property to her. She rushed back to the courthouse and recorded the
quitclaims with the register of deeds after the bank's judgment had been
entered but before it was docketed. This sequence of events
became critical when the bank later scrambled to collect on the judgment
in competition with other creditors who claimed priority. After the bank
lost on its claim based on the tardily docketed judgment, it filed this
suit against the clerk of court. The trial court ruled in the clerk's
favor, finding that the two-year statute of limitations had expired and
that the clerk had complied with the statutes controlling the docketing
of judgments.
The court of appeals, in an opinion written by Judge Curley,
reversed. First, the court held that the actions brought under the
docketing statute, section
806.10(3) of the Wisconsin Statutes, are governed by the six-year
statute of limitations. Wis. Stat. §
893.(1)(a). Second, as a matter of law the clerk violated the
docketing statute. The judgment was presented at 3:20 p.m. and the
clerk's office did not close until 5:00 p.m. Moreover, the clerk offered
no explanation as to why the judgment was not docketed in the time
remaining that day, although other evidence suggested that docketing was
not a "high priority." In short, the clerk violated section
806.10(3) regardless of whether it requires the docketing of
judgments "immediately" or instead permits the docketing within a
"reasonable time."
Commercial Law
Corporate Checks - Signer - Personal Liability - Fraud
Korhumel Steel Corp. v.
Wandler, No. 98-2042 (filed 14 July 1999) (ordered published 17
Aug. 1999)
The bookkeeper of a financially distressed corporation signed two
checks that were later returned for insufficient funds in the corporate
account. The payee claimed that the bookkeeper had committed fraud and
was personally liable for the amounts. The trial court agreed.
The court of appeals, in an opinion written by Judge Wilk, reversed.
The first issue concerned whether section
403.402(3) of the Wisconsin Statutes shields a corporate bookkeeper
from liability for fraud. That provision of the Uniform Commercial Code
(UCC) generally shields from personal liability one who signs a check in
a representative capacity. The court held, however, that the UCC's
protections did not extend to fraud claims, relying on case law from
other jurisdictions and the principle that "individual liability is
appropriate when an intentional tort is alleged and proven."
The court reversed on the second issue; namely, did the payee prove
that the bookkeeper defrauded it? The court held that the payee failed
to meet its burden of showing all elements of fraud. As to one of the
checks, there was no evidence showing that the bookkeeper knew that
there were insufficient funds in the account when she signed the check.
As to the other check, the payee did not justifiably rely on the
bookkeeper's signature. She acted as a mere "scribe" when the general
manager, in the payee's presence, ordered her to write that check.
Ordinarily, of course, agents are liable for misrepresentations made on
the principal's behalf, but here the focus was on the payee's reliance
on the bookkeeper's "low-ranking position in the corporation."
Criminal Law
Multiplicity - Multiple Perjury Charges Arising from
False Testimony at Preliminary Hearing
State v. Warren,
No. 99-0129-CR (filed 29 June 1999) (ordered published 21 July 1999)
A jury convicted the defendant of two counts of perjury contrary to
Wis. Stat. section
946.31(1)(c) in connection with testimony he gave at the criminal
preliminary hearing of one David Brown. The defendant's testimony
incriminated Brown in a bank robbery and potentially qualified the
defendant for a reward. During that preliminary hearing the defendant
gave false testimony as to whether he and Brown had driven to the city
where the robbery occurred to case the bank and whether, subsequent to
the robbery, he helped Brown hide the proceeds.
The issue before the court of appeals was whether charging the
defendant with multiple counts of perjury based on testimony given to a
circuit judge in the same proceeding violates the rule against
multiplicity. In a decision authored by Chief Judge Cane, the appellate
court answered in the negative. Applying Wisconsin's well-settled,
two-part multiplicity test, the court concluded that the two perjury
counts were not multiplicitous. While the two charges against the
defendant were identical in law, they were different in fact. Though
closely linked, each conviction required proof of an additional fact
that the other did not. Further, each offense required a "new volitional
departure" in the defendant's conduct. The court of appeals further
concluded that the Legislature intended to permit multiple counts of
perjury occurring during the same proceeding.
Criminal Procedure
Interrogation - Sixth Amendment Right to Counsel
State v. Hornung,
No. 99-0300-CR (filed 20 July 1999) (ordered published 17 Aug. 1999)
The state filed a criminal complaint and warrant against the
defendant for sexual exploitation of a child and second-degree sexual
assault. The defendant subsequently surrendered to his probation agent.
The critical issue on appeal was whether statements he subsequently gave
to police were obtained in violation of his Sixth Amendment right to
counsel.
Under the Sixth Amendment, a person formally charged with a crime has
a right to counsel at every critical state of the proceeding. The Sixth
Amendment right attaches when a warrant is issued or a complaint filed.
However, once the Sixth Amendment right to counsel has attached, a
criminal defendant must seek to exercise this right. The attachment of
the right to counsel, coupled with a criminal defendant's assertion of
this right, prohibits the government from initiating any contact or
interrogation concerning the charged crime, and any subsequent waivers
by a defendant during a police-initiated contact or interrogation are
deemed invalid. Because in this case the defendant had already been
charged with a complaint and warrant, the Sixth Amendment had attached.
The issue was whether the defendant effectively asserted his Sixth
Amendment right to counsel, thereby triggering its protections.
In a decision authored by Chief Judge Cane, the court of appeals
concluded that the defendant's assertion of his Sixth Amendment right to
counsel was evident throughout the officer's interrogation of the
defendant. The defendant initially asked if the officer thought he
should have an attorney and it was undisputed that the defendant asked
if he could call a specific lawyer, whom the officer knew to be a
criminal defense attorney. Given these circumstances, said the court, a
reasonable officer should have known that the defendant's Sixth
Amendment right to counsel was sufficiently asserted when the defendant
asked to call the attorney. Thereafter, all questioning regarding the
charges should have ceased. As the defendant's Sixth Amendment right to
counsel was effectively triggered by its attachment and subsequent
assertion, any subsequent and inculpatory statements or fruits thereof
should have been suppressed as violative of the defendant's
constitutional rights.
Preliminary Breath Tests - Admissibility of PBT Results
in Nonmotor Vehicle Cases
State v. Doerr,
No. 98-1047 (filed 28 July 1999) (ordered published 17 Aug. 1999)
The defendant was convicted by a jury of two counts of battery to a
police officer and one count of resisting an officer. These charges
arose after a deputy sheriff had pulled the defendant's vehicle over
after observing "erratic driving behavior." During the course of the
field investigation the officer administered a preliminary breath test
(PBT) to measure the defendant's blood alcohol level. That test showed a
blood alcohol level of 0.21 percent.
Among the issues on appeal was whether the trial court erred by
admitting evidence of the PBT at the defendant's trial on the battery
and resisting charges without any corresponding expert testimony. Wis.
Stat. section
343.303 prohibits the use of the results of a PBT in any action or
proceeding except for challenges to probable cause to arrest or the
necessity of a chemical test. In this case the circuit court concluded
that the section
343.303 bar on the evidentiary use of PBT results is limited to
motor vehicle violations and that the test results could be used as
evidence at the trial on battery and resisting charges which are not
motor vehicle violations. The court of appeals, in a decision authored
by Judge Anderson, agreed with this conclusion.
However, the court concluded that prosecutors who wish to rely on PBT
test results in nonmotor vehicle cases are required to present evidence
of the device's scientific accuracy and reliability and prove compliance
with accepted scientific methods as a foundation for the admission of
the test results.
Employment Law
Police Officers - "Just Cause" Hearing for Demotion
of Promoted Police Officers Serving in Probationary Capacity
Antisdel v. Oak Creek
Police and Fire Commission, No. 97-3818 (filed 20 July 1999)
(ordered published 17 Aug. 1999)
The plaintiff is a police officer. In 1996 he was promoted to the
rank of sergeant. A memorandum that the police chief sent to him at the
time of his promotion told the plaintiff that he was being promoted to
the position of sergeant and that, upon completion of a one-year
probationary period, he would receive a permanent appointment as
sergeant. During that one-year time a new police chief demoted the
plaintiff back to his original rank of police officer. The plaintiff
sought a "just cause" hearing under Wis. Stat. section
62.13(5)(em) to contest the demotion. The police and fire commission
refused to grant him a hearing. The plaintiff sought review in the
circuit court, which granted summary judgment to the defendants and
dismissed the plaintiff's action.
In a decision authored by Judge Fine, the court of appeals reversed
the circuit court. The only issue before the appellate court was whether
the police and fire commission acted under an incorrect theory of law in
denying the plaintiff a hearing under section
62.13(5)(em). It concluded that any promotion the plaintiff received
could not be taken away without the "just cause" hearing required by the
statute cited above. Any other rule, said the court, would give to the
appointing authority the limitless power to circumvent the legislatively
created "just cause" protection against arbitrary action by simply
making every promotion temporary or probationary or otherwise terminable
at will.
Judge Shudson filed a concurring opinion. Judge Curley dissented.
Family Law
Termination of Parental Rights - Abandonment of Child -
Appeals of TPR Decisions
Carla B. v. Timothy
N., No. 99-0853 (filed 9 June 1999) (ordered published 21 July
1999)
The circuit court granted Carla's petition to terminate the rights of
Timothy to their daughter Jessica on the ground of abandonment. Timothy
filed a notice of intent to appeal within the 30-day period prescribed
by statute, but failed to serve a copy of the notice on Carla and her
counsel, as required by Wis. Stat. section rule
809.107(2). The court of appeals began its decision in this case by
addressing the threshold question of whether the lack of service of
notice of intent to appeal deprived the court of appeals of jurisdiction
to hear the case.
In a decision authored by Judge Brown, the court concluded that in
TPR cases the filing of the notice of intent to appeal confers
jurisdiction on the court of appeals. In a TPR appeal, a person must
file a notice of intent to appeal prior to the notice of appeal. While
in other civil cases it is the timely filing of a notice of appeal that
confers jurisdiction on the court of appeals, in a TPR case it is the
filing of the notice of intent to appeal. Service does not initiate the
appeal - filing does. Accordingly, the court held that even though the
notice of intent to appeal was not properly served in this case, the
cause was legitimately before it.
Turning to the merits of the termination, Timothy claimed that the
circuit court erred in finding sufficient evidence of abandonment
because he had been prohibited by a family court order from visitation
with his daughter. Under Wis. Stat. section
48.415(1)(a)3, abandonment may be established by showing that "the
child has been left by the parent with any person, the parent knows or
could discover the whereabouts of the child, and the parent has failed
to visit or communicate with the child for a period of six months or
longer." The statute further provides that the time period referred to
above shall not include periods during which the parent has been
prohibited by judicial order from visiting or communicating with the
child.
The appellate court concluded that a court order prohibiting
visitation, but allowing communication, does not excuse a complete lack
of contact. Thus, Timothy's failure to visit Jessica, if it indeed was a
product of the judicial order, cannot be counted in computing the time
period referred to above. But he was not prohibited from communicating
with his daughter and he could have done so to maintain contact. The
time in which he did not communicate with her can and does count in a
determination of abandonment.
In this case there was ample support in the record for the circuit
court to find abandonment. Timothy has not seen or spoken with his
daughter since 1993. Only after Carla petitioned to terminate his
parental rights in 1997 did he begin to write to his daughter. Since
then, he has sent her five or six letters. Said the court of appeals,
the record supports the finding that sufficient grounds for abandonment
were shown.
Regarding Timothy's argument that he was judicially foreclosed from
visiting his daughter, the court noted that the original family court
order did not actually deny visitation, but instead created a condition
precedent that Timothy had to fulfill before he could exercise
visitation. The family court order allowed Timothy supervised visitation
if he saw a therapist and made such progress that the therapist could
opine how visitation between Timothy and Jessica would not be harmful to
Jessica. While Timothy testified that he did seek counseling after the
divorce, he quit some time in 1994. The appellate court was confident
that Timothy's abandonment of therapy was evidence of his abandoning his
daughter as well.
Lemon Law
"Comparable New Motor Vehicle" - Alternative Remedies
Dussault v. Chrysler
Corp., No. 98-0744 (filed 7 July 1999) (ordered published 17
Aug. 1999)
This decision, written by Judge Snyder, involved two "novel" issues
under Wisconsin's lemon law. First, the court of appeals held that the
phrase "comparable motor vehicle" under section
218.015(2)(b) of the Wisconsin Statutes is ambiguous. Since the
lemon law's purpose is to restore the consumer to the position she or he
was in at the time of purchase, the court held that a manufacturer could
replace a "nonconforming demonstrator vehicle" with a "late-model
demonstrator with comparable features."
The second issue concerned the consumer's right to pursue an
alternative remedy under section
218.015(2)(a) of the Wisconsin Statutes. The court held that a para.
(2)(a) remedy is available only where the consumer is unable to
establish a "reasonable attempt to repair" the vehicle. Since the
plaintiff had established a "reasonable attempt to repair," she was left
with her remedies under para. (2)(b). (The court also addressed several
other issues that are case-specific and raise no "novel" issues of
law.)
Visible Defects - Accepting Delivery
Dieter v. Chrysler
Corp., No. 98-0958 (filed 21 July 1999) (ordered published 17
Aug. 1999)
The plaintiffs purchased a truck that was scratched when some
accessories were installed. They complained about the scratches and at
first refused delivery until the dealership promised to repair them.
When the attempted repairs failed to satisfy them, the plaintiffs
demanded that the truck be repurchased based on the scratched paint job
and other problems. The trial court granted summary judgment to
Chrysler.
The court of appeals, in an opinion written by Judge Brown, affirmed.
At the outset, the court ruled that Chrysler was "dead wrong" when it
argued that "Chrysler is not liable for the dealer's negligent
installation of after-market accessories." There was, however, a more
critical issue: "Is the Lemon Law applicable when the consumer is aware
of vehicle paint defects before the actual delivery of the vehicle?" The
court held that the lemon law is not applicable because it "covers
defects the consumer became aware of subsequent to delivery." Here the
consumers had the opportunity to refuse delivery and pursue a refund of
their deposit. Although the statute nowhere mentions consumer awareness
of defects, "the whole point of the Lemon Law is to protect consumers
from hidden defects in their new vehicles." The court was unpersuaded
that its holding would create a "public policy nightmare" in which
manufacturers gutted the lemon law by providing notice of all defects,
large and small. In this case, the consumers' remedy is with the dealer
who promised to fix the scratches.
Motor Vehicle Law
OWI Forfeiture Action - Mandatory Court Appearance -
Timeliness of Jury Demand
City of Fond du Lac v.
Kaehne, No. 98-3619 (filed 7 July 1999) (ordered published 17
Aug. 1999)
Wis. Stat. section
66.12(1)(b) provides that "a court appearance is required for a
violation of a local ordinance in conformity with the [state OWI
statute]." In this case the defendant claimed that because he pled not
guilty to the city OWI charge by mail, and because this procedure is
contrary to the statute quoted above, his not guilty plea was improperly
entered and the 10-day period in which to request a jury trial had
therefore not yet begun to run.
In a decision authored by Judge Brown, the court of appeals held
that, while it is true that a court appearance is necessary under the
statute, a court appearance in a civil action may be made by letter.
Since this is a civil case, the defendant's not guilty plea by letter to
the court constituted an appearance and his 10 days for demanding a jury
trial commenced running when the court received the letter. Accordingly,
his letter requesting a jury trial filed after that 10-day period was
untimely.
Hit-and-Run - Premises Held Open to the Public -
Circuit Court Administration Fee
State v. Carter,
No. 98-1688-CR (filed 30 June 1999) (ordered published 21 July 1999)
The defendant was convicted of hit-and-run involving death, contrary
to Wis. Stat. section
346.67(1). This statute applies "upon all premises held out to the
public for use of their motor vehicles." See Wis. Stat. §
346.66. The accident in this case occurred on the lot of a closed
gas station, and the question before the court was whether these were
premises held out for public use such that the hit-and-run statute could
be enforced there.
The court of appeals concluded that there was sufficient evidence
that the property in question was held out for public use. The gas
station is bordered by two city streets and abuts an alley in the rear.
As such, it is easily accessed by the public. Although there were "no
parking" signs on the premises, there were not any signs prohibiting
trespassing or passing through the lot. Nor had the owner taken steps,
such as fencing, to keep the public off the property. Nor was there
evidence that the owner had ever towed any vehicle from the property. In
addition, the owner had posted a "for sale" sign on the premises, making
it reasonable to infer that the public was welcomed or invited to enter
the premises and inspect the property. The court concluded that there
was sufficient evidence indicating that any resident of the community
with a driver's license and access to a motor vehicle could use the
parking lot.
Another issue on appeal was whether the circuit court properly
imposed a court administration fee under section
814.60(1). This statute provides that, in a criminal action, the
clerk of circuit court shall collect a fee of $20 for all necessary
filing, entering, or recording, to be paid by the defendant when
judgment is entered against him or her. The issue was whether the
statute allows for the imposition of a $20 fee on a per count basis or
whether, as the defendant argued, the clerk may impose only a single $20
fee even if the case involves multiple counts. The court of appeals
concluded that the purpose of the statute is to compensate the clerk of
court for the administrative costs associated with processing a criminal
action. Because each charged count requires filing, entering, and
recording - separate and distinct from other counts charged - the proper
interpretation of section
814.60(1) permits a separate $20 fee for each count in the case.
Sexually Violent Persons
Chapter 980 Commitment Proceedings -
Competency of Respondent to Proceed
State v. Smith,
No. 99-0477 (filed 30 July 1999) (ordered published 17 Aug. 1999)
The issue before the court of appeals in this case was whether a
person who is incompetent to proceed may be tried in a Wis. Stat.
chapter 980 proceeding. Chapter
980 is Wisconsin's sex predator statute. The state argued that,
although trying an incompetent for a crime violates the Fourteenth
Amendment's due process clause, chapter 980 is a civil proceeding in the
nature of a civil commitment and the right not to be tried if
incompetent has never been extended to prohibit involuntary commitments.
The state also alleged that the Legislature never intended to extend the
right to be competent at trial to a chapter 980 respondent.
In a decision authored by Judge Hoover, the court of appeals
concluded that a chapter 980 respondent must be competent in order to be
tried. Section
980.05(1m) provides that all constitutional rights available to a
defendant in a criminal proceeding are available to the chapter 980
respondent. By this provision, concluded the court, the Legislature has
extended the competency right to chapter 980 respondents.
The court further concluded that there must be a process to afford
the competency right to chapter 980 respondents. Wis. Stat. section
971.14 sets forth in detail the procedures for circuit courts to
follow when there is reason to doubt a criminal defendant's competency
to proceed at trial, conviction, or sentencing. The court of appeals
held that a circuit court shall adapt section 971.14 to the extent
practicable when competency issues arise in chapter 980 proceedings.
Torts
Medical Malpractice - Legal Guardians - Loss of Society and
Companionship
Conant v. Physicians Plus
Medical Group Inc., No. 98-3285 (filed 1 July 1999) (ordered
published 17 Aug. 1999)
Timothy, a minor, suffered severe brain damage from dehydration
caused by repeated vomiting. The complaint alleged that the vomiting was
due to negligent medical care and treatment. Timothy's legal guardians,
his grandparents, sued the alleged tortfeasors for their loss of society
and companionship as well as for certain costs incurred and lost income.
The circuit court dismissed the grandparents' claims.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. "Neither Wisconsin courts nor the Legislature ... has
permitted recovery for loss of society and companionship by those
outside the nuclear family." Nor did the grandparents' status as legal
guardians change this result. The court explored the differences between
the legal guardians' duty to the ward and the parents' duty toward their
child. Simply put, they are not equivalent. (The opinion sets forth the
distinctions.)
As to the claims for lost income and other costs, the court observed
that the issue was not whether the legal guardians could recover such
damages, but whether they could sue in their own names. No authority
supported such an independent claim. Thus, the grandparents/legal
guardians could "not maintain an action in their own names to recover
their expenses in providing care and transportation for Timothy
following his injuries." Timothy could, however, recover those expenses
from the defendants, including the value of medical and nursing
services, and the recovery "may not be reduced by the fact that the
services were gratuitously paid for or provided by a collateral
source."
Recreational Immunity - No "Good Samaritan" Exception
Schultz v. Grinnel Mutual
Reinsurance Corp., No. 98-3466 (filed 22 July 1999) (ordered
published 17 Aug. 1999)
While attending the county fair, Michael Schultz stopped to get a
drink of water when he saw a "1,100-pound steer running through the
fairgrounds." Schultz was injured while attempting to capture the
animal. He later sued the operator of the fair, and others, for
negligence. The trial court granted summary judgment dismissing the
fair's operator under the recreational immunity statute, section
895.52 of the Wisconsin Statutes.
The court of appeals, in an opinion written by Judge Dykman,
affirmed. Schultz was clearly engaged in recreational activity
(attendance at a fair) when he was hurt. The case is most noteworthy,
however, for the court's rejection of a "good samaritan" exception that
would permit "rescuers" to recover for their injuries. Schultz's
arguments exceeded the court's error-correcting function and
necessitated a statutory amendment.
Exculpatory Contracts - Negligence - Recklessness -
Loss of Consortium
Werdehoff v. General Star
Indemnity Co., No. 98-1932 (filed 21 July 1999) (ordered
published 17 Aug. 1999)
The plaintiffs were injured while racing motorcycles at the Road
America racetrack. Along with their wives, the injured racers alleged
that the defendants were negligent and had violated the safe place
statute, section
101.11 of the Wisconsin Statutes. The complaint also alleged
reckless behavior and intentional disregard of the plaintiffs' rights.
The trial court dismissed the complaint based on exculpatory contracts
signed before the race.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed in an opinion that reached three issues. First, the exculpatory
contracts validly released the defendants from liability for ordinary
negligence, including the safe place claim. The court carefully compared
the language in the Road America release to similar language addressed
in recent case law governing exculpatory contracts. The contract was
clear as to its "terms" and "application." One could reasonably assume
that negligent maintenance of the track fell within its sweep. Second,
under prior case law the exculpatory contract could not release the
defendants from liability sounding in recklessness. "[O]ne fair reading
of the evidence is that the defendants allowed the race to go on with
knowledge that the dangerous condition [on the track] still existed."
Since the plaintiffs raised disputed issues of fact about whether the
defendants behaved recklessly, the case was remanded for trial. Finally,
prior case law clearly established that the spouses' claims for loss of
consortium could not be defeated by the exculpatory contracts.
Worker's Compensation
Occupational Disease - Date of Injury - Medical Expenses
Incurred Before Date of Injury
United Wisconsin Ins. Co.
v. Labor and Industry Review Commission, No. 97-3776 (filed 20
July 1999) (ordered published 17 Aug. 1999)
The employee filed a hearing application with the Labor and Industry
Review Commission (LIRC) alleging that she sustained an occupational
disease, carpal tunnel syndrome, arising out of her employment. She
claimed compensation for lost wages and payment for medical expenses.
She alleged that her date of injury was March 25, 1994, the date she
first experienced carpal tunnel syndrome symptoms.
Following a hearing, the administrative law judge (ALJ) concluded
that the employee sustained occupational carpal tunnel syndrome and that
her date of injury was Aug. 2, 1994, the first day she lost time from
work due to her medical condition. The ALJ also found that the
compensation carrier was liable for compensation and medical expenses,
including those expenses incurred prior to Aug. 2, 1994. The ALJ's
decision was affirmed by the LIRC and by the circuit court.
In a decision authored by Judge Wedemeyer, the court of appeals
affirmed. In resolving this case the court considered both Wis. Stat. section
102.01(2)(g), which sets the date of injury in occupational disease
cases, and section
102.42(1), which provides that medical expenses incurred before an
employee knows that he or she is experiencing a work-related injury are
compensable. Reading the statutes together, the court concluded that the
only reasonable interpretation is that medical expenses in occupational
disease cases are not compensable until the date of injury. But, once a
date of injury is established, any medical expenses associated with the
work-related injury, even if incurred before the technical date of
injury, are compensable.
Judge Schudson filed a concurring opinion.
Prof. Daniel D. Blinka and Prof.
Thomas J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W. Wisconsin
Ave., Milwaukee, WI 53233, (414) 288-7090.
Wisconsin Lawyer
