SUSAN M RADEMACHER, Complainant
ALLESEE ORTHODONTIC APPLIANCES INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed
June 7, 2013
rademsu . rsd : 107 : 5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ Robert Glaser, Commissioner
/s/ C. William Jordahl, Commissioner
The HCWPA, Wis. Stat. § 146.997, prohibits a health care facility or health care provider from taking disciplinary action against an employee for making a good-faith report about the facility's or provider's alleged non-compliance with the law or failure to meet standards for quality of health care provided. The terms health care provider and health care facility are defined in the statute. The definition of health care provider consists of a list of professional positions or organizations of professionals licensed or certified to provide health care. The list is exclusive; the statute contains no language suggesting that the list is intended to encompass any entity not specifically listed. The list includes a dentist licensed under Wis. Stat. ch. 447.
The complainant argues that the HCWPA applies to the respondent through its application to licensed dentists. The complainant describes the respondent as a dental laboratory that constructs appliances or restorations used or worn as substitutes for human teeth according to medical prescriptions it receives from licensed dentists or orthodontists. Clearly, the respondent itself is not a licensed dentist. In fact, according to the complainant, the respondent is specifically exempted from being a licensed dentist pursuant to Wis. Stat. § 447.03(f), which provides that no license or certificate under ch. 447 is required for a dental laboratory or dental laboratory technician to construct appliances or restorations for dentists upon specific directions from a dentist, for which the dentist is billed.
The complainant argues that the respondent ought to be deemed subject to the HCWPA because it performs certain functions that come within the description of dentistry in ch. 447. Specifically, Wis. Stat. § 447.01(8)(c), states that dentistry includes: "Directly or indirectly, by mail, carrier, person or any other method, furnishing, supplying, constructing, reproducing or repairing prosthetic dentures, bridges, appliances or other structures to be used or worn as substitutes for human teeth..." (1) Notwithstanding this, there are no grounds to expand the unambiguous definition of health care provider in the statute. The administrative law judge correctly summarized the commission's holding in Jasmin v. County of Douglas, ERD Case No. 200202481 (March 15, 2004):
The LIRC's decision in Jasmin stands for the proposition that the WHCWPA unambiguously defines the terms "health care facility" and "health care provider" and it would be improper to attempt to construe the terms to encompass entities that are not specifically mentioned in the WHCWPA.
The commission concludes that the complaint does not state a claim for relief under the HCWPA. The commission has also reviewed the administrative law judge's consideration of the complaint in light of other possible causes of action under Wis. Stat. § § 16.009, 46.90, 50.07 and 55.043, and is in agreement with the administrative law judge that the complaint, in addition to not stating a cause of action under the HCWPA, does not state a cause of action under any of those provisions.
cc:
Attorney William Rettko
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]