STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JANET H GOMEZ, Applicant
CITY OF MARSHFIELD POLICE DEPARTMENT, Employer
THE DEPARTMENT OF EMPLOYEE TRUST FUNDS
WORKER'S COMPENSATION DECISION
Claim No. 1995052708
An administrative law judge (ALJ) for the Worker's Compensation 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 order in that decision as its own, except that it makes the following modifications:
1. The second paragraph of the preliminary recitals at page 2 of the ALJ's decision is deleted and the following substituted therefor:
"At issue is the applicant's entitlement to duty disability benefits under Wis. Stat. § 40.65."
2. The second sentence of the seventh (last) paragraph of the ALJ's Findings of Fact and Conclusions of Law is modified by deleting ", effective her last day of work at the respondent".
3. The first paragraph of the ALJ's Interlocutory Order is deleted and the following substituted therefore:
"The application is remanded to the Department of Employee Trust Funds for payment of duty disability benefits to the applicant, Janet H. Gomez, consistent with the law."
ORDER
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed September 27, 2000
gomezja.wmd : 101 : 3 ND § 8.32
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The ALJ found that the injured worker qualified for duty disability benefits because an injury forced her retirement from her job as a law enforcement officer/patrolman. The department of employee trust fund (DETF) appeals, raising what it describes as only technical concerns. To date, neither the applicant nor the employer has responded to DETF's petition; although the employer indicated in a letter to DEFT dated August 15, 2000 that it did not intend to appeal the ALJ's decision.
DETF's first assertion on appeal is that the ALJ's authority under Wis. Stat. § 40.65(2)(b)3 is limited to simply determining eligibility for duty disability benefits based on the submitted medical reports. Determining the actual effective date for benefits, DETF argues, is reserved to DETF. It cites a series of administrative rules, to that effect. In addition, Wis. Stat. § 40.65(3), provides that the Wisconsin retirement board has the power to fix effective date and amount of duty disability benefits.
Given the limited grant of authority to department of workforce development ALJs and the commission under Wis. Stat. § 40.65(2)(b)(3), and the reservation of authority regarding the effective date and amount of duty disability to the "retirement board" under Wis. Stat. § 40.65(3), the commission agrees that DWD ALJs have no authority to decide the effective date of duty disability benefits. The commission concludes that this is true, even where the employer and the applicant stipulate to facts supporting a finding on that issue, and DETF does not appear before the ALJ to protect its authority.
DETF next claims that the ALJ incorrectly ordered payment of the benefits by "the respondent and the Department of Employee Trust Funds," when only DETF is obliged to pay duty disability under Wis. Stat. § 40.65. The commission has modified the ALJ's order to require payment by only DETF.
The final issue raise by DETF involves some dicta concerning a job as a dispatcher that may have been available to the applicant, but which the ALJ concluded was never actually offered to the applicant after she could no longer work as a law enforcement officer/patrolman. Because the applicant was forced to retire from her patrolman job because of the work injury, she is entitled to duty disability under Wis. Stat. § 40.65(4)(c)1. The ALJ was technically not required to consider pay or position reduction, or diminished promotional opportunities, under Wis. Stat. § 40.65(4)(c) 2 and 3.
Nonetheless, there was considerable testimony and evidence offered about the dispatcher position at the hearing. DETF (who did not appear at the hearing) is not in a strong position to challenge the ALJ's conclusion that -- given the degree to which the dispatcher job was the subject of testimony, exhibits and contention at the hearing -- she should address the issue in her decision. Indeed, the availability of another position seems at least tangentially related to the issue of whether the applicant's retirement was forced by the injury. In any event, alternative findings such as those made by the ALJ on this issue may always be subject to the criticism that they are dicta or merely advisory. Nonetheless, such findings are often the most satisfactory way to resolve an issue; in any event, the commission declines to amend the ALJ's decision on this point.
cc: ATTORNEY THOMAS M DOMER
SHNEIDMAN MYERS
ATTORNEY RUSSELL W WILSON
RUDER WARE & MICHLER
ROBERT F WEBER
CHIEF COUNSEL
DEPARTMENT OF EMPLOYEE TRUST FUNDS
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