What's New at LIRC and the LIRC Website

January 23, 2017 -- Farewell to Commissioner Jordahl

Commissioner Bill Jordahl has accepted a new position as the Executive Assistant to the Chair of the Public Service Commission where he will be able to take advantage of his extensive knowledge of the utility industry. Commissioner Jordahl served the state as a commissioner for LIRC since 2013. His last day with LIRC was January 20, 2017.

Important Notice - Petitions to LIRC

Pursuant to 2015 Wis. Act 334 (effective April 3, 2016), petitions for commission review of Department of Workforce Development (DWD) unemployment insurance (UI) appeal tribunal decisions must be filed with the commission and can no longer be filed with the DWD hearing offices. A petition for review may be filed with the commission in any of the following ways:

A petition for review may not be filed by telephone or email. A petition for review must be received by the commission or postmarked within 21 days after the DWD appeal tribunal decision was mailed to the party’s last known address or electronically delivered. Wis. Stat. § 108.09(6)(a).

July 19, 2016 -- Supreme Court to Hear UI Case

The Wisconsin Supreme Court has accepted a petition for review in Operton v. LIRC, a case involving the interpretation of the new “substantial fault” disqualification provision of the unemployment insurance law. The court’s summary of the case is available at https://www.wicourts.gov/news/view.jsp?id=819.

June 1, 2016 -- New Look for Commission's Decisions

In June 2016 the commission will be rolling out a new decision format. Some of the changes are necessary due to recent law changes, but other changes are designed to make the decisions more readable for parties and to protect the confidentiality of personal information. The commission was guided in its revisions by various research and sources, such as http://www.ca7.uscourts.gov/rules/painting_with_print.pdf It has been more than a decade since the format of the commission’s decisions was reviewed and updated. We appreciate your patience as we transition to the new format.

March 1, 2016 -- General Counsel Appointed

Governor Walker has appointed Maria Gonzalez Knavel to the position of general counsel for the commission, effective March 1, 2016. Attorney Gonzalez Knavel is a retired partner and health care lawyer with Foley & Lardner LLP where she counseled health care clients on compliance issues, corporate matters and general operational issues of health care entities (including providers and medical device manufacturers), and Medicare/Medicaid reimbursement.  The law providing for a gubernatorial appointment of the commission’s general counsel was created in 2015 Wis. Act 55, the state budget bill. Tracey Schwalbe, who served as general counsel since 2010, will continue to serve the commission as deputy general counsel.

February 17, 2016 -- Court of Appeals Dismisses DWD's lawsuits against LIRC

The Wisconsin Court of Appeals today issued its decision in DWD v. LIRC (Hogan, et al.), 2014AP2928, etc., concerning the competency of a court to proceed in an improperly venued appeal of a LIRC decision. The Wisconsin Department of Workforce Development (DWD) brought several lawsuits against LIRC, UI benefit claimants, and their employers challenging LIRC’s findings that the claimants were eligible for UI benefits. DWD brought the cases in Kenosha County where only one defendant resided. The circuit court dismissed the cases with no connection to Kenosha County, ruling that this venue defect deprived it of competence to proceed. DWD appealed to the court of appeals. The appellate court held that the venue provisions of the statute are central to the statutory scheme, and summarized the following relevant principles: failure to comply with the venue provisions deprives the court of competency to proceed; default is the appropriate remedy when a court lacks competence to proceed, although a court may transfer a case to a proper venue so long as the error arose from a good faith error; and the transfer tolls the time limits for filing and allows the case to proceed so long as it was timely filed initially. In this case, the court found that it was apparent that DWD had no good faith and belief that Kenosha County was the proper venue and, therefore, the circuit court did not have competence to proceed and properly dismissed the cases.

February 4, 2016 -- Court of Appeals Affirms LIRC on UI Fraud Law

The Wisconsin Court of Appeals recently affirmed the commission’s decision in DWD v. LIRC (Wallenkamp), 2015AP716 concerning concealment. The Wisconsin Department of Workforce Development (DWD) brought several lawsuits against LIRC challenging LIRC’s findings of no concealment by UI benefit claimants. LIRC found that the claimants had made honest mistakes and did not intend to mislead or defraud the department. The circuit courts agreed with LIRC that DWD had failed to prove that the claimants intended to conceal information when claiming benefits. DWD appealed the Wallenkamp circuit court decision to the court of appeals. The appellate court found that LIRC’s decision was supported by substantial and credible evidence, and that LIRC did not misinterpret the statutory definition of conceal, as had been argued by DWD: “A determination that a claimant did not intend to mislead or defraud the DWD necessarily incorporates a determination that the claimant did not intend to seek unentitled benefits. LIRC’s interpretation and application of the statute does not alter the statute’s meaning and thus is reasonable.”

August 11, 2015 -- ER Digest

The 2015 Edition of the Equal Rights Decision Digest is now available online. This edition is updated with summaries of relevant LIRC and court decisions issued during calendar year 2014.

July 24, 2015 – Briefing Schedule Changes for Worker’s Compensation Cases.

In response to requests from attorneys, the commission has changed its regular briefing schedule for worker’s compensation cases. Beginning with briefing schedules first issued on July 27, 2015, petitioners will have 30 days to file a brief, respondents will have 30 days to file a response brief, and petitioners will have 10 days to file a reply brief. No extensions will be granted to the standard 30-30-10 briefing schedule except in response to written requests for extensions and only for extraordinary circumstances.

July 23, 2015 – Courts Disagree with LIRC in Social Security Disability Insurance Cases.

Several appeals came to LIRC that involved interpretation of a new statute, § 108.04(12)(f)1., that contained a disqualification provision for UI claimants who also received SSDI benefits. LIRC found the statutory language to be clear and unambiguous and applied the language literally to disqualify claimants from UI benefits in the week they actually received the SSDI benefit payment. Three circuit courts have disagreed with LIRC’s interpretation and reversed LIRC’s decisions. The courts agreed with the Department of Workforce Development’s interpretation of the provision that the statute disqualified applicants for an entire month of UI benefits if they received SSDI benefits in the month. See Wisconsin Dep’t of Workforce Dev. v. Wisconsin Labor & Indus. Comm’n & Morse, Case No. 14CV752 (Wis. Cir. Ct. Washington Cnty. July 7, 2015); Wisconsin Dep’t of Workforce Dev. v. Wisconsin Labor & Indus. Comm’n & Bullock, Case No. 14CV3249 (Wis. Cir. Ct. Dane Cnty. May 27, 2015); and Wisconsin Dep’t of Workforce Dev. v. Wisconsin Labor & Indus. Comm’n & Plotz, Case No. 14CV308 (Wis. Cir. Ct. Marinette Cnty. July 23, 2015, bench decision). In light of the three circuit court decisions, and the fact that the DWD has proposed a law change to the UI Advisory Council to clarify the language of the statute, the commission has decided to withdraw its appeal of the Bullock case in the court of appeals.

July 22, 2015 -- 2014 Commission Statistics

2014 Commission Statistics are now available on website and can be found at http://lirc.wisconsin.gov/pdf/lrc_14st.pdf

July 16, 2015 -- Chairperson Laurie McCallum presented a “2015 LIRC Case Law Update” at the 13th Annual Worker’s Compensation Seminar.

The seminar was hosted by the Wisconsin Association of Worker’s Compensation Attorneys Inc. (WAWCA), a group of legal practitioners representing both applicants and respondent employers and insurance companies. All of the commissioners and several commission review attorneys also attended the conference.

June 9, 2015 -- Dave Falstad Confirmed as Commissioner by Wisconsin Senate.

The Wisconsin Senate voted 33-0 to confirm Dave Falstad as a commissioner to serve a term ending March 1, 2021.

June 4, 2015 -- Dave Falstad’s Re-Appointment as Commissioner Moves Forward.

The Wisconsin Senate Committee on Labor and Government Reform recommended confirmation of Dave Falstad by a vote of 5 Ayes, 0 Noes. The appointment next goes to the full Senate for approval.

May 22, 2015 -- LIRC Again Affirmed in UI Concealment Case.

The Sheboygan County Circuit Court affirmed LIRC in a case brought by DWD challenging LIRC’s finding of no concealment by the UI benefit claimant. The court applied great weight deference to LIRC’s decision and affirmed LIRC’s finding that the claimant made an honest mistake when claiming benefits. DWD v. LIRC and Eric Van De Loo, Case No. 14CV547 (Wis. Cir. Ct. Sheboygan Cnty. May 21, 2015). See other concealment cases that affirmed LIRC under April 9, 2015 news item.

April 24, 2015 -- New Website Launched!

The Commission first established a website with a searchable database of its significant decisions and summaries of court cases in the mid-1990s. Over the years, LIRC continued to organize its decisions on the website according to the UI Decision Digest, the Worker's Compensation Handbook by John D. Neal and Joseph Danas, Jr., and the Equal Rights Decision Digest. The Commission has now updated the website to make it more user-friendly and responsive on mobile devices. We thank Dave Nance for developing the website and maintaining it for the past 20 years, our new website developer, Adam Erickson, and the web team at the Department of Workforce Development for their time and creativity on this project!

April 9, 2015 -- LIRC Again Affirmed in UI Concealment Case.

The Wisconsin Department of Workforce Development (DWD) brought several lawsuits against LIRC challenging LIRC’s findings of no concealment by UI benefit claimants. LIRC found that the claimants made honest mistakes and did not intend to conceal information from the department. In all of the circuit court decisions to date, the courts have agreed with LIRC that DWD failed to prove that the claimants intended to conceal information when claiming benefits. Most recently, in DWD v. LIRC and Anita Shaw, Case No. 14CV5910 (Wis. Cir. Ct. Milwaukee Cnty. Apr. 9, 2015), Milwaukee County Circuit Court Judge John J. DiMotto also affirmed LIRC, holding that LIRC reasonably concluded that an “honest mistake” does not constitute concealment. See other circuit court decisions upholding LIRC’s findings of no concealment:

March 23, 2015 -- Dave Falstad reappointed as Commissioner.

On March 23, Dave Falstad was appointed by Governor Walker to another six-year term as a commissioner. The appointment must be confirmed by the Wisconsin Senate. Dave served as a commissioner from 1995 to 2007, and as Chairperson from 1998 to 2004. He was most recently appointed to complete the six-year term of former Commission Chairperson, Bob Glaser, who retired in 2013.

March 16, 2015 -- LIRC Again Affirmed on 2013 Wis. Act 20 Applicability Date.

The Circuit Court for Shawano-Menominee County, Br. II, Shawano County Division, in DWD v. LIRC and Tourtillott, Case No. 14CV230 (Wis. Cir. Ct. Shawano-Menominee Cnty. Mar. 16, 2015), affirmed LIRC’s interpretation of the applicability date provision of certain law changes as applying to determinations issued or appealed as of January 5, 2014. The court rejected arguments by the Department of Workforce Development (DWD) that the LIRC interpretation was not reasonable, and stated that the LIRC interpretation was more reasonable than that of the DWD. The DWD brought several lawsuits against LIRC regarding this applicability date interpretation. In all of the circuit court decisions to date, the courts have agreed that LIRC applied the new law correctly in the cases. See other circuit court decisions upholding LIRC’s application of the law:

March 12, 2015 -- Laurie McCallum re-elected chairperson.

On March 12, the commissioners voted unanimously to re-elect Laurie McCallum to another two-year term as Chairperson of the Commission. She was first elected to be the Chairperson in 2013. The Chairperson serves as the head of the agency under the statutes and rules of the Commission, subject to the policies established by the Commission. Laurie previously served as the Chairperson of the Wisconsin Personnel Commission for 13 years.

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