¶ 35. (dissenting). Once again, the majority has scoured an administrative decision for errors, and having found a harmless one, blows up the whole decision. I continue to disagree with this concept. See Deboer Transp., Inc. v. Swenson, 2010 WI App 54, ¶¶ 21-34, 324 Wis. 2d 485, 781 N.W.2d 709 (Dykman, EJ., dissenting). This time, the majority's methodology is to ignore what the Administrative Law Judge (ALJ) and LIRC did, and focus on something they said. Ultimately, the majority has not changed the result here. On remand, LIRC will excise the words the majority condemns, and conclude once again that Renz has prevailed because Cargill failed to rebut his prima facie case. All the majority has done is to create make-work and require LIRC and the trial court to waste time. That isn't necessary.
¶ 36. The majority spends much of its decision examining two sentences, one written by the ALJ, and one written by LIRC. The majority condemns the following, written by the ALJ: "Indeed, none of the named potential employers were told of [Renz's] age, experience or restrictions . . .." and the following, written by LIRC: "At a minimum, [a showing of an actual job available to Renz] requires the prospective employers to know all the relevant facts concerning the injured worker, and preferably that the injured worker ha[s] been referred to employers with specific job openings actually available to the worker."
¶ 37. I disagree that either of these sentences expands an employer's burden in an odd-lot case beyond that set forth in Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977), and Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29. At most, both sentences recognize that rebutting a prima facie showing of unemployability in an odd-lot case is difficult. An employer *233faced with odd-lot liability can prove the availability of a job or jobs by asking another employer whether it has a job for a person with the claimant's qualifications and disabilities and is told that such a job exists. Or, the employer can obtain job availabilities from other employers which match the applicant's qualifications and disabilities. Either route gets to the same result. The majority's view that one way is acceptable and the other forbidden is a distinction without a difference.
¶ 38. However, for the purpose of this dissent, I will accept the majority's conclusion that the ALJ and LIRC wrote illegal requirements in their decisions. What the majority doesn't recognize is that both the ALJ and LIRC wrote what they wrote after Cargill made its inquiry into available jobs and after a hearing. When the hearing finished, all evidence that both parties chose to produce had been produced.
¶ 39. The majority and Cargill say that Renz proved a prima facie case for odd-lot entitlement to worker's compensation benefits. So, according to the case law the majority apparently accepts, the burden shifted to Cargill to show that a job or jobs, suitable for Renz, existed. Balczewski, 76 Wis. 2d at 498, made that clear when the court said: "[W]e could. . . conclude that the employer has had the opportunity to assume its burden of proof of demonstrating that Berniece Balczewski could obtain regular and stable employment despite her industrial injuries and her inherent handicaps in the job market."1 Beecher, 273 Wis. 2d 136, ¶¶ 54-55, is no different:
*234Balczewski holds that this burden requires the employer to show that there is an actual job that the claimant can do.
Accordingly, we conclude that the burden that shifts from the claimant to the employer under Balczewski is a burden of persuasion, but only as to the sub-issue of whether a job exists that the claimant can do.
¶ 40. Since everyone seems to agree that Renz met his burden of proving odd-lot entitlement to benefits, the only question is whether Cargill rebutted Renz's evidence. LIRC and the ALJ both said "no" and both did so based on the credibility of Renz's expert vocational witness and the failure of Cargill's expert witness to produce evidence showing the availability of a job which Renz could do, considering his age, disability, training and education. Here's what the ALJ said:
[Cargill's expert] found purported, available jobs within a relevant labor market but with greater losses (45 to 85 percent) based upon both the [medical examiners'] restrictions; but, none of the positions appeared to offer him the select work required by them ....
Based upon the record, I find the applicant's vocational expert's opinion is credible in concluding he is permanently totally disabled.
(Emphasis added.)
¶ 41. I do not have to quote LIRC's views as to the credibility of Renz, his vocational expert and his doctor because the majority has quoted LIRC's findings as to this in ¶ 9 of its opinion. The same is true as to Cargill's expert vocational witness, though it is apparent to me that LIRC found that Cargill's expert produced nothing to rebut Renz's prima facie case: "The job listings Lemke [Cargill's witness] compiled universally fail to *235include a full description, or in most cases any description, of the specific physical requirements of the job." LIRC Decision at 2.
¶ 42. If the majority believes that Renz failed to prove a prima facie case of odd-lot permanent total disability, it would be helpful if the majority said that. If the majority believes that Lemke, Cargill's expert witness, produced anything to rebut Renz's prima facie case, it would be helpful if the majority said that. But it doesn't, and I take that as a concession that, except for the sentences the ALJ and LIRC wrote which the majority condemns, the majority would affirm the trial court, which affirmed LIRC.
¶ 43. Cargill's expert vocational witness was not hampered in the least by what the ALJ and LIRC said about how an employer must rebut a prima facie odd-lot eligibility case. The expert witness did her investigation long before, and without the benefit of what the ALJ and LIRC wrote. She testified, not knowing what the ALJ and LIRC would later write. She was in no way inhibited as to what she must do or could not do. All that came later.
¶ 44. My analysis of the testimony of Cargill's expert vocational witness is the same as LIRC's analysis, even without considering standard of review. I conclude that with a conceded prima facie case of odd-lot eligibility and nothing rebutting that prima facie case, the ultimate conclusion is obvious. I would affirm the trial court and LIRC.
¶ 45. That is as far as I need to go. But the majority also takes issue with more of LIRC's findings and conclusions. It cites LIRC's discussion of the adequacy of Renz's job search, though it concedes that this is not an issue here. It concludes: "[W]e fail to see how requiring disclosure of an injured claimant's age to a *236prospective employer in this context would assist the Department in taking into account the (suggested) persistence of age discrimination when determining the employability of an odd-lot injured claimant." Majority, ¶ 31.
¶ 46. The fact the majority ignores is that Renz's prima facie case included not only his injury and disability but his age, education, training and efforts to obtain suitable employment. Renz's vocational expert, whom the ALJ and LIRC believed, considered all of these factors and more. LIRC found that despite anti-discrimination laws, "there is an inclination for many employers to discriminate against older or disabled individuals. While state and federal laws do address this problem, they do not eliminate it."2 Thus, if Cargill wanted to rebut this, or other factors the ALJ, LIRC and Renz's vocational expert considered in their conclusion that Renz was totally, permanently disabled, Cargill would have to find the means to do so.
¶ 47. While the majority fails to see the relevance of a disclosure of Renz's age, the reason LIRC made the majority's perceived illegal finding is initially found in Renz's expert witnesses' earning capacity analysis:
The Worker's Compensation Act of Wisconsin and The Wisconsin Administrative Code 80.34 were used as guidelines in determining the claimant's pre-injury and future earning capacity. The following factors were considered:
• Age; Education; Training;
• Previous work experience;
*237• Present occupation and earnings;
• Efforts to obtain suitable employment;
• Likelihood of future suitable occupational change;
• Willingness to make a reasonable change in residence to secure suitable employment;
• Success and willingness to participate in a reasonable physical and vocational rehabilitation program; and
• Other pertinent evidence such as medical opinions related to the injury in question, and with special attention paid to permanent medically defined physical restrictions.
It is possible that a job could be identified that would match Mr. Renz's capacity for four to six hours of work per day, lifting no more than 10 pounds, but the number of such jobs in the labor market would be very limited. When such part-time openings would occur, it is likely that younger candidates would be hired and Mr. Renz would be passed over due to his age and his various physical limitations.
Therefore, based on the opinion of Dr. Anderson, the services Charles Renz has to offer employers are so limited in quality, dependability, and quantity that a reasonably stable labor market for his services would not exist. He would be considered permanently and totally (100%) disabled.
¶ 48. These factors match up with Wis. Admin. Code § DWD 80.34 (Oct. 2007) which provides:
(1) Any department determinations as to loss of earning capacity for injuries arising under s. 102.44(2) *238and (3), Stats., shall take into account the effect of the injured employee's permanent physical and mental limitations resulting from the injury upon present and potential earnings in view of the following factors:
(a) Age;
(b) Education;
(c) Training;
(d) Previous work experience;
(e) Previous earnings;
(f) Present occupation and earnings;
(g) Likelihood of future suitable occupation change;
(h) Efforts to obtain suitable employment;
(i) Willingness to make reasonable change in a residence to secure suitable employment;
(j) Success of and willingness to participate in reasonable physical and vocational rehabilitation program; and
(k) Other pertinent evidence.
¶ 49. I believe that the reason LIRC wrote what the majority condemns is because LIRC found authority in Wis. Admin. Code § DWD 80.34 to do so. I agree with LIRC. The majority fails to consider § DWD 80.34, so I cannot determine whether the majority believes that § DWD 80.34 is irrelevant, not present in this case, improperly enacted, at variance with some statute or possibly unconstitutional. Those are the usual reasons courts do not follow administrative rules, or more specifically, an administrative agency's use of its rule. Without more, I cannot tell why the majority ignores § DWD 80.34
*239¶ 50. In Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 251, 453 N.W.2d 487 (Ct. App. 1989), we said: "Section Ind. 80.34 [now Wis. Admin. Code § DWD 80.34] of the code applies loss of earning capacity to injury under the odd-lot doctrine . .. ." Beecher discussed § DWD 80.34:
The rule applies generally to "[a]ny department determinations as to loss of earning capacity" for injuries causing permanent partial or permanent total disability. It is, however, only a list of factors to be considered in evaluating loss of earning capacity. Section 80.34 is not an evidentiary rule; neither does it impose a burden of proof, establish a set of evidentiary requirements, or mandate the substantive elements of a claim.
Taking the first factor, the applicant's age, as an example, § 80.34 does not eliminate applicants who are below a certain age or otherwise establish a particular evidentiary requirement regarding age that must be met in order to qualify for loss of earning capacity benefits .... The relative weight of any one of the § 80.34 factors depends upon its consideration in context with the others.
Beecher, 273 Wis. 2d 136, ¶¶ 42-43. That is exactly what LIRC did here.
¶ 51. Ultimately, this is a credibility case. The result should be predictable. But for some reason, the majority bites on Cargill's red herring and concludes differently. I can therefore only respectfully dissent.
The court in Balczewski v. DILHR, 76 Wis. 2d 487, 498-99, 251 N.W.2d 794 (1977), remanded for further hearing because the odd-lot doctrine had not been recognized by the employer at the time of the hearing.
The majority makes its own finding about age and disability discrimination by adding "(suggested)" to LIRC's finding.