CBS, Inc. v. Labor & Industry Review Commission

N. PATRICK CROOKS, J.

¶ 33. {concurring). I agree with the mandate in this case. I write separately to address the applicable standard of review, and to state my concern with the rigid restrictions placed on a court reviewing decisions of the LIRC involving the application of Wis. Stat. § 102.03(l)(f).

¶ 34. In this case, the parties disagree regarding whether the issue presented involves a question of fact or a question of law. Kamps and LIRC argue that the issue of whether Kamps' skiing injury is an . activity incidental to living in accord with Wis. Stat. § 102.03(l)(f) presents a question of fact. Conversely, CBS argues that the issue presents a question of law. The majority acknowledges this disagreement, and concludes that the issue in this case presents a question of law. See Majority op. at 573. In reaching this conclusion, however, the majority fails to address several cases from this court which state that LIRC's application of § 102.03(l)(f) presents a question of fact.

¶ 35. Cases from this court reviewing decisions involving Wis. Stat. § 102.03(l)(f) — the "traveling salesmen's statute" — have consistently "analyzed those questions as factual determinations that would be sustained if the [LIRC] findings were based on credible evidence or reasonable inferences." Sauerwein v. DILHR, 82 Wis. 2d 294, 300, 262 N.W.2d 126 (1978). See, e.g., Tyrrell v. Industrial Comm'n, 27 Wis. 2d 219, 222, 133 N.W.2d 810 (1965) (Affirming a decision of the LIRC, concluding that a LIRC decision under *584§ 102.03(l)(f) involves a question of fact which will be affirmed if there is "any credible evidence or reasonable inference drawn therefrom to support the finding." (emphasis supplied)); Hunter v. DILHR, 64 Wis. 2d 97, 102, 218 N.W.2d 314 (1974)(same); Lager v. DILHR, 50 Wis. 2d 651, 658, 185 N.W.2d 300 (1971)(same); Dibble v. Industrial Comm'n, 40 Wis. 2d 341, 346, 161 N.W.2d 913 (1968)(same). Review of a decision of the LIRC applying § 102.03(l)(f) only presents a question of law where the facts are undisputed and only one reasonable inference can be drawn therefrom. See, e.g., Neese v. State Medical Soc'y of Wisconsin, 36 Wis. 2d 497, 509, 153 N.W.2d 552 (1967). Because the facts in this case are in dispute, the LIRC's conclusion regarding the application of § 102.03(l)(f) appears to be a finding of fact, based upon the previous decisions of this court.

¶ 36. The Wisconsin Legislature has afforded reviewing courts extremely limited authority in reviewing decisions of the LIRC, particularly where a court reviews findings of fact. As stated by the majority, "[t]he findings of fact made by the [LIRC] acting within its powers shall, in the absence of fraud, be conclusive." Wis. Stat. § 102.23(l)(a). Further, "[i]f the [LIRC's] order or award depends on any fact found by the [LIRC], the court shall not substitute its judgment for that of the [LIRC] as to the weight or credibility of the evidence on any finding of fact." Wis. Stat. § 102.23(6). Even where a reviewing court has determined that the LIRC's findings are not supported by credible and substantial evidence, § 102.23(6) states that a reviewing court may only remand the case to the LIRC for further development of the record.

¶ 37. Practically, the language of Wis. Stat. § 102.23 provides for review of an LIRC decision only in "very limited situations." Goranson v. DILHR, 94 Wis. *5852d 537, 552, 289 N.W.2d 270 (1980). As stated by the majority, this restrictive statutory language has been interpreted by this court to "create a presumption that an employee who sets out on a business trip in the course of his employment performs services arising out of and incidental to his employment until he returns from his trip." Lager, 50 Wis. 2d at 658 (citing Tyrrell, 27 Wis. 2d 219; Armstrong v. Industrial Comm'n, 254 Wis. 174, 35 N.W.2d 212 (1948)).

¶ 38. The statutes involved, and corresponding case law from this court, virtually prohibit any meaningful judicial review of a factual decision of the LIRC, except in rare circumstances, such as fraud. The result of this body of law is "that the findings of the [LIRC] must be upheld upon appeal even though they may be contrary to the great weight and clear preponderance of the evidence." Consolidated Papers, Inc. v. ILHR Dep't, 76 Wis. 2d 210, 215, 251 N.W.2d 69 (1977)(emphasis supplied)(citing R.T. Madden, Inc. v. ILHR Dep't, 43 Wis. 2d 528, 548, 169 N.W.2d 73 (1969); Briggs & Stratton Corp. v. ILHR Dep't, 43 Wis. 2d 398, 404, 168 N.W.2d 817 (1969)).

¶ 39. I recognize that "[t]he legislative purpose in restricting judicial review in worker's compensation cases is to limit appeals and protracted litigation in the interest of attaining speedy justice for the employee." Goranson, 94 Wis. 2d at 553 (citations omitted). In an effort to expedite the interests of justice, however, I conclude that judicial review of the LIRC's application of Wis. Stat. § 102.03(l)(f) has been limited to the extent that it is essentially negated. Such limited judicial review works to insulate from close scrutiny those decisions of the LIRC that are arguably unjust as well as those that are just.

*586¶ 40. As stated, the majority concludes that the issue involves the LIRC's interpretation of a statute and, therefore, the appropriate standard of review is to afford great weight to the LIRC's decision. This may be a more reasoned approach than the approach previously set forth by this court in cases such as Sauerwein, Tyrrell, Hunter, Lager, and Dibble, which review decisions of the LIRC involving Wis. Stat. § 102.03(l)(f). The majority's approach would also alleviate some of my concerns about the restrictive appellate review regarding LIRC's findings of fact. See Wis. Stat. § 102.23. However, the majority's approach is not supported by precedent from this court.

¶ 41. Any deviation from precedent should be considered only through a thorough analysis and overview of the law as it currently exists.

"[T]he doctrine of stare decisis. . .is a doctrine that demands respect in a society governed by the rule of law." Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419 — 20 (1983), overruled on other grounds by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Such "fidelity to precedent" helps to ensure that the existing law will "not be abandoned without strong justification." State v. Stevens, 181 Wis. 2d 410, 441, 551 N.W.2d 591 (1994)(Abrahamson, J., concurring), cert. denied, — U.S.—, 115 S. Ct. 2245 (1995). When existing law "is open to revision in every case, 'deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.'" Citizens Utility Bd. v. Klauser, 194 Wis. 2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, J. dissenting) (citation omitted). Unless there is a compelling reason to divert from its precedent, a court should abide by the precedent it has established.

*587State v. Carter, 208 Wis. 2d 142, 162, 560 N.W.2d 256 (1997)(Steinmetz, J. dissenting). Without any discussion of the existing case law, which is contrary to the standard of review advanced by the majority, the majority has failed to show a "compelling reason to divert from [this court's] precedent." Id.

¶ 42. In arguing that the LIRC's decision under Wis. Stat. § 102.03(l)(f) presents a question of law, CBS cites this court's decision in Nottelson v. ILHR Dep’t, 94 Wis. 2d 106, 287 N.W.2d 763 (1980). However, the application of § 102.03(l)(f) was not at issue in Nottelson. Rather, Nottelson involved, in part, "the meaning of the legal concepts 'voluntary termination' and 'good cause attributable to the employing unit' as used in sec. 108.04(7)(a), (b), Stats." Nottelson, 94 Wis. 2d at 115.

¶ 43. Similarly, the majority cites Hagen v. LIRC, 210 Wis. 2d 12, 18, 563 N.W.2d 454 (1997), for its conclusions that the issue presented in this case is a question of law. Hagen involved the application of Wis. Stat. § 102.52(1). Wisconsin Stat. § 102.03(l)(f) was not addressed in this court's decision in Hagen.

¶ 44. In conclusion, I agree with the mandate affirming the decision of the LIRC. I write only to state that, based upon existing case law, the issue in this case presents a question of fact. I also write to state my dissatisfaction with the restrictive standard of review to which this court is bound in reviewing decisions of the LIRC, particularly those involving the application of Wis. Stat. § 102.03(l)(f).

¶ 45. I am authorized to state that Justice JON P. WILCOX joins this concurrence.