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10/20/83 EUGENE NIGBOR (DECEASED) v. DEPARTMENT

October 20, 1983

EUGENE NIGBOR (DECEASED), AND GLENDA NIGBOR, PLAINTIFFS-APPELLANTS
v.
DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, MCQUAY PERFEX CORPORATION, LIBERTY MUTUAL INSURANCE COMPANY AND THE STATE OF WISCONSIN, DEFENDANTS-RESPONDENTS



Appeal from a judgment of the Circuit Court for Waushara County: David C. Willis, Judge.

Petition to Review Granted. Petition to Cross-Review Pending.

Gartzke, P.j., Bablitch, J. and Dykman, J.

The opinion of the court was delivered by: Dykman

This is an appeal from a judgment of the circuit court affirming an order of the Labor and Industry Review Commission denying worker's compensation benefits for the death of appellant's husband. Three issues are presented. First, whether the circuit court was competent to render a valid judgment. *fn1 Second, whether, at the time of his fatal injury, decedent was performing services growing out of and incidental to his employment. Third, whether decedent's fatal injury arose out of his employment. We affirm on the first two issues and do not reach the third.

FACTS

Decedent, Eugene Nigbor, was employed by the McQuay Perfex Corporation as a rap-squeeze molding machine operator. The machine operated by decedent, called a squeezer, consisted of a flat bed upon which sand mold boxes were placed and an overhead arm with a plate extended over the mold box. In order to compress the mold, the operator would pull a lever causing the flat bed to move the mold box up hydraulically, about eight to twelve inches, in contact with the overhead plate. This cycling of the machine occurred with great speed and force, taking only a split second for the mold box to hit the overhead plate.

On Friday, August 18, 1978, decedent worked his usual shift from 6:00 a.m. to 3:00 p.m. On Saturday, August 19, 1978, decedent and his co-workers worked an extra shift from 12:00 a.m. to 8:00 a.m. The accident causing decedent's death occurred at approximately 7:30 a.m. during the extra shift. As a joke, decedent put his head between the overhead plate and an empty sand mold box on his squeezer. As he called to gain the attention of one of his co-workers and waved his arms up and down, his right hand hit the activating lever of the squeezer. The machine cycled, causing fatal injuries to decedent's neck and head.

JURISDICTION

The caption of the summons and complaint named the Department of Industry, Labor and Human Relations as a defendant rather than the Labor and Industry Review Commission. DILHR moved to dismiss the complaint because LIRC was not named in the summons and complaint. Because the facts are undisputed, the question whether the circuit court lacked competency is one of law. Dept. of Revenue v. Bailey-Bohrman Steel Corp., 93 Wis. 2d 602, 606, 287 N.W.2d 715, 717 (1980). "This court owes no deference to the trial court's resolution of issues of law." Katze v. Randolph & Scott Mut. Fire Ins. Co., 111 Wis. 2d 326, 330, 330 N.W.2d 232, 234 (Ct. App. 1983).

The supreme court has required strict compliance with sec. 102.23, Stats. Cruz v. ILHR Department, 81 Wis. 2d 442, 448, 260 N.W.2d 692, 693 (1978). Where only insubstantial and technical defects appear on the face of the pleadings, however, and the appeal is brought in good faith, a trial court abuses its discretion by dismissing the complaint. Id. at 453, 260 N.W.2d at 696. The defect in Cruz found to be insubstantial was the substitution of "County Court: Milwaukee County" for "Circuit Court: Dane County" in the caption of the case. Id. at 446, 260 N.W.2d at 693.

Using the Cruz rationale, there is nothing of record that suggests this appeal was not brought in good faith. DILHR's motion to dismiss is no less "technical and insubstantial" than was the demurrer in Cruz. Consequently, the circuit court was competent to decide this case.

STANDARD OF REVIEW

The application of a particular legal standard to a certain set of facts is a question of law, Nottelson v. ILHR Department, 94 Wis. 2d 106, 116, 287 N.W.2d 763, 768 (1980), including the determination whether the statutory standards of the Worker's Compensation Act apply to undisputed facts. Bruns Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 322, 328 N.W.2d 886, 888 (Ct. App. 1982).

When reviewing an administrative agency's Conclusions of law, the reviewing court is not bound by those Conclusions but will sustain them if reasonable, even though an alternative view exists that is equally reasonable. Id. The reviewing court acknowledges that the administrative agency has special expertise in making the value judgments that ...


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