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Mueller v. Labor And Industry Review Commission

Court of Appeals of Wisconsin, District III

August 27, 2019

Janet Mueller, Petitioner-Appellant,
v.
Labor and Industry Review Commission, Ashley Furniture Industries, Twin City Fire Insurance Company and Gallagher Bassett Services, Inc., Respondents-Respondents.

          APPEAL from an order of the circuit court for Trempealeau County No. 2017CV120: RIAN W. RADTKE, Judge. Affirmed.

          Before Stark, P.J., Hruz and Seidl, JJ.

          SEIDL, J.

         ¶1 Janet Mueller appeals a circuit court order affirming a decision by the Labor and Industry Review Commission (the Commission), which dismissed Mueller's application for worker's compensation temporary disability benefits. Mueller argues the Commission erred by concluding that Mueller's voluntary retirement from her employment precluded her from establishing that she suffered an actual wage loss, and that she therefore was not entitled to receive disability benefits under Wis.Stat. § 102.43 (2017-18).[1] In the alternative, Mueller argues that even if her voluntary retirement initially prevented her from showing an actual wage loss, the Commission erred by concluding that she failed to show she suffered an actual wage loss when she tried-and eventually succeeded-to re-enter the labor market.

         ¶2 We conclude that under Wis.Stat. § 102.43, an employee must show that he or she sustained an actual wage loss attributable to his or her injury in order to be entitled to temporary disability benefits. Applying that standard, we determine that the Commission did not err in dismissing Mueller's claim because, as the Commission found, Mueller voluntarily retired for reasons entirely unrelated to her injury, and her subsequent attempts to re-enter the labor market were not impaired by her work-related injury. Therefore, any wage loss Mueller suffered is solely attributable to her own choices, and not to her work-related injury. Consequently, we affirm.

         BACKGROUND

         ¶3 In 1997, Mueller began working for Ashley Furniture, a company that manufactures and sells home furnishings. She worked on Ashley's furniture "finishing line," in a production position. This position required her to lift heavy objects and involved the repetitive use of both upper extremities.

         ¶4 On October 17, 2013, Mueller injured her right arm and shoulder while she and another employee were lifting a headboard that weighed approximately 100 pounds. As a result of this injury, Mueller was placed on full-time light duty. While she was on light duty, Ashley paid Mueller $311 per week in temporary partial disability (TPD) benefits. That amount represented the wage loss Mueller suffered due to her light duty position paying her less than her regular duty position.

         ¶5 Over four months later, Mueller submitted to Ashley a notice of resignation form. In response to the form's prompt as to the reason for her resignation, Mueller wrote: "Retiring." Mueller remained on light duty-and consequently received TPD benefits-until her retirement became effective on March 14, 2014.

         ¶6 Approximately one month after her retirement, Mueller realized that she was no longer receiving TPD benefit payments. Accordingly, she contacted Amy Neubauer, Ashley's human resources manager, in an attempt to reinstate her employment. When Mueller's reinstatement request was denied, she submitted an employment application for a vacant position at Ashley. Ultimately, Ashley did not select Mueller to fill this position.

         ¶7 On June 5, 2014, Mueller underwent surgery to repair her right rotator cuff and biceps tendon. She reached an end of healing exactly one year later.[2] As a result of this surgery, Ashley initially conceded Mueller suffered a five percent permanent partial disability (PPD), as compared to an amputation of the right shoulder, and paid her that benefit. An additional three percent PPD was then assessed by Ashley's independent medical examiner, which Ashley also paid to Mueller. In addition, Ashley paid all of Mueller's medical treatment bills and medical mileage. None of those benefit payments are contested on appeal.

         ¶8 In January 2015, while still in her healing period, Mueller secured part-time employment at the Sunflower Cafe. In her new position, Mueller worked six to fourteen hours per week doing "odds and ends," such as washing dishes and cooking.

         ¶9 Mueller subsequently submitted a hearing application to the Department of Workforce Development, seeking temporary total disability (TTD) benefits from the date of her surgery on June 5, 2014, until her end of healing on June 5, 2015. Mueller's request for a hearing was granted. At her hearing, Mueller clarified that she was also seeking TPD benefits from her retirement date on March 14, 2014, until her date of surgery on June 5, 2014.

         ¶10 At the hearing, Mueller testified that she had been considering retirement prior to her injury because she "wasn't really getting along with my girls that I worked with." She also testified that no one in Ashley's worker's compensation department informed her that her retirement could have an effect on her temporary disability benefits, but that if they had she "probably" would not have retired.

         ¶11 The administrative law judge (ALJ) ultimately dismissed Mueller's claims with prejudice, based upon the finding that Mueller "did not retire because of her work injury." In addition, the ALJ found that Mueller was "not a good historian; neither was she a credible witness."

         ¶12 Mueller appealed the ALJ's decision to the Commission, which affirmed. The Commission determined, in relevant part, that the "ALJ properly found that the applicant voluntarily retired for reasons unrelated to her work injury."

         ¶13 Mueller sought judicial review of the Commission's decision. The circuit court affirmed the Commission's decision "to the extent it denie[d] [Mueller's] claim for [TPD] benefits for the period of March 14, 2014 to June 5, 2014." In doing so, the court determined that "the findings of the Commission clearly established Ms. Mueller voluntarily retired for reasons unrelated to her work injury." Mueller did not appeal that portion of the court's decision.

         ¶14 As to the Commission's decision regarding Mueller's TTD benefits claim for the period from June 5, 2014, to June 5, 2015, the circuit court remanded the matter for further proceedings. Specifically, the court directed the Commission "to consider and determine" whether Mueller re-entered the workforce following her retirement and, if so, whether her return entitled her to temporary disability benefits.

         ¶15 On remand, the Commission found that Mueller's part-time employment at the cafe showed Mueller "returned to the labor force in a limited fashion" during her healing period. The Commission also found that Mueller "could work full time … if she wished, but has chosen to work part time and not to look for work elsewhere." Based upon these findings, the Commission concluded Mueller's part-time employment was not "sufficient to establish an actual wage loss due to her injury." The Commission reasoned that if Mueller was "actively looking for full-time work elsewhere, or wanted to work more hours than she worked at Sunflower Cafe but could not, she might have been able to establish an actual wage loss supporting an award for temporary partial disability. … However, no such showing has been made in this case."

         ¶16 Mueller again sought judicial review. The circuit court affirmed the Commission's decision. Mueller now appeals.

         STANDARD ...


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