from an order of the circuit court for Trempealeau County No.
2017CV120: RIAN W. RADTKE, Judge. Affirmed.
Stark, P.J., Hruz and Seidl, JJ.
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). 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.
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.
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
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
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.
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.
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. 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.
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
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.
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.
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
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
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
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
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."
Mueller again sought judicial review. The circuit court
affirmed the Commission's decision. Mueller now appeals.