By: WISCONSIN LAW JOURNAL STAFF//July 11, 2013//
Wisconsin Supreme Court
Civil
Employment — worker’s compensation — competency
An “adverse party” under sec. 102.23(1)(a) is a party “in whose favor” LIRC’s award or order was made, or a party “whose interest is in conflict with the modification or reversal” of LIRC’s order or award.
“We conclude that the circuit court had competency to adjudicate Xcel’s complaint, notwithstanding Xcel’s omission of ACE, because ACE was not an “adverse party” for purposes of Wis. Stat. § 102.23(1)(a). In reaching this conclusion, we reaffirm our decision in Miller Brewing Co. v. LIRC (Miller II), 173 Wis. 2d 700, 713–18, 495 N.W.2d 660 (1993), and conclude that an ‘adverse party’ under § 102.23(1)(a) is a party ‘in whose favor’ LIRC’s award or order was made, or a party ‘whose interest is in conflict with the modification or reversal’ of LIRC’s order or award. We also now withdraw language that creates a definition of “adverse party” proffered by the court of appeals in Miller Brewing Co. v. LIRC (Miller I), 166 Wis. 2d 830, 842, 480 N.W.2d 532 (Ct. App. 1992), that is not in accord with our definition.”
“Additionally, rather than remanding to the court of appeals to review the merits of Xcel’s complaint, which the court of appeals did not review, we affirm LIRC’s award in favor of Smoczyk. First, based on the evidence of record, LIRC’s finding that Smoczyk is entitled to permanent total disability benefits on an odd-lot basis is supported by credible and substantial evidence. Second, Xcel has not demonstrated that LIRC exceeded its authority in reaching a conclusion that departed from an ALJ’s order in Smoczyk’s worker’s compensation proceeding before the Department of Workforce Development (DWD). Therefore, we reverse the decision of the court of appeals and we remand with instructions to affirm LIRC’s decision awarding permanent total disability benefits to Smoczyk.”
Reversed and Remanded.
2011AP203 Xcel Energy Services, Inc., v. LIRC
Roggensack, J.
Attorneys: For Appellant: Crom, Timothy S., Lake Elmo, Minn.; Bandt, Matthew P., Lake Elmo, Minn.; For Respondent: Moriarty, Richard B., Madison; Jackson, Steve M., Eau Claire