Section 102.23. Judicial review.

 

(1)  

(a)

1. The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or final, whether judgment has been rendered on the order or award or not, is subject to review only as provided in this section and not under ch. 227 or s. 801.02 . The commission shall identify in the order or award the persons that must be made parties to an action for review of the order or award.

2. Within 30 days after the date of an order or award made by the commission, any party aggrieved by the order or award may commence an action in circuit court for review of the order or award by serving a complaint as provided in par. (b) and filing the summons and complaint with the clerk of the circuit court. The summons and complaint shall name the party commencing the action as the plaintiff and shall name as defendants the commission and all persons identified by the commission under subd. 1. If the circuit court determines that any other person is necessary for the proper resolution of the action, the circuit court may join that person as a party to the action, unless joinder of the person would unduly delay the resolution of the action. If the circuit court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any finding or order, the circuit court may extend the time within which an action may be commenced by an additional 30 days.

3. The proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is a state agency, the proceedings shall be in the circuit court of the county where the defendant resides. The proceedings may be brought in any circuit court if all parties stipulate and that court agrees.

(b) In such an action a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.

(c) The commission shall serve its answer to the complaint within 20 days after the service of the complaint. Except as provided in par. (cm) , any other defendant may serve an answer to the complaint within 20 days after the service of the complaint, which answer may, by way of counterclaim or cross complaint, ask for the review of the order or award referred to in the complaint, with the same effect as if the defendant had commenced a separate action for the review of the order or award.

(cm) If a defendant in an action brought under par. (a) is an insurance company, the insurance company may serve an answer to the complaint within 45 days after the service of the complaint.

(d) The commission shall make return to the court of all documents and papers on file in the matter, all testimony that has been taken, and the commission's order, findings, and award. Such return of the commission when filed in the office of the clerk of the circuit court shall, with the papers specified in s. 809.15 , constitute a judgment roll in the action; and it shall not be necessary to have a transcript approved. The action may thereupon be brought on for hearing before the court upon the record by any party on 10 days' notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another judge.

(e) Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:

1. That the commission acted without or in excess of its powers.

2. That the order or award was procured by fraud.

3. That the findings of fact by the commission do not support the order or award.

(2)  Upon the trial of an action for review of an order or award the court shall disregard any irregularity or error of the commission, the department, or the division unless it is made to affirmatively appear that the plaintiff was damaged by that irregularity or error.

(3)  The record in any case shall be transmitted to the department or the division within 5 days after expiration of the time for appeal from the order or judgment of the court, unless an appeal is taken from that order or judgment.

(4)  Whenever an award is made against the state the attorney general may bring an action for review thereof in the same manner and upon the same grounds as are provided by sub. (1) .

(5)  When an action for review involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies, a party that has been ordered by the department, the division, the commission, or a court to pay compensation is not relieved from paying compensation as ordered.

(6)  If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

1973 c. 150 ; 1975 c. 199 ; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1977 c. 29 ; 1977 c. 187 ss. 59 , 135 ; 1977 c. 195 , 272 , 447 ; Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1979 c. 278 ; 1981 c. 390 s. 252 ; 1983 a. 98 , 122 , 538 ; 1985 a. 83 ; 1997 a. 187 ; 2001 a. 37 ; 2005 a. 172 , 442 ; 2015 a. 55 , 180 . Judicial Council Committee's Note, 1976: The procedure for initiating a petition for judicial review under ch. 102 is governed by the provisions of s. 102.23 rather than the provisions for initiating a civil action under s. 801.02. [Re Order effective Jan. 1, 1977] The fact that a party appealing from a DILHR order as to unemployment compensation labeled his petition "under 227.15" [now 227.52], is immaterial since the circuit court had subject matter jurisdiction. An answer by the department that s. 227.15 [now 227.52] gave no jurisdiction amounted to an appearance, and the department could not later claim that the court had no personal jurisdiction because the appellant had not served a summons and complaint. Lees v. DILHR, 49 Wis. 2d 491 , 182 N.W.2d 245 (1971). A finding of fact, whether ultimate or evidentiary, is still in its essential nature a fact, whereas a conclusion of law accepts those facts, and by judicial reasoning results from the application of rules or concepts of law to those facts whether undisputed or not. Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175 , 212 N.W.2d 97 (1973). A challenge to the constitutionality of sub. (1) was not sustained since it is manifest from the statute that the legislature intended to have the department be the real party in interest and not a mere nominal party. Hunter v. DILHR, 64 Wis. 2d 97 , 218 N.W.2d 314 (1974). When the claimant timely appealed an adverse worker's compensation decision in good faith, but erroneously captioned the appeal, the trial court abused its discretion by dismissing the action. Cruz v. DILHR, 81 Wis. 2d 442 , 260 N.W.2d 692 (1978). An employer whose unemployment compensation account is not affected by the commission's determination has no standing to seek judicial review. Cornwell Personnel Associates v. DILHR, 92 Wis. 2d 53 , 284 N.W.2d 706 (Ct. App. 1979). An agency's mixed conclusions of law and findings of fact may be analyzed by using 2 methods: 1) the analytical method of separating law from fact; or 2) the practical or policy method that avoids law and fact labels and searches for a rational basis for the agency's decision. United Way of Greater Milwaukee v. DILHR, 105 Wis. 2d 447 , 313 N.W.2d 858 (Ct. App. 1981). A failure to properly serve the commission pursuant to sub. (1) (b) results in a jurisdictional defect rather than a mere technical error. Gomez v. Labor and Industry Review Commission, 153 Wis. 2d 686 , 451 N.W.2d 475 (Ct. App. 1989). Discretionary reversal is not applicable to judicial review of LIRC orders under ch. 102. There is no power to reopen a matter that has been fully determined under ch. 102. Kwaterski v. Labor and Industry Review Commission, 158 Wis. 2d 112 , 462 N.W.2d 534 (Ct. App. 1990). A LIRC decision is to be upheld unless it directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise without a rational basis. Wisconsin Electric Power Co. v. Labor and Industry Review Commission, 226 Wis. 2d 778 , 595 N.W.2d 23 (1999), 97-2747 . An appeal under s. 102.16 (2m) (e) of a department determination may be served under sub. (1) (b) on the department or the commission. McDonough v. Department of Workforce Development, 227 Wis. 2d 271 , 595 N.W.2d 686 (1999), 97-3711 . Under sub. (1) (a), judicial review is available only from an order or award granting or denying compensation. Judicial review by common law certiorari was not available for a claim that LIRC failed to act within the statutory time limitations under s. 102.18 (4), which would be subject to judicial review of any subsequent order or award granting or denying compensation in that case. Vidal v. Labor and Industry Review Commission, 2002 WI 72 , 253 Wis. 2d 426 , 645 N.W.2d 870 , 00-3548 . The plaintiff complied with the requirement of sub. (1) that every adverse party be made a defendant by naming the defendant's insurer in the caption of the summons and complaint, which were timely filed and served even though the insurer was not mentioned in the complaint's body. Selaiden v. Columbia Hospital, 2002 WI App 99 , 253 Wis. 2d 553 , 644 N.W.2d 690 , 01-2046 . Sub. (5) requires an employer to make payment to a disabled employee pending appeal of a date of injury defense in an occupational disease case when the employer's liability is not disputed on appeal and the only question is who will pay benefits. Bosco v. Labor and Industry Review Commission, 2004 WI 77 , 272 Wis. 2d 586 , 681 N.W.2d 157 , 03-0662 . Because s. 102.18 (1) (bp) specifically allows for the imposition of bad faith penalties on an employer for failure to pay benefits and because sub. (5) specifically directs the employer to pay benefits pending an appeal when the only issue is who will pay benefits, an employer may be subject to bad faith penalties under s. 102.18 (1) (bp), independent from its insurer, when it fails to pay benefits in accordance with sub. (5). Bosco v. Labor and Industry Review Commission, 2004 WI 77 , 272 Wis. 2d 586 , 681 N.W.2d 157 , 03-0662 . Under Miller an "adverse party" for worker's compensation actions in circuit court includes any party bound by the Commission's order or award granting or denying compensation to the claimant. The interests of an adverse party need not necessarily be adverse to the party filing a circuit court action. Xcel Energy Services, Inc. v. LIRC, 2012 WI App 19 , 339 Wis. 2d 413 , 810 N.W.2d 865 , 11-0203 . Default judgment is unavailable to plaintiffs under this section when the employer has timely answered. Ellis v. Department of Administration, 2011 WI App 67 , 333 Wis. 2d 228 , 800 N.W.2d 6 , 10-1374 . Failure to name an adverse party as a defendant under sub. (1) (a) deprives the circuit court of competency and requires dismissal of the complaint. "Adverse party" includes every party whose interest in relation to the judgment or decree appealed from is in conflict with the modification or reversal sought by the action for judicial review. Xcel Energy Services, Inc. v. Labor and Industry Review Commission, 2013 WI 64 , 349 Wis. 2d 234 , 833 N.W.2d 665 , 11-0203 . The only reasonable reading of sub. (1) (c)'s plain language is that a stipulation is only required from active parties. To require the Department of Workforce Development to obtain stipulations to venue from parties who have not responded to the action and have not expressed any interest in participating is unreasonable and does not further the purpose of preventing inconvenience or hardship to parties involved in the action. The stipulation of the parties is not required prior to the filing of the action. Department of Workforce Development v. Labor and Industry Review Commission, 2015 WI App 56 , 364 Wis. 2d 514 , 869 N.W.2d 163 , 14-2221 . The venue provision of sub. (1) (a) is central to the statutory scheme, and as such, failure to comply with its mandates deprived the circuit court of the competency to hear the cases. DWD v. LIRC, 2016 WI App 21 , ___ Wis. 2d ___, ___ N.W.2d ___, 14-2928 . Judicial review of workmen's compensation cases. Haferman, 1973 WLR 576.