author: DEININGER, J. VERGERONT, J.

text:
    Wal-Mart Stores, Inc., Plaintiff-Appellant, v. Labor and Industry Review Commission, Defendant-Respondent, James R. Schneider, Interested Party-Respondent.

    Court of Appeals

      No. 99-2632.

      Submitted on briefs May 19, 2000.

    Decided November 22, 2000.

    2000 WI App 272
    (Also reported in 621 N.W.2d 633.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Susan R. Maisa and Michael Mishlove of Foley & Lardner, Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of David C. Rice, assistant attorney general, and James E. Doyle, attorney general.

      On behalf of the interested party-respondent, the cause was submitted on the brief of Dean R. Dietrich and Julie M. Falk of Ruder, Ware & Michler, S.C., Wausau.
    A nonparty brief was filed by Thomas P. Krukow-ski, Timothy G. Costello, and Mark A. Johnson of Krukowski & Costello, S.C., Greenfield, for Wisconsin Manufacturers & Commerce.
    Before Vergeront, Roggensack and Deininger, JJ.

      Petition to review denied.

   DEININGER, J.

¶ 1. Wal-Mart Stores, Inc., appeals an order which affirmed a determination by the Labor and Industry Review Commission that Wal-Mart had discriminated against James Schneider by terminating his employment because of his disability. Wal-Mart claims the commission erred in several of its findings and conclusions, but we address only one of the claimed errors inasmuch as it is dispositive. We agree with Wal-Mart that, because there was no expert testimony establishing that the behavior for which Schneider was fired was caused by his mental illness, the commission erred in finding that Wal-Mart termi-. nated his employment because of his disability. Accordingly, we reverse the circuit order affirming the commission's determination, and we instruct the court to enter an order remanding the matter to the commission for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. Schneider was employed by Wal-Mart as a tire and lubrication technician, and his principal duties consisted of draining oil and changing oil filters on customers' automobiles. He suffers from a form of mental illness known as obsessive-compulsive disorder (OCD). This anxiety disorder is caused by a chemical imbalance, which affects the way the brain influences a person's thoughts, feelings and actions. A pamphlet introduced as an exhibit at the hearing on Schneider's discrimination complaint explains that OCD sufferers have "recurring and unwanted thoughts or images that the person knows are excessive or unreasonable but cannot stop," such as a fear of contamination by dirt or germs, fear of harming themselves or others, or a preoccupation with having a serious illness such as cancer. These obsessive thoughts then lead to "repetitive behaviors or mental acts that consume at least one hour each day," such as excessive hand washing, repeatedly checking items such as locked doors, or arranging items in a certain way.

¶ 3. Schneider was receiving treatment for his OCD in the form of medications and psychotherapy. About three months before he was fired, Wal-Mart granted him an extended leave to allow him to undergo a change in his medications. He then returned to work, at first part-time, progressing to full-time over a four-week period. Soon after his return to work, Schneider's supervisor announced to the automobile service technicians that another employee was being promoted to the position of "bay manager." The commission found that the following then ensued:

Schneider immediately became upset and voiced his opposition to the promotion saying, among other things, that it was unfair and that [the other employee] was unqualified. [The supervisor] told Schneider two or three times to be quiet, and at one point to shut up, and that they could discuss it one on one later. Schneider responded by saying he was going to quit and then asking if he could go home for the day because he was sick. [The supervisor] told Schneider that he could leave for the day.

After obtaining written statements from the employees present, and discussions among "upper management," Wal-Mart terminated Schneider's employment, citing his "insubordination" on the day in question.

¶ 4. Before his leave of absence, Schneider had discussed with his supervisor the possibility of his being promoted to the position of bay manager, and he was counseled on areas in which he could improve in order to enhance his opportunity for promotion. Schneider believed that it was "all but certain" that he would get the promotion, and he committed himself to hard work and improvement to that end. He testified:

The way I was talked to and the times that I was talked to, again, I was led to believe that this position was going to be mine. And after a while, the OCD just takes over. It just — it consumed me for weeks and months, that I couldn't wait to get this position, just as it would consume me for weeks at a time of not going out of my apartment, not opening my drapes, and that type of thing.

He also testified that problems with "anger control" were a part of his OCD, and that some of the medication that he was taking at the time "was to help relieve those feelings."

¶ 5. The deposition of Schneider's therapist, Betty Cameron, was made a part of the record in the administrative proceedings. She is a registered nurse "with a degree in nursing and an undergrad degree with a minor in psychiatry, and... a master's degree in marriage and family therapy." Her experience included "many years as a psychiatric nurse on inpatient psychiatry in Waukesha and Shorewood, Wisconsin, and also at De Paul in Milwaukee, which is an alcoholic recovery hospital, which also had certain dual diagnosis patients with obsessive-compulsive disorders." She testified that she felt "very confident in assessing for that diagnosis."

¶ 6. Cameron testified that she had spoken on several occasions with Schneider's supervisor regarding Schneider's need for a leave and the phased transition back to work following his medication change. She recalled telling the supervisor that Schneider's former medication "was not holding him" and that he was thus "highly reactive," meaning that he was "quick to anger." She also testified that "anger is so much a part of the predominant symptom when the medications are not appropriate," and that the gradual transition back to work was recommended so that Schneider would not "lose his temper or kind of sabotage himself." According to Cameron, Schneider's supervisor came across as being very understanding and amenable to both the leave and the transition, saying at one point that "he would do anything in his power to help" Schneider.

¶ 7. The administrative law judge (ALJ) who heard Schneider's complaint concluded that the record established that Wal-Mart had discriminated against Schneider because of his disability when it fired him following the incident described above. He ordered Wal-Mart to reinstate Schneider and to pay his back wages, costs and attorney fees. Wal-Mart appealed to the commission, which, with minor modifications, adopted the ALJ's findings and conclusions as its own. Wal-Mart then petitioned the circuit court for review, and the court affirmed the commission's determination. Wal-Mart renews its claims of error in this court.

ANALYSIS

¶ 8. We independently review the commission's determination, not the decision of the circuit court. Barnes v. DNR, 178 Wis. 2d 290, 302, 506 N.W.2d 155 (Ct. App. 1993), aff d, 184 Wis. 2d 645, 516 N.W.2d 730 (1994). The scope of our review depends, initially, on whether the agency determination under review is its finding of a fact or its interpretation of law. Wis. Stat. § 227.57(3), (5) and (6) (1997-98).

¶ 9. Wal-Mart concedes that Schneider has a disability within the meaning of Wisconsin's fair employment law. See WlS. STAT. § 111.32(8). In order to prevail on his discrimination claim, however, Schneider must also show that Wal-Mart terminated his employment because of his disability. See Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998). In this regard, the commission concluded as follows: "It is undisputed that [Schneider] was discharged because of his outburst at a staff meeting. If [Schneider] established that the outburst was caused by his disability, then his termination must be considered, in legal effect, to have been because of his disability." Wal-Mart argues both that Schneider failed to establish the causal link between , his disability and the "outburst" which led to his dismissal, and that, even if cause had been established, a firing for misconduct cannot be deemed, "in legal effect," to be an action taken "because of his disability." We agree with Wal-Mart's first argument, which challenges the sufficiency of the evidence before the commission.

¶ 10. Our review of an agency's factual finding is highly deferential:

If the agency's action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record.

WlS. STAT. § 227.57(6) (emphasis added). "Substantial evidence" is that quantum of relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and we will only set aside an agency's decision where, "upon an examination of the entire record, the evidence, including the inferences therefrom, is found to be such that a reasonable person, acting reasonably, could not have reached the decision from the evidence and its inferences." Target Stores, 217 Wis. 2d at 11 (citation omitted).

¶ 11. Wal-Mart's challenge to the sufficiency of the evidence rests on two premises: (1) that expert testimony is required to prove the causal link between Schneider's disability and his conduct; and (2) that there is none in the record doing so. As to the first proposition, we note that whether expert testimony is necessary in a given situation is a question of law, which we decide without deference to a trial court's opinion on the matter. Grace v. Grace, 195 Wis. 2d 153, 159, 536 N.W.2d 109 (Ct. App. 1995). Whether we should defer to an administrative decision maker on the question of the need for expert testimony on a factual issue in dispute before it, and if so, to what degree, are perhaps more difficult questions.

¶ 12. The commission did not directly rule on whether expert testimony was needed to establish that Schneider's OCD caused him to react vociferously to the announcement that a fellow employee, and not he, would be promoted. The commission gave the following explanation of its finding that Schneider had established the requisite causation:

The commission believes that the complainant has satisfied his burden in this regard. [Schneider] established that he suffers from OCD, and that people with OCD are plagued by obsessive thoughts. The record also established that [Schneider] was obsessively focused on the idea of obtaining the bay manager position — [Schneider] testified that he had been consumed for "weeks and months" with the position, and this is well borne out by the record. In addition to the fact that [Schneider]'s OCD resulted in obsessive thoughts, [his] therapist indicated that [his] condition made it difficult for him to control his anger and that, at the time of the events which resulted in his discharge, she was in the process of trying to adjust his medication to help him achieve better anger management. Under these circumstances, the commission is satisfied that [Schneider]'s actions in becoming profoundly upset and acting out at a meeting in which he learned that someone else had been selected for the bay manager position were attributable to his OCD ....

¶ 13. It is not clear from the foregoing whether the commission deemed expert testimony unnecessary-on the question of causation, or if it considered the pamphlet describing OCD which Schneider introduced into evidence, together with the testimony of his therapist, sufficient expert evidence on the issue. Because the commission did not directly address the question, our consideration of whether expert testimony is required to link Schneider's "outburst" with his OCD is, of necessity, de novo.

¶ 14. Even if the commission had ruled on the matter, however, we would conclude that de novo review is appropriate. The question appears to be one of first impression, and it addresses the necessary quantum of proof required to establish a medical/psychiatric fact. Thus, it is a question that is at best tangential to the commission's legislative charter to administer certain employment-related statutes, and it lies outside of the commission's acknowledged expertise in employment discrimination matters. We conclude that a reviewing court is as competent as the commission to decide the legal question of whether expert testimony is required to establish a causal link between a psychiatric disorder and certain behavior. See Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485 N.W.2d 256 (1992) ("[T]he de novo standard is applied where it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented.") (citations omitted).

¶ 15. The commission's failure to directly address whether expert testimony was necessary to establish causation is understandable. Wal-Mart did not make its present arguments regarding the need for expert testimony during the review proceedings before the commission. The commission thus asks us to declare the issue waived. See, e.g., Lange v. LIRC, 215 Wis. 2d 561, 572, 573 N.W.2d 856 (Ct. App. 1997). For several reasons, however, we choose not to do so. First, the waiver rule is one of administration, not jurisdiction, and it is a general rule to which there are exceptions. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). Second, as we have noted, the necessity for expert testimony to establish a given fact presents a question of law, and the parties have fully briefed the issue, both here and in the circuit court. See id. Finally, we conclude that "the question presented is of sufficient public interest to merit a decision," see State v. Gaulke, 177 Wis. 2d 789, 794, 503 N.W.2d 330 (Ct. App. 1993), and it is one that is likely to recur. See Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 22, 522 N.W.2d 536 (Ct. App. 1994).

¶ 16. We thus turn to a consideration of whether Schneider needed to present expert testimony to establish that his vociferous reaction to the announcement that another employee was being promoted to the position of bay manager was caused by his OCD. We conclude that expert testimony was a prerequisite for this finding. The supreme court has explained that there is a distinction "between matters of common knowledge and those needing expert testimony to explain." Cramer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427 (1969). "[E]xpert testimony should be adduced concerning matters involving special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of mankind, and which require special learning, study, or experience." Id. (citations omitted). In situations where the factual question of causation is "so complex or technical" that a lay fact finder "without the assistance of expert testimony would be speculating," the absence of expert testimony "constitutes an insufficiency of proof." Id. at 152. We conclude that that is precisely the circumstance regarding the question before us.

¶ 17. The pamphlet introduced by Schneider states that "OCD is a complex and baffling medical illness," and that "[djuring the past decade, scientific research has made enormous progress in understanding the biochemical features of OCD, and doctors and other mental health professionals are now able to diagnose and treat the illness." Schneider himself testified that OCD "is a very much misunderstood disease still at this date and time." We agree. There is nothing in the record from which we might conclude that the symptoms and manifestations of OCD are "within the realm of the ordinary experience of mankind." See Cramer, 45 Wis. 2d at 150. We thus conclude that the question of whether Schneider's OCD caused him to react angrily and vociferously to tlie news that he had been passed over for promotion, and thereby to commit the alleged insubordination for which he was fired, is sufficiently "complex or technical" that a lay fact finder "without the assistance of expert testimony would be speculating" on the matter. See id. at 152.

¶ 18. We acknowledge that the commission is not necessarily a "lay fact finder" in the same sense that a trial judge or a jury is. The legislature has designated the commission as the final administrative arbiter of work-related claims, including discrimination claims. See WlS. Stat. § 103.04. Consequently, as we have noted, owing to its authority and expertise in employment-related matters, our review of the commission's factual findings is highly deferential, requiring that we uphold a finding unless "a reasonable person, acting reasonably, could not have reached the decision from the evidence and its inferences." Target Stores, 217 Wis. 2d at 11.

¶ 19. We are not persuaded, however, that we must defer to an inference by the commission that clearly lies outside its area of expertise. Whether a causal link exists between Schneider's disability and the conduct which triggered his firing is a question of medical/scientific fact, not one of employment policies or practices. Thus, we conclude that, on the issue at hand, the commission stands in no better position than a judge or jury, and that if the commission made its finding on causation, "without the assistance of expert testimony" to support that finding, the commission "would be speculating." See Cramer, 45 Wis. 2d at 152; see also Sieger v. Wisconsin Pers. Comm'n, 181 Wis. 2d 845, 862, 512 N.W.2d 220 (Ct. App. 1994) (concluding that "medical expert testimony" was necessary in proceedings before the Personnel Commission under the Family Medical Leave Act in order "to establish that... leave was medically necessary because [the employee]'s serious health condition did not manifest symptoms that lay people would recognize as necessitating a leave").

¶ 20. We must next consider, therefore, whether there is expert testimony in the present record to support the commission's conclusion that Schneider's OCD caused his outburst. It appears from the previously quoted passage from its decision that the commission relied on three things to conclude that causation was established: (1) Schneider's own testimony that he was "obsessed" with attaining the bay manager's position; (2) the pamphlet describing OCD; and (3) therapist Cameron's deposition testimony. Even though he suffers from the disease, Schneider is not an "expert" on OCD for the present purposes, in that there is no indication in the record that he possesses "scientific, technical, or other specialized knowledge" by way of "experience, training, or education" that would qualify him to give an expert opinion on whether a certain behavior was caused by his OCD. See WlS. Stat. § 907.02; see also Connecticut Gen. Life Ins. Co. v. DILHR, 86 Wis. 2d 393,406-08,273 N.W.2d 206 (1979) (concluding that testimony of complainant insufficient to establish that he was handicapped by alcoholism "without competent evidence of a medical diagnosis"). The OCD pamphlet in the record, as we have noted, comments that "doctors and other mental health professionals" are now able to diagnose and treat the "complex and baffling" illness of OCD. The commission must therefore look to these professionals, and not to their patient, for the necessary expertise to testify on the question of causation.

¶ 21. We will assume for present purposes that the OCD pamphlet introduced by Schneider, constitutes "expert testimony" regarding the nature and manifestations of OCD. (See footnotes 2 and 8.) The pamphlet obviously provides no direct evidence that Schneider's outburst on the day in question was caused by his OCD, nor does it provide any evidence from which that conclusion might be inferred. If anything, the pamphlet undermines Schneider's contention regarding causation. The OCD-related behaviors cited in the pamphlet involve repetitive performance of routine acts, such as hand washing, the touching or arranging of objects, locking of doors, or hoarding useless items. There is no mention of anger-control problems, or of a tendency to engage in vociferous outbursts in response to unwelcome news.

¶ 22. Similarly, the pamphlet describes "typical OCD obsessions" as "recurring and unwanted thoughts or images that the person knows are excessive or unreasonable but cannot stop." Examples cited include the fear of dirt, germs, or diseases; an irrational preoccupation with illnesses; and the fear of committing "sinful acts." By contrast, the pamphlet notes that certain normal or desirable personality traits are often said to be "obsessive," such as the desire to lose weight, and that some forms of obsessive thinking or compulsive actions, such as "perfectionism" and "conscientiousness," may be evidence of an "obsessive-compulsive personality" rather than OCD. In short, nothing in the pamphlet supports a claim that a preoccupation with getting aheád in one's job, or an emotional outburst when that goal is thwarted, represent "typical" manifestations of OCD.

¶ 23. That leaves the testimony of therapist Cameron, whose credentials as a registered nurse specializing in psychiatric care we have described. Wal-Mart suggests that she was not qualified to give testimony on whether OCD caused Schneider's outburst. We need not address the issue of Cameron's qualifications to give such testimony, however, because she did not do so. Like the pamphlet, therapist Cameron provided no direct evidence that Schneider's outburst at the staff meeting was caused by his OCD. Quite simply, she was never asked whether, in her professional opinion, Schneider's behavior on the day in question, as described by other witnesses or their statements, was caused by, or likely to have been caused by, Schneider's OCD. Cameron also gave no testimony corroborating Schneider's claim, that he was obsessed with attaining a promotion, or more importantly, that a preoccupation with being promoted was in any way related to his OCD.

¶ 24. Most of Cameron's testimony was transactional, relating to communications she had had with Schneider's supervisor regarding his leave from and return to work. She testified that she was on vacation at the time of Schneider's firing, that another therapist was covering her "more difficult clients," and that she did not "personally call anybody at Wal-Mart to talk about the incident." The commission, however, relied on Cameron's testimony that Schneider's difficulty in controlling his anger was one of the reasons he had undergone a change in medications prior to the incident which led to his firing. We conclude that this testimony (which we have summarized in the Background section of this opinion) is insufficient to serve as a proxy for direct, expert testimony linking the behavior in question to Schneider's OCD.

¶ 25. In summary, we conclude that expert testimony was required to establish that the conduct which formed the basis for Wal-Mart's action in terminating Schneider's employment was caused by his disability, and that the record lacks such expert testimony. We thus conclude that the commission's determination is not supported by substantial evidence. A "reasonable person, acting reasonably, could not have reached the decision from the evidence" before the commission, see Target Stores, 217 Wis. 2d at 11 (citation omitted), because the causal link between OCD and Schneider's behavior is "not within the realm of the ordinary experience of mankind." See Cramer, 45 Wis. 2d at 150. Inferring the required causal link from the evidence in the present record, without expert testimony on the issue, is speculation, not the drawing of a reasonable inference to which we must defer. See id. at 152.

¶ 26. As we have noted, whether expert testimony is required to establish a causal link between Schneider's disability and the conduct for which he was fired is a question of first impression, and it is one that Wal-Mart did not explicitly raise in proceedings before the commission. WISCONSIN STAT. § 227.57(6) provides that we are to "set aside agency action or remand the case to the agency if [we] find[ ] that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record." We conclude, given the circumstances noted, that we should remand the case to the commission, which may conduct additional evidentiary proceedings if it deems appropriate.

¶ 27. Finally, we note again that Wal-Mart also argues that, even if a causal link were established, a firing for misconduct cannot be deemed, "in legal effect," to be an action taken "because of his disability." See, e.g., Palmer v. Circuit Court, 117 F.3d 351, 352 (7th Cir. 1997). The Wisconsin Manufacturers & Commerce (WMC) also argues in its amicus brief that "[a]n employer who discharges an employee because of conduct does not discharge the employee because of a disability — even if the disability caused the conduct that caused the discharge." Cf. Squires v. LIRC, 97 Wis. 2d 648, 653, 294 N.W.2d 48 (Ct. App. 1980). As with the evidentiary issue, it does not appear that Wal-Mart raised this issue in proceedings before the commission. The commission did not discuss it in its decision, other than to state its conclusion that if Schneider "established that the outburst was caused by his disability, then his termination must be considered, in legal effect, to have been because of his disability." In support, the commission cited its decision in Crivello v. Target Stores, ERD No. 9252123 (LIRC, August 14, 1996), and two Personnel Commission decisions, Bell-Merz v. University of Wisconsin, No. 90-0138-PC-ER (Wis. Personnel Commission, March 19, 1983) and Conley v. DHSS, No. 84-0067-PC-ER (Wis. Personnel Commission, June 29, 1987). In its Crivello decision, the commission also did not discuss the issue, but simply cited the two Personnel Commission decisions for the proposition.

¶ 28. The Personnel Commission noted in Bell-Merz that there was no dispute that the complainant suffered from depression and was "perceived as an alcoholic" by a UW-Whitewater personnel official, and that she was thus "clearly" a "handicapped individual." It then declared, without further discussion, that a firing for misconduct equates to a firing because of the underlying causal disability. The question of whether a firing for misconduct caused by a disability equates, as a matter of law, to a firing because of disability, is of some importance, and it involves significant policy implications. We therefore invite the commission on remand to expand on the rationale for its adoption of the Personnel Commission's interpretation, which is the subject of some disagreement among federal courts. Compare Palmer v. Circuit Court, 117 F.3d 351 (7th Cir. 1997), with Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511 (2d Cir. 1991). In revisiting this issue, the commission may wish to receive evidence in order to provide a complete record on the issue.

CONCLUSION

¶ 29. For the reasons discussed above, we reverse the circuit court's order and direct that, on remand, an order be entered remanding the matter to the commission for further proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded with directions.

VERGERONT, J.

¶ 30. (dissenting). I disagree with the analysis and conclusion of the majority opinion. Whether the conduct that led to Schneider's dismissal was caused by his obsessive-compulsive disorder (OCD) is a question of fact. I conclude that Cameron is qualified to testify as an expert both on whether Schneider has OCD and on the symptoms he manifests that are caused by OCD. Cameron testified that Schneider has OCD, and, as the majority states, Wal-Mart concedes that Schneider has a disability within the meaning of the statute. Cameron also testified:

A. ... I remember telling [Schneider's supervisor] that [Schneider] was in crisis from the standpoint that his medication was, was not holding him, that as part of his disorder, being the obsessive-compulsive disorder, that he was highly reactive. And anger is so much a part of the predominant symptom when the medications are not appropriate to address the symptoms. So we were in the process of getting him on different medications and trying to alleviate the high reactiveness of Jim Schneider.
Q. Did you talk with [Schneider's supervisor] about the obsessive-compulsive disorder and explain it to him?
A. I don't remember exactly how much in depth I went with him, but I remember telling [him] something to the effect that [Schneider] is highly affective. He doesn't like being that way; it is part of his disorder. And that's the part we're addressing in therapy but therapy is not sufficient for him. He is one of those clients that needs medication as well.

¶ 31. Given our deferential standard of review of the factual findings of the commission, I conclude that Cameron's deposition testimony is sufficient for a reasonable person acting reasonably to decide that being highly reactive and quick to anger are symptoms of Schneider's OCD. I conclude that testimony, together with Schneider's testimony, is sufficient to permit a reasonable person acting reasonably to decide that his "outburst" at the meeting was caused by his OCD. I agree with the majority that Schneider's testimony alone is not sufficient to establish that his conduct at the meeting was caused by his OCD. However, I do not agree it is necessary for Cameron or some other expert to specifically opine that Schneider's conduct at the meeting was caused by his OCD in order for the commission to make that finding. Therefore, I respectfully dissent. Were I writing for the majority, I would affirm the commission's finding that the behavior for which Schneider was fired was caused by his OCD, and proceed to decide the other issues Wal-Mart raises on appeal. Because I am writing in dissent, I confine my comments to the issue decided in the majority opinion.

       During the course of administrative proceedings in this case, the legislature revised the pertinent statutes to replace the obsolete term "handicap" with the term "disability." See 1997 Wis. Act 112. Although some documents in the record refer to Schneider's "handicap," we will employ the current term throughout this opinion.

       The pamphlet introduced as an exhibit is entitled "Understanding the Inner Workings of Obsessive-Compulsive Disorder (OCD)." Its author or publisher cannot be readily determined from the copy in the record. Schneider testified that he had received the pamphlet "from the Marshfield Clinic," and that it "explain[s] the different steps and how it [OCD] affects some people one way and some people another way."

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The circuit court concluded that "[n]o specific expert testimony was required," but that, in any event, "Cameron's testimony as a therapist with specific expertise as a psychiatric nurse was expert testimony," which "assisted the Commission in making its determination."

       We also note that challenges to the sufficiency of evidence are not as susceptible to waiver arguments as are other claims of error. See, e.g., WlS. STAT. § 805.17(4) (challenges to the sufficiency of the evidence to support a trial court's findings "may be raised on appeal whether or not the party raising the question has objected in the trial court to such findings."). As we have noted, Wal-Mart's first challenge is essentially that there was insufficient evidence to support the commission's finding that it fired Schneider because of his disability, because he did not present expert testimony that his outburst was caused by his OCD. In its petition for review to the commission, Wal-Mart asserted that "[t]here is no evidence" that its firing of Schneider on account of his outburst was a "pretext for discrimination," and that, at the time of the incident, Schneider was no longer disabled "because his alleged disability was under control through the use of medication." Thus, while it did not specifically cite the lack of expert evidence, Wal-Mart did alert the commission to what it believed to be an insufficient record on which to base a determination that it had fired Schneider because of his disability. Finally, we note that, in some instances, specific challenges to an agency's findings can be raised for the first time on appeal. Cf. Goranson v. DILHR, 94 Wis. 2d 537, 546, 289 N.W.2d 270 (1980) (Where a hearing examiner's findings are challenged before an administrative agency, but are adopted by the agency unmodified, "[i]f these findings are inadequate or contrary to law, the applicant cannot be deemed to have waived the defects by failing to point out the error to the agency.").

       Expert testimony may not be a necessity in every case involving a claim that certain behavior or misconduct is caused by a disability. The causal linkage between certain behaviors and some disabilities may well be "within the realm of the ordinary experience of mankind," such as the consumption of alcoholic beverages by one who suffers from alcoholism. See, e.g., WlS. Stat. § 51.45(1); State ex rel. Jacobus v. State, 208 Wis. 2d 39, 48-52, 559 N.W.2d 900 (1997).

       Our conclusion that expert testimony is required to causally link Schneider's disability with his misconduct also finds support in a Personnel Commission decision, Bell-Merz v. University of Wisconsin, No. 90-0138-PC-ER (Wis. Personnel Commission, March 19,1993), which the commission cites in its present decision. The Personnel Commission found that the complainant had established that some of her absences from work were related to her depression, but for many others, "there was no medical opinion whether the depression was causal." Thus, although the Personnel Commission was willing to equate a firing for misconduct to a firing because of the underlying disability, it apparently deemed expert opinion necessary to establish the causal link between the conduct and the disability.

       We acknowledge that the commission is not "bound by common law or statutory rules of evidence." WlS. STAT. § 227.45(1). The question, however, is not whether Schneider should have been permitted to offer his opinion as to what caused his outburst at the employee meeting, but whether his lay opinion on the matter is sufficient to sustain his burden of proof on the issue of causation. Notwithstanding a relaxation of the formal rules of evidence, "[b]asic principles of relevancy, materiality and probative force shall govern the proof of all questions of fact" in agency proceedings. Id.

       Schneider, who filed a separate response brief, points to a letter from an Equal Rights Division investigator to Cameron which asked her, "[i]n layperson's terms, what is the [disability]?" Cameron wrote in response, "[s]evere Obsessive Compulsive Disorder with extreme difficulty with anger management." We agree with Wal-Mart, however, that the document in question was not introduced into evidence at the hearing on Schneider's claim, and thus it was not before the ALJ or the commission.

       We also note that our conclusion may be viewed as a determination that the commission committed an error of law by allowing Schneider's claim in the absence of expert testimony to support causation. A remand to the commission is thus also appropriate under WlS. STAT. § 227.57(5) ("The court shall set aside or modify the agency action if it finds that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or it shall remand the case to the agency for further action under a correct interpretation of the provision of law.").

       The WMC did not address in its brief whether expert testimony is necessary to establish that Schneider's OCD caused his misconduct.

       The commission argues that, although this court did not "expressly address" the issue, we "implicitly endorsed" the commission's conclusion that a firing for sleeping on the job was a firing because of the complhinant's handicap in Crivello. We disagree with this characterization. We noted in our opinion that "Target does not challenge LIRC's conclusion that Crivello was discharged for sporadically dozing off on the job, that this dozing off was a direct result of her sleep apnea, and that her termination therefore was based on her handicap." Target Stores v. LIRC, 217 Wis. 2d 1, 10, 576 N.W.2d 545 (Ct. App. 1998). Our failure to address an issue because it is not contested on appeal does not constitute an "endorsement" of the commission's conclusion regarding the matter. We simply did not take up the issue because there was no reason to do so in the appeal under consideration.

       Because we conclude that there was insufficient evidence to support the commission's finding that Schneider's outburst was caused by his OCD, we do not address the several other issues Wal-Mart raises: whether a firing for misconduct caused by a disability equates to discrimination on the basis of the disability; whether Schneider's disability was reasonably related to his ability to adequately perform his job-related responsibilities; and whether Wal-Mart refused to reasonably accommodate Schneider's OCD.


source: Caselaw Access Project

author: CURLEY, J. FINE, J.

license: Public Domain

text:
    Honthaners Restaurants, Inc. and North River Insurance Co., Plaintiffs-Appellants, v. Labor and Industry Review Commission and Dawn Marie Stanislowski, Defendants-Respondents.
    Court of Appeals

      No. 99-3002.

      Submitted on briefs September 5, 2000.

    Decided November 28, 2000.

    2000 WI App 273
    (Also reported in 621 N.W.2d 660.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs oí Robert P. Ochowicz and Patti J. Kurth of Kasdorf Lewis & Swietlik, S.C., of Milwaukee.
    On behalf of the defendant-respondent Labor and Industry Review Commission, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen M. Sobota, assistant attorney general.
    On behalf of the defendant-respondent Dawn Marie Stanislowski, the cause was submitted on the brief ofAnthony J. Skemp ofDomnitz, Mawicke & Gois-man, S.C., of Milwaukee.
    Before Fine, Schudson and Curley, JJ.

      Petition to review denied.

   CURLEY, J.

¶ 1. Honthaners Restaurants, Inc., and its worker's compensation carrier, North River Insurance Company (collectively, "Honthaners") appeal the Labor and Industry Review Commission's award to Dawn Marie Stanislowski of additional temporary total disability payments and additional medical expenses. Honthaners argues that the Commission exceeded its authority under WlS. STAT. § 102.42(1) because the law permits Stanislowski to be awarded benefits only if her medical treatment and expenses were necessary and reasonable. Honthaners contends that the Commission's finding that Stanis-lowski had been medically "overdiagnosed and over-treated" was tantamount to a finding that Stanislow-ski's treatment and medical expenses were unreasonable and unnecessary. Honthaners also submits that the Commission improperly interpreted the holding in Spencer v. DILHR, 55 Wis. 2d 525, 200 N.W.2d 611 (1972), as permitting the award of benefits for Stanislowski's overdiagnosed and over-treated injury. Alternatively, Honthaners argues that, even if Spencer is dispositive, it has been overturned by legislative amendment. We affirm.

¶ 2. In reviewing the Commission's decision and giving it great weight deference, we conclude that Spencer controls and creates an exception to the WlS. STAT. § 102.42(1) rule awarding benefits only for reasonable and necessary medical treatment and expenses. Since Stanislowski, like the claimant in Spencer, suffered an undisputed compensable injury which generated a conflict between the medical experts as to the degree of her injury apd its duration, she is entitled to be compensated for her additional medical treatment and her expenses because she accepted the additional treatment in good faith.

I. Background.

¶ 3. Stanislowski injured her right arm on July 9, 1994, while working at a George Webb's Restaurant owned by Honthaners Restaurants, Inc. Stanislowski related that when she flipped some eggs in a frying pan, she heard a "pop" in her right elbow, lost strength in her arm and experienced pain. Honthaners did not object to her initial application for worker's compensation. As a consequence, Stanislowski was awarded temporary total disability from August 16, 1994, through February 4, 1995, in addition to the payment of her accrued medical expenses for that time period.

¶ 4. Later, Stanislowski sought additional temporary total disability payments, permanent partial disability benefits and payment for additional medical expenses. Honthaners objected, and after a contested hearing, the administrative law judge (ALJ) determined that Stanislowski had not met her burden of proof and that she was entitled to no further compensation. The ALJ reached this decision after hearing Stanislowski's testimony, reviewing the medical records, and watching a surveillance tape of Stanislow-ski performing a number of tasks with her right arm.

¶ 5. Stanislowski appealed the ALJ's decision to the Labor and Industry Review Commission. The Commission reversed the decision of the ALJ. In its decision, the Commission related Stanislowski's medical history. It noted that Stanislowski was first treated for her injury in August of 1994 by Dr. Bogunovic, who recommended that Stanislowski not work. During the course of Stanislowski's treatment, Dr. Bogunovic also referred Stanislowski to two other doctors who examined her and generally agreed with his diagnosis. Although Dr. Bogunovic originally authorized Stanis-lowski to go back to work in April of 1995, she did not return because she claimed she could not hold any substantial weight in her right hand. Stanislowski continued her treatment with Dr. Bogunovic and, on March 26, 1996, he "opined that she had reached a healing plateau." He also evaluated her injury and "assessed 50 per cent permanent partial disability at the right elbow."

¶ 6. The Commission also reviewed the medical reports and opinion of Dr. McCabe, who saw Stanislow-ski at the request of the worker's compensation insurer. Dr. McCabe examined Stanislowski on three occasions. At the first visit, in August 1994, Dr. McCabe agreed that Stanislowski suffered an injury at work, but unlike Dr. Bogunovic, Dr. McCabe recommended light duty work and physical therapy. Dr. McCabe next saw Stanislowski on February 9,1995. At that time, Dr. McCabe found Stanislowski's complaints to be unsupported by any physical findings. In sharp contrast to Dr. Bogunovic's medical opinion, Dr. McCabe wrote that Stanislowski's injury was temporary in nature, and that it should have healed within one month of the injury. Dr. McCabe's report also stated, "We would be concerned that the patient simply chooses not to work." Dr. McCabe last examined Stanislowski on January 8,1998. At that time, he reiterated that Stanislowski reached a healing plateau far earlier than the time suggested by Dr. Bogunovic, and that she suffered from no permanent disability. Another doctor, Dr. Dzwierzynski, also hired by Honthaners, agreed with Dr. McCabe's assessment of Stanislowski and rejected the diagnosis of Dr. Bogunovic.

¶ 7. Before reaching its decision, the Commission also conferred with the ALJ. The ALJ advised the Commission that he had not found Stanislowski to be a credible witness. Nevertheless, the Commission reversed the ALJ's decision and ordered Honthaners to pay Stanislowski temporary total disability and certain medical expenses from February 4, 1995, through March 2, 1996. It did, however, affirm the ALJ's finding of no permanent partial disability. In awarding additional benefits, the Commission did not adopt Dr. Bogunovic's opinion that Stanislowski suffered a permanent partial disability; instead, it adopted Dr. McCabe's opinion that Stanislowski's injury had resolved without any permanency. But because the Commission found that Stanislowski had been "overdiagnosed and over-treated," that she believed herself to be permanently disabled, and that she engaged in her prolonged medical treatment with Dr. Bogunovic in "good faith," the Commission reasoned that Stanislowski was eligible for continued benefits. It explained: "In accordance with Spencer the medical treatment she received and temporary disability she incurred up to Dr. Bogunovic's assessment of a healing plateau on March 26, 1996, is compensable regardless of its reasonableness or necessity." Honthaners then appealed the Commission's decision to the circuit court. There, Honthaners argued that the Commission misinterpreted Spencer s holding in awarding Stanis-lowski benefits. The trial court affirmed, determining: "[T]he Commission[']s decision is reasonable and con-cords with the purpose of the statute. The court also concludes that the Commission's findings of fact and conclusions of law support the ... award."

II. Analysis.

¶ 8. We review the Commission's decision, not that of the circuit court. See Stafford Trucking, Inc. v. DILHR, 102 Wis. 2d 256, 260, 306 N.W.2d 79 (Ct. App. 1981).

¶ 9. Honthaners argues that the Commission's decision is in error because, "in ignoring the express language found in [WlS. STAT. § ] 102.42(1), [it],interpreted Spencer as requiring it to award Stanislowski temporary total disability and medical expenses from February 4, 1995, until March 26, 1996." Further, Honthaners submits that the facts of this case more closely resemblé those in City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 328 N.W.2d 882 (Ct. App. 1982), which, if followed, would require the Commission to reject Stanislowski's request for additional benefits.

¶ 10. In this appeal, we are presented with questions of fact and law. When presented with mixed questions of fact and law on administrative review, this' court employs the standard of review set forth in Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 541 N.W.2d 241 (Ct. App. 1995):

"LIRC's findings of fact are conclusive on appeal so long as they are supported by credible and substantial evidence. The drawing of one of several reasonable inferences from undisputed facts also constitutes fact finding. Any legal conclusion drawn by LIRC from its findings of fact, however, is a question of law subject to independent judicial review.
When the question on appeal is whether a statutory concept embraces a particular set of factual circumstances, the court is presented with mixed questions of fact and law. The conduct of the parties presents a question of fact and the meaning of the statute a question of law. The application of the statute to the facts is also a question of law. However, the application of a statutory concept to a set of facts frequently also calls for a value judgment; and when the administrative agency's expertise is significant to the value judgment, the agency's decision is accorded some weight."

Id. at 931 (citation omitted).

¶ 11. In addition, here we accord the Commission's legal determinations great weight deference.

When, and to what degree, deference should be paid to an agency's decision in a given case has been the subject of much discussion in the supreme court and this court over the years. This discussion has culminated in Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98 (1995), where the supreme court, summarizing several prior cases, outlined three possible levels of deference courts should apply to an administrative agency's legal conclusions and statutory interpretations.
According to Harnischfeger, courts should grant the highest level of deference — "great [weight] deference" — to the agency where: (1) it is charged with administration of the statute being interpreted; (2) its interpretation "is one of longstanding"; (3) it employed "its expertise or specialized knowledge" in arriving at its interpretation; and (4) its interpretation "will provide uniformity and consistency in the application of the statute."

Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 760-61, 569 N.W.2d 726 (Ct. App. 1997). Applying these criteria, we are satisfied that the Commission's decision must be given great weight deference. The Commission's interpretation of both Wis. STAT. § 102.42(1) and Spencer is of long standing. Further, in interpreting both the statute and the case law, the Commission employed its expertise and specialized knowledge. Finally, its interpretation provided uniformity and consistency in the application of the law.

¶ 12. Honthaners argues that great weight deference should not be given to the Commission's decision because the Commission has never previously decided a case with similar facts. We reject this argument because the Commission need not have decided a case with identical or similar facts in order for its decision to be given great weight deference. In Town of Russell Volunteer Fire Dept. v. LIRC, 223 Wis. 2d 723, 589 N.W.2d 445 (Ct. App. 1998), review denied, 225 Wis. 2d 490, 594 N.W.2d 384 (1999), we concluded that "[t]he correct test under Wisconsin law [in applying deference to the Commission's decision] is whether [the Commission] has experience in interpreting a particular statutory scheme, not whether it has ruled on precise, or even substantially similar, facts before." Id. at 733. Thus, although the facts here differ from those found in other cases dealing with the same issues, here we accord the Commission great weight deference because it has frequently been called upon to interpret the statutory scheme found in Wis. STAT. § 102.42(1).

¶ 13. Having determined that the great weight standard applies here, the "agency's interpretation must then merely be reasonable for it to be sustained." Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98 (1995).

¶ 14. Honthaners first argues that the Commission erred in its decision because Wis. Stat. § 102.42(1) directs that a claimant is allowed compensation only for medical treatment that is reasonably required and necessary. It asserts that a finding that Stanislowski was "overdiagnosed and over-treated" is tantamount to a finding that Stanislowski's medical treatment was unreasonable and unnecessary and, therefore, an award of benefits runs contrary to the statute's mandate prohibiting recovery for unreasonable and unnecessary medical treatment. Section 102.42(1), in relevant part, provides:

(1) Treatment of Employe. The employer shall supply such medical. . . treatment... as may be reasonably required to cure and relieve from the effects of the injury... and in case of the employer's neglect or refusal seasonably to do so, or in emergency until it is practicable for the employe to give notice of injury, the employer shall be liable for the reasonable expense incurred by or on behalf of the employe in providing such treatment.... Where the employer has knowledge of the injury and the necessity for treatment, the employer's failure to tender the necessary treatment... constitutes such neglect or refusal.... The obligation to furnish such treatment. . . shall continue as required to prevent further deterioration in the condition of the employe or to maintain the existing status of such condition whether or not healing is completed.

(Emphases added.)

¶ 15. We agree that the statute ordinarily permits compensation only when medical treatment and expenses are reasonably required and necessary. However, Spencer creates an exception to the general rule. In Spencer, the supreme court allowed recovery for medical treatment and expenses that were incurred when the injured employee followed what, in hindsight, appeared to be erroneous medical advice. See Spencer, 55 Wis. 2d at 530-32. Spencer teaches that as long as the claimant engaged in the unnecessary and unreasonable treatment in good faith, the employer is responsible for payment. See id. at 532. Thus, we must look at the facts to see if Spencer applies.

¶ 16. The pertinent portion of the Commission's decision reads:

Given the entire record, the commission finds it credible that the applicant continued to receive medical treatment from her physicians in good faith. The commission further finds that the applicant believes herself to be permanently disabled, when in fact Dr. McCabe credibly opined that her epicondylitis and reflex sympathetic dystrophy have resolved without any permanency. In accordance with Spencer the medical treatment she received and temporary disability she incurred up to Dr. Bogunovic's assessment of a healing plateau on March 26,1996, is compensable regardless of its reasonableness or necessity. Therefore, the applicant is entitled to additional temporary total disability from February 4,1995 through March 26, 1996, a period of exactly 64 weeks at the applicable rate of $288 per week, for a total of $18,432.

The Commission was presented with conflicting evidence. Although the ALJ determined that Stanislowski was not credible, the Commission came to the opposite conclusion. The Commission also discounted the impact of the surveillance videotape. The Commission noted that Dr. Bogunovic refused to change his medical opinion concerning Stanislowski's injury after viewing the videotape, suggesting that Dr. Bogunovic believed the tape validated, in some measure, Stanislowski's medical complaints. This conclusion is further supported by the Commission's finding that "the videotape evidence showed the applicant did favor her right arm, albeit moderately." While evidence exists that Stanis-lowski might have been a malingerer, as suggested by Dr. McCabe, and an argument can be made that Stanislowski's complaints of limited range of motion in her arm were blunted by the videotape, these were not the Commission's findings.

¶ 17. Further, the Commission found that Stanislowski "had been overdiagnosed and over-treated for her right elbow problem" and that Stanis-lowski's recovery was delayed because "the applicant believe[d] herself to be permanently disabled." Stanis-lowski was treated for over two years, yet the Commission found that she had no permanent disability. Instead, the Commission found that her lengthy treatment was because she believed herself to be permanently disabled and, as a result, that she continued her treatment in good faith. While the inferences from these findings suggest that some of Stanislowski's treatment and expenses were unnecessary and possibly unreasonable, we must accept the Commission's findings; it is not our role to weigh the evidence or pass upon the credibility of witnesses. See Langhus v. LIRC, 206 Wis. 2d 494, 501, 557 N.W.2d 450 (Ct. App. 1996); Wis. Stat. § 102.23(6).

¶ 18. Having ascertained what the Commission found, we next address whether these facts fall within the ambit of Spencer. We are satisfied that the Commission properly concluded that Spencer was controlling.

¶ 19. In Spencer, Henry Spencer, the claimant, suffered a knee injury while working. See Spencer, 55 Wis. 2d at 526-27. No dispute arose over whether Spencer's injury was compensable under the Worker's Compensation Act. Rather, the dispute arose over the conflicting medical opinions given to Spencer as to the best course of treatment. Dr. Braun, the first orthopedic surgeon to see Spencer, advised him that his injury-required his knee cap to be removed. See id. at 527. Spencer agreed and Dr. Braun performed this operation. Following surgery, the doctor evaluated Spencer as suffering from "permanent disability equivalent to 15 percent at the knee." Id. Dr. Braun advised Spencer that he was free to go back to work and needed no further treatment. Spencer, however, continued to have pain, and he consulted with Dr. Miller, another orthopedic surgeon, who recommended a procedure called an "arthrodesis." See id. Again, Spencer agreed to the surgery and, after the arthrodesis was performed, Dr. Miller concluded that Spencer now suffered from a 40 per cent permanent partial disability. See id. When Spencer's employer objected to Dr. Miller's findings, a hearing was held in which the Department of Industry, Labor and Human Relations found that Spencer suffered from only a fifteen percent permanent partial disability and that Spencer was not entitled to any medical expenses associated with the arthrodesis because it was neither reasonable nor necessary. See id. Spencer appealed to the circuit court. The circuit court set aside the Department's findings and remanded the matter for implementation of its determinations. See id. at 527-28. The Department, the employer and its insurer then appealed. In affirming the circuit court's remand, the supreme court explained:

As we see it, the conflict here is not with the amount of disability ultimately resulting, but whether the judgment of one or the other doctor was correct or incorrect with respect to the necessity of the arthrodesis. Assuming Dr. Braun was correct, is Spencer to be faulted because he chose to follow erroneous medical advice? We do not think so, as long as he did so in good faith. There is no evidence to show that in accepting arthrodesis Spencer did so other than in good faith. The employer is responsible for the consequences not only of the injury, but the treatment. Respondent now has a stiff knee resulting from the original injury.

Id. at 532 (footnote omitted).

¶ 20. Honthaners disputes the application of Spencer and contends that the City of Wauwatosa case controls this case. The claimant in City of Wauwatosa was a police officer who slipped off a curb, fell, and injured his left hip. See City of Wauwatosa, 110 Wis. 2d at 299. He received medical treatment and returned to work. Several weeks later, he stopped working because of the pain and was referred to Dr. Hickey. Dr. Hickey claimed that the officer's injury was the result of a congenital condition which had been asymptomatic until the fall. See id. Dr. Hickey then performed surgery on the officer. Later, Dr. Collopy examined the officer at the request of the city and its insurer. He found that the accident did not aggravate the existing congenital condition; instead, it merely "brought the condition to the attention of the surgeon." Id. After considering the conflict between the medical experts as to the cause of the claimant's injury, the hearing examiner determined that the officer's work-related injury did not require surgery and denied him benefits related to the surgery. See id. at 299-300. The Commission disagreed, finding that the officer's fall aggravated the preexisting congenital condition, entitling the officer to additional benefits. See id. at 300. The circuit court upheld the Commission, principally relying on Spencer in reaching its decision. See id. The court of appeals reversed, opining:

In Spencer, the Wisconsin Supreme Court held that, where an employee, in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the commission cannot disregard the consequences of the treatment because it finds the treatment either unnecessary or unreasonable. In Spencer, it was undisputed that the injury was a compensable industrial injury. Here, however, there was a dispute in the medical testimony whether [the officer's] condition for which surgery was performed was even related to the compensable industrial injury. The hearing examiner found that the compensable industrial injury did not necessitate surgery. We conclude that the Spencer rationale applies only to cases involving treatment for an undisputed compensable industrial injury. It thus does not apply to the facts of this case.

Id. at 300-01 (citations omitted).

¶ 21. The cases reveal one important factual difference. In City of Wauwatosa, the parties disputed the actual cause of the injury, with the court of appeals adopting the hearing examiner's finding that the surgery was not the result of the work-related injury — it was required by the preexisting congenital condition. In Spencer, the parties disputed medical treatment, not cause. Here, the Commission found that Stanislow-ski suffered an undisputed compensable injury; as in Spencer, there is no dispute that she had a work-related injury. In Spencer, the court permitted compensation, even though the treatment was unnecessary and unreasonable, because the claimant obtained treatment in good faith. In the present case, the Commission found that Stanislowski, acting in good faith, obtained treatment after having been "overdiagnosed and over-treated." Thus, the Commission correctly observed that the facts of this case fall squarely within the Spencer holding.

¶ 22. As in Spencer, here we have two conflicting medical opinions concerning a claimant's injury. Dr. Bogunovic believed Stanislowski suffered a permanent injury and needed prolonged treatment. On the other hand, Dr. McCabe felt the injury had healed and that Stanislowski was exaggerating her medical condition. Although, admittedly, Stanislowski's credibility played a large part in Dr. McCabe's diagnosis and treatment, the pertinent issues here and in Spencer are identical. Both cases involve no dispute that the claimants suffered a compensable injury. Both deal with differing medical opinions on diagnosis and treatment. Both cases have a claimant who continued the unnecessary treatment in good faith. Thus, we conclude the Commission properly relied on Spencer and Stanislowski is entitled to additional benefits.

¶ 23. As noted, Honthaners alternatively argues that if Spencer applies, it is no longer good law because amendments to the law have overruled Spencer. At the time of the Spencer decision, the claimant was required to pick a doctor from an employer-approved panel of doctors. See Wis. STAT. § 102.42(2) (1965). Honthaners argues that an amendment abolishing the use of a panel of employer-named physicians overruled Spencer. See Laws of 1977, ch. 195, §§ 24-28, 45. We disagree.

¶ 24. Our review of the legislative history reveals nothing that would support Honthaners' contention that the legislature overruled Spencer by passing the amendment. It is a well-settled principle of statutory construction that the courts will not interpret a statute in a manner that will abrogate the prevailing case law unless such intent is clear from the language of the statute. See State v. Gomaz, 141 Wis. 2d 302, 320 n.11, 414 N.W.2d 626 (1987). No intent to abrogate Spencer is apparent from the statutory language. Moreover, the Department itself interpreted this amendment as only changing the requirement that a claimant choose from a panel of employer-approved doctors. See BIENNIAL Worker's Compensation Act pamphlet N47 (1978). Such an annotation is entitled to consideration in ascertaining legislative intent. See Lisney v. LIRC, 171 Wis. 2d 499, 513, 493 N.W.2d 14 (1992).

¶ 25. Further, we note that in Holdman v. Smith Lab., Inc., 151 Wis. 2d 813, 447 N.W.2d 69 (Ct. App. 1989), we cited Spencer for the rule that "treatment must be undertaken in good faith." Holdman, 151 Wis. 2d at 817. In citing Spencer, we implicitly acknowledged that it remained good law. Thus, Spencer has not been overturned.

¶ 26. In sum, we have accepted the Commission's findings and, after applying them, we are satisfied that Spencer controls the outcome of this case. In affirming the Commission's decision, we are mindful that for over sixty years, appellate decisions have determined that the Worker's Compensation Act is to be liberally construed to support compensation. See Sentinel News Co. v. Industrial Comm'n, 224 Wis. 355, 360, 271 N.W.2d 413 (1937). The Commission's decision here is in keeping with this policy determination. The Commission's decision is affirmed.

By the Court. — Order affirmed.

FINE, J.

¶ 27. (dissenting). Spencer v. DILHR, 55 Wis. 2d 525, 531-532, 200 N.W.2d 611, 614-615 (1972), held that when a worker with a work-related injury accepts treatment for that injury in good faith, the employer is responsible for the costs of the treatment as well as any aggravation to the injury that results in either a higher level or longer period of disability even though in retrospect that treatment was neither reasonable nor necessary. Spencer applies, however, only where the treatment was "for an undisputed compen-sable" work-related injury. City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 301, 328 N.W.2d 882, 884 (Ct. App. 1982). Here, Hothnaners Restaurants, Inc., conceded only part of Dawn Marie Stanislowski's claim that she suffered a work-related injury — that is, her injuries that antedated February 4,1995. Contrary to what the majority says, Hothnaners Restaurants did and does dispute that Stanislowski had any work-related injury after that date. Thus, although Spencer would apply to make Hothnaners Restaurants liable for the expense and consequences of treatment undertaken in good faith for the pre-February injury even though the treatment might have been neither reasonable nor necessary, that is not the issue here because Hothnaners Restaurants does not assert that Stanis-lowski's pre-February 4, 1995, treatment was either unreasonable or unnecessary. It does argue, however, that it is not responsible for the expense or consequences of unnecessary and unreasonable treatment dated to any post-February 4 work-related injury because Hothnaners disputes that Stanislowski has any post-February 4 work-related injury. I agree, and, accordingly, respectfully dissent.

¶ 28. The administrative law judge in this case found that Stanislowski did not have any work-related injury after February 4, 1995. ("I find [Stanislowski] reached a healing plateau as of February 4, 1995 (exclusive) and is not entitled to further compensation or medical treatment thereafter." Crediting medical opinions of Dr. Robert McCabe and Dr. William Dzwierzynski.). The Labor and Industry Review Commission reversed. In the crux of its decision, the Commission wrote:

In consultation with the commission, the administrative law judge indicated that he did not find the applicant to have been a credible witness. He reiterated his findings that the videotape evidence, as well as the lack of objective findings in the x-ray, CT scan, and EMG results, led him to accept the medical opinions of Mr. McCabe and Dr. Dzwierzynski. The commission was also persuaded that the applicant has been over-diagnosed and over-treated for her right elbow problem; however, even Dr. McCabe acknowledged that [Stanislowski] originally sustained a right epicondylitis, and that she may have had a Stage I reflex sympathetic dystrophy.

(Emphasis added.) The Commission further found that Stanislowski received her treatment in good faith and that:

[Stanislowski] believes herself to be permanently disabled, when in fact Dr. McCabe credibly opined that her epicondylitis and reflex sympathetic dystrophy have resolved without any permanency. In accordance with Spencer v. ILHR Department, 55 Wis. 2d 525, 532, 200 N.W.2d 611 (1972), the medical treatment she received and temporary disability she incurred up to Dr. Bogunovic's assessment of a healing plateau on March 26,1996, is compensable regardless of its reasonableness or necessity.

¶ 29. In my view, what the commission has done, and what the majority has sanctioned, is to apply Spencer not to situations to which City of Wauwatosa recognized Spencer was limited — namely, to cases involving treatment for "an undisputed compensable" work-related injury — but, rather, to resolve a dispute as to whether there was, in fact, a work-related injury. I would reverse.

      A11 references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       One commissioner dissented from the decision.

       At the time of Spencer's hearing, the Department of Industry, Labor, and Human Relations oversaw the award of worker's compensation benefits.


author: PETERSON, J.

text:
    Gregory Lane and Christy Lane, Plaintiffs-Respondents, v. James B. Williams, Defendant, v. Farmers Insurance Exchange, Defendant-Appellant.
    Court of Appeals

      No. 00-0852.

      Submitted on briefs October 31, 2000.

    Decided November 28, 2000.

    2000 WI App 263
    (Also reported in 621 N.W.2d 922.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William F. Bauer, John E. Keckhaver and Laura N. Whipple of Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison.

      On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Ardell W. Skow and Martha H. Heidt, Baldwin.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   PETERSON, J.

¶ 1. Farmers Insurance Exchange appeals an order awarding costs pursuant to WlS. STAT. ch. 814 and § 807.01(3) to Gregory and Christy Lane following an arbitration award. Farmers argues that: (1) no costs are awardable under WlS. STAT. §814.01 following an arbitration proceeding; (2) the circuit court had no discretion to award costs under WlS. STAT. § 814.036; (3) the arbitration agreement did allow for an award of costs; and (4) double costs are not available under WlS. STAT. § 807.01(3). We agree and reverse.

BACKGROUND

¶ 2. The Lanes commenced this action in circuit court against Farmers under the uninsured motorist section of their automobile insurance policy. The policy contained an arbitration clause that allowed either Farmers or the Lanes to bring the issue of coverage before an arbitration panel. The policy required Farmers to select and pay the cost of an arbitrator, the Lanes to select and pay the costs of an arbitrator, and for the two parties to select and share the costs of a third arbitrator. The arbitration clause also stated that all other costs of arbitration "will be shared equally."

¶ 3. The circuit court action was stayed so that arbitration could proceed. The arbitration agreement required that "[l]ocal court rules governing procedures and evidence will apply." The arbitration panel awarded $15,675.50 to Gregory Lane and $48,316 to Christy Lane.

¶ 4. The Lanes moved the circuit court for an order confirming the arbitration award pursuant to WlS. Stat. § 788.09. Christy Lane also moved for double costs and interest pursuant to WlS. Stat. § 807.01, because Farmers had not accepted a $45,000 offer of settlement served on her behalf. Gregory Lane moved for taxable costs and interest on the arbitrators' award.

¶ 5. The circuit court ordered that judgment be entered on the arbitration award and that the Lanes be awarded costs, pursuant to WlS. STAT. §§ 814.01(1), 814.036 and 807.01(3). This appeal followed.

STANDARD OF REVIEW

¶ 6. We review an arbitration award without deference to the trial court. Our function is to insure that the parties received the arbitration they bargained for. See City of Madison v. Local 311, Int'l Ass'n of Firefighters, AFL-CIO, 133 Wis. 2d 186, 190, 394 N.W.2d 766 (Ct. App. 1986). The circuit court may modify an award only on the grounds specified by statute. See McKenzie v. Warmka, 81 Wis. 2d 591, 603, 260 N.W.2d 752 (1978).

¶ 7. In this case, however, it is not review of the arbitration award that Farmers seeks. Rather, it asks that we reverse the circuit court's ruling that found the Lanes were permitted to recover costs and interest on the award. These issues require us to construe WlS. Stats. §§ 814.01, 814.036 and 807.01. The construction of a statute or the application of a statute to a particular set of facts is a question of law that we review independently. See Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989).

DISCUSSION

I. Wisconsin Stat. § 814.01

¶ 8. Wisconsin Stat. § 814.01 provides the general framework for awarding costs to a prevailing party upon completion of the litigation process. See Finkenbinder v. State Farm Mut. Auto. Ins. Co., 215 Wis. 2d 145, 151, 572 N.W.2d 501 (Ct. App. 1997). Farmers argues that statutory costs are not available after an arbitration proceeding. We agree.

¶ 9. The circumstances involved in Finkenbinder and Briggs v. Farmers Ins. Exchange, 2000 WI App 40, 233 Wis. 2d 163, 607 N.W.2d 670, are similar to those presented here and are controlling. In Finkenbinder, the plaintiff was struck by a car while she was walking across the street. She filed suit in circuit court against her underinsurance carrier. The insurer successfully moved to compel arbitration. Following arbitration, the plaintiff returned to circuit court seeking costs under Wis. Stat. ch. 814.

¶ 10. We held that "the statutory scheme of [WlS. Stat.] ch. 814 envisions a 'prevailing party' as one who is successful in a litigated trial court proceeding, not one who succeeds in obtaining an award before an arbitrator." Finkenbinder, 215 Wis. 2d at 151. Finkenbinder argued that she successfully litigated a trial court proceeding because she originally filed her claim in circuit court and her award was also finally confirmed there. See id. at 152. However, we rejected that argument and concluded that "it is not the beginning and end points of action that are dispositive; rather, the determining factor is whether the action was the subject of a litigated trial court proceeding." Id.

¶ 11. In Briggs, we reaffirmed the holding in Finkenbinder. We stated that the fundamental flaw in awarding costs is that the circuit court does not have any statutory authorization to consider assessing costs where the claim was addressed in arbitration. See Briggs, 2000, WI App 40 at ¶ 12, (citing Finkenbinder, 215 Wis. 2d 152).

¶ 12. In the present case, the circuit court awarded the Lanes all statutory costs after an arbitration award. However, as our decisions in Finkenbinder and Briggs hold, no statutory costs are available after arbitration. The Lanes succeeded in obtaining an award before an arbitrator, not in a litigated trial court proceeding. WISCONSIN Stat. § 814.01 does not allow costs to be awarded for a claim that was addressed in arbitration.

II. Wisconsin Stat. § 814.036

¶ 13. Farmers argues that the circuit court also did not have discretionary authority to award costs under WlS. STAT. § 814.036. Farmers contends that the statute does not give the circuit court an independent basis for awarding costs. We agree.

¶ 14. The Lanes claim that the circuit court did have discretionary authority to award costs under WlS. STAT. § 814.036. However, we rejected an identical argument in Briggs. See Briggs, 2000 WI App 40 at ¶ 12 n.8. We held that the omnibus costs provision "only gives the court discretion as to when it may allow costs, not as to what costs may be allowed." Id. (quoting Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 149, 549 N.W.2d 714 (1996)). Section 814.036 does not give the circuit court authority to award "costs which are not explicitly authorized by statute." Id. An award of statutory costs after arbitration is not explicitly authorized by statute and, therefore, is not within the circuit court's discretion. See Finkenbinder, 215 Wis. 2d at 151-52. As a result, the circuit court erred by awarding costs pursuant to § 814.036.

III. Arbitration Agreement

¶ 15. We next address whether the arbitration agreement itself provides for statutory costs. The arbitration provision mandated that "local court rules governing procedures and evidence will apply." The Lanes argue that the provisions in the arbitration agreement allow for taxable costs. Thus, they reason that the terms of the arbitration agreement allow costs pursuant to WlS. STAT. ch. 814. We disagree.

¶ 16. We rejected the identical argument in Briggs, 2000 WI App 40 at ¶ 12. The arbitration provision at issue in Briggs contained the same language as the one in the present case regarding the application of local court rules. See id. Briggs controls and we reject the Lanes' argument.

IV. Wisconsin Stat. § 807.01(3)

¶ 17. Finally, we address the circuit court's award of double the taxable costs to Christy Lane, pursuant to WlS. Stat. § 807.01(3). The Lanes argue that Farmers waived the issue by failing to argue it in their initial brief. Farmers argues that it has not waived the issue. According to Farmers, no costs are awardable. Because no costs are awardable, there are no costs to be doubled. We agree with Farmers that it has preserved the issue by this argument. However, we decide whether double costs are appropriate after arbitration on other grounds.

¶ 18. Wisconsin Stat. § 807.01(3) allows the plaintiff to serve the defendant a written offer of settlement "at least twenty days before trial." However, because of the arbitration provision, there was no trial in this case. The rationale in Finkenbinder and Briggs regarding WlS. STAT. ch. 814 also applies to § 807.01(3). In those cases we held that ch. 814 does not allow costs because there was no "prevailing party" in a "litigated trial court proceeding." Finkenbinder, 215 Wis. 2d at 151; Briggs, 2000 WI App 40 at ¶ 7. Similarly, to use the words of § 807.01(3), there was no "trial." Because there was no "trial," § 807.01(3) does not apply. Christy Lane is not entitled to double costs.

By the Court. — Order reversed.

      A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. § 814.01 reads as follows: "(1) Except as otherwise provided in this chapter, costs shall be allowed of course to the plaintiff upon a recovery."

       The Lanes argue that Finkenbinder and Briggs were decided incorrectly and that they ignore the plain language of WlS. STAT. § 814.01(1). Finkenbinder v. State Farm Mut. Auto. Ins. Co., 215 Wis. 2d 145, 151, 572 N.W.2d 501 (Ct. App. 1997); Briggs v. Farmers Ins. Exchange, 2000 WI App 40, 233 Wis. 2d 163, 607 N.W.2d 670. The Lanes request this court to certify this appeal to the supreme court to determine whether costs following an arbitration proceeding are allowed pursuant to WlS. Stat. § 814.01. The supreme court denied a petition for review in Briggs, thus suggesting that a certification may not be accepted in this case. We, therefore, choose to address the appeal on its merits. We may not overrule, modify or withdraw language from a published court of appeals opinion; only the supreme court may do so. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

       WISCONSIN Stat. § 814.036. provides: "If a situation arises in which the allowance of costs is not covered by ss. 814.01 to 814.035, the allowance shall be in the discretion of the court."

       Wisconsin Stat. § 807.01(3) reads as follows:
      After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs. If the defendant accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the defendant may file the offer, with proof of service of the notice of acceptance, with the clerk of court. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.

       Whether double costs were properly awarded after arbitration under Wis. Stat. § 807.01 was not decided in Briggs.


author: ANDERSON, J.

text:
    Susan Stauss by Guardians Alfred Stauss and Alice Stauss, Plaintiffs-Respondents, v. Oconomowoc Residential Programs, Inc., d/b/a Homes for Independent Living, and Continental Insurance Company, Defendants-Appellants, County of Washington, Defendant-Respondent.
    Court of Appeals

      No. 99-2481.

      Oral argument September 28, 2000.

    Decided November 29, 2000.

    2000 WI App 269
    (Also reported in 621 N.W.2d 917.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of and oral argument by M. Christine Cowles and Patrick S. Nolan oiBorgelt, Powell, Peterson & Frauen, S.C., Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of and oral argument by Timothy J. Algiers and James R. Danaher of O'Meara, Eckert, Pouros & Gonring, LLP, West Bend.
    Before Brown, P.J., Anderson and Snyder, JJ.

      Petition to cross-review denied.

       Petition to review denied.

   ANDERSON, J.

¶ 1. Susan Stauss (Stauss), by her legal guardians Alfred Stauss and Alice Stauss, brought an action for damages against the private group home Oconomowoc Residential Programs, Inc., d/b/a Homes for Independent Living, and Continental Insurance Company (HIL) after she was sexually assaulted by a staff member at the home. At the close of a four-day jury trial, the trial court ordered judgment against the defendant HIL. HIL appeals the judgment for several reasons. However, because we conclude that the real controversy was not fully tried, we decline to address HIL's rationale for appeal. We therefore reverse and remand for a new trial.

BACKGROUND

¶ 2. Stauss is a developmental^ disabled, thirty-nine-year-old woman diagnosed with Cornelia DeLange Syndrome. She is mentally disabled with the emotional capacity of a five-year-old child. Stauss's parents/guardians placed her at HIL in December 1995. In the spring of 1996, HIL hired Dean DeVries to be a HIL counselor. On numerous occasions between late October 1996 and January 4, 1997, DeVries sexually assaulted Stauss.

¶ 3. Prior to the first incident of sexual abuse, both Stauss's mother and sister expressed concerns to HIL staff members about DeVries's competency as a counselor. HIL supervisors were notified that DeVries's behavior on the job was at times inappropriate. On one occasion, a co-worker of DeVries reported that she saw DeVries with Stauss and other residents jumping on a bed in the staff office. On another occasion, a co-worker of DeVries discovered Stauss sitting on DeVries's lap laughing and joking with him. After each of these incidents, HIL supervisors merely told DeVries his behavior was inappropriate and it should not happen again. No one from HIL informed Stauss's guardians of the bed-jumping and lap-sitting incidents.

¶ 4. HIL assigned DeVries to overnight shifts within one to two weeks of being hired. HIL left DeVries unsupervised and completely in charge during his overnight shifts. No one from HIL ever dropped in to check on DeVries. DeVries was first assigned to HIL's Washington Street group home where he was in charge of eight residents — seven females, including Stauss, and one male. Later, he was transferred to HIL's Park Avenue apartment to supervise overnights for three female residents, including Stauss. As part of DeVries's duties, he was required to make sure the residents went to bed at a reasonable time. However, DeVries was not trained as to what to do if a resident would not cooperate. At one point, Stauss refused to go to bed. DeVries said that he "wasn't sure how to handle the situation." He "handled" it by allowing Stauss to stay up with him and watch TV. The first time he allowed Stauss to do this, they watched TV until 2:00 a.m.; Stauss still refused to go to bed. DeVries then said he was very tired and decided to let Stauss sleep with him.

¶ 5. DeVries's practice of allowing Stauss to sleep with him whenever he was working an overnight became a habit. This habit eventually led to regular-sexual assaults on Stauss by DeVries between October 1996 and January 1997. DeVries admitted to having had a total of fifty ejaculations while with Stauss. DeVries testified that he told Stauss he loved her and never wanted to hurt her. Stauss became very attached to DeVries and thought of him as her boyfriend.

¶ 6. In January 1997, Stauss told her sister about her sexual contacts with DeVries. Stauss's family informed HIL that Stauss claimed to be having regular sexual contacts with DeVries. At first HIL did not believe Stauss's allegations. HIL never contacted the police to report the allegations, but eventually HIL did fire DeVries. The Stauss family involved the police and ultimately DeVries was charged, tried and convicted of the sexual assault of Stauss.

PROCEDURAL DISCUSSION

¶ 7. On May 22, 1998, Stauss filed a complaint against DeVries's employer, HIL, stating the following causes of action:

1. Intentional Infliction of Emotional Distress.
2. Negligent Infliction of Emotional Distress.
3. Negligence.
4. Breach of Statutory Rights.
5. Sexual Exploitation, Sec. 895.70.

Stauss's third cause of action alleged, among other things: a "[flailure [on HIL's part] to adequately supervise, care for, assist, and counsel [Stauss]" and a "[flailure [on HIL's part] to ensure [Stauss's] safety, privacy, dignity, and freedom from physical/mental/sexual abuse." This claim is based on HIL's alleged failure to supervise Stauss. While the jury heard argument with regard to HIL's duty to supervise DeVries, we hold that the claim of negligent supervision of Stauss was not sufficiently tried. HIL's duty to supervise Stauss is manifestly different from HIL's duty to supervise DeVries. The basis for each claim rests upon "discrete and separate failings by the alleged tortfeasor." Gritzner v. Michael R., 228 Wis. 2d 541, 558, 598 N.W.2d 282 (Ct. App. 1999), aff'd in part, rev'd in part, 235 Wis. 2d 781, 611 N.W.2d 906, 2000 WI 68 (reversal on other grounds).

¶ 8. Such distinctions between these two different theories of liability became blurred by the confusing form of the question submitted to the jury. Primarily this confusion resulted because the pertinent special verdict question was posed in the disjunctive, leaving it impossible to determine what question the jury answered.

If, and only if, you answered Question Two "yes," then answer this question, Question No. Three.' During [DeVries's employment], was the defendant [HIL] negligent with respect to the hiring, training or supervision of Dean DeVries or the supervision of Susan Stauss? (Emphasis added.)
Answer: Yes.

Likewise, we cannot know what the jury considered when answering "no" to the cause question referring back to the breach question:

If, and only if, you answered Questions Two and Three "yes," then answer this question. Question No. Four: Was such negligence of [HIL] a cause of the wrongful acts of its employee Dean DeVries?
Answer: No. (Emphasis added.)

¶ 9. After the jury verdict came in, a motions-after-verdict hearing was held. There, the trial court changed the jury's answer to question four from a "no" to a "yes." The trial court reasoned:

1 am changing [the answer to question four from a no to a yes] — Even though I believe that I need not in order to sustain a Judgment. But I am, in order to rectify any clarification, and I believe in conformity with the evidence that was presented during the trial, changing the answer of Question No. Four from no to yes; and grant Judgment on the Verdict in the sum of $3,010,000, plus tax, costs and interest against [HIL],

¶ 10. We will not address HIL's argument that the trial court erred when it changed the jury's answer to question four. We do not decide this or any of the issues HIL brings up on appeal because our determination that the real controversy was not fully tried is dispositive. Consequently, we hold that the complaint sufficiently states a cause of action in negligence based on HIL's failure to supervise Stauss. However, the question remains whether HIL breached this duty to Stauss. Therefore, reversal and a new trial are necessary.

STANDARD OF REVIEW

¶ 11. Both ch. 752 of the Wisconsin Statutes and our supreme court's decision in Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990), give this court broad discretionary reversal power. WISCONSIN STAT. § 752.35 (1997-98) provides in pertinent part:

In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried,. . . the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may... remit the case to the trial court... for a new trial.

¶ 12. When the real controversy has not been fully tried, it is unnecessary for us to first conclude that the outcome would be different on retrial. See Vollmer, 156 Wis. 2d at 19.

DISCUSSION

¶ 13. We consider it self-evident that a group home that takes on the supervision, custody and control of a disabled person stands in a "special relationship" to such person for purposes of the person's protection. Wisconsin already recognizes several "special relationships" that give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties. A psychiatrist and a therapist had a duty to prevent emotional harm to the parents of a patient whose treatment allegedly caused false memories of parental abuse where some harm was foreseeable. See Sawyer v. Midelfort, 217 Wis. 2d 795, 813, 579 N.W.2d 268 (Ct. App. 1998), aff'd, 227 Wis. 2d 124, 595 N.W.2d 423 (1999). Certain caregivers, such as hospitals and prisons, assume enhanced responsibilities in protective or custodial situations, and this increased duty obligates the caregivers to shield the protected person from the foreseeable consequences of injurious conduct. See Jankee v. Clark County, 2000 WI 64, ¶ 92, 235 Wis. 2d 700, 612 N.W.2d 297. An adult who voluntarily takes on the supervision, custody or control of a visiting child stands in a "special relationship" to such child for purposes of the child's protection. See Gritzner, 228 Wis. 2d at 554.

¶ 14. On appeal, Stauss presented, for the first time, the persuasive authority of Niece v. Elmview Group Home, 929 P.2d 420 (Wash. 1997). In Niece, as in the case at hand, a developmental^ disabled woman brought an action for damages against a private group home after she was sexually assaulted by a staff member at the home. The Niece court explained that a group home's function is to provide care for those who are unable to provide care for themselves because of physical or mental impairment. See id. at 424. In Niece, the court pointed out that "residents of group homes are more vulnerable to abuse by staff than by visitors or other third parties." Id. at 425. Staff members have greater access to residents than the general public and residents are unable to protect themselves and are thus dependent on their caregivers for their personal safety. See id. at 424-25. Sexual assault may be foreseeable unless it is so out of the ordinary or improbable as to be completely outside the realm of expectability. See id. at 427.

¶ 15. We agree with Niece's logic. Like the Niece court, we recognize that a group home has a duty to protect its residents from the harm against which they are least able to protect themselves — abuse at the hands of staff. See id. at 425. We therefore adopt the Niece reasoning and hold that: "(1) the special relationship between the group home and its vulnerable residents gives rise to a duty of reasonable care, owed by the group home to its residents, to protect the residents from all foreseeable harms, and (2) sexual assault by a staff member is not a legally unforeseeable harm." Id. at 422.

¶ 16. In the case at hand, the jury learned that: HIL was a group home, Stauss was a resident of HIL, DeVries was a staff member of HIL, and DeVries sexually assaulted Stauss. The jury was not informed that HIL and Stauss had a "special relationship" which carried a duty on HIL's part to protect Stauss from, all foreseeable harm. The jury was not aware that sexual assault by a group home staff member is not a legally unforeseeable harm.

¶ 17. We recognize that the court below did not have the benefit of precedent to rely upon. With our adoption of a Niece-like tort, the parties, the trial court and therefore the jury will have a framework on which to base argument, instruction, and decision, respectively. The jury will have an opportunity to hear the real controversy be tried under the proper analysis. We caution that we do not purport to suggest an outcome. We simply provide the proper avenue in which to determine whether a duty was breached. With that, the trial court decision is reversed and the cause is remanded for a new trial.

By the Court. — Judgment reversed and cause remanded with directions.

       Cornelia DeLange Syndrome involves two prominent areas of concern, mental and physical: (1) retardation or severe cognitive delays; basically functioning more like a young child than an adult as far as cognitive ability is concerned. If the individual has cognitive functioning at the level of a child, he or she is also going to socially function much like a child; (2) there can be some physical deformities. There is generally shortness of stature and a number of other physical factors.

       In order to provide a context for the reader, special verdict questions one and two are as follows:
      Question No. One: While an employee of the Defendant [HIL] during 1996 and 1997, did Dean DeVries commit wrongful acts, to-wit; sexual contacts, with the plaintiff Susan Stauss?
      Answer: Yes.
      (Answered by the Court)
      Question No. Two: Were such wrongful acts a cause of injury to the Plaintiff Susan Stauss?
      Answer: Yes.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.