author: ANDERSON, EJ.

text:
    Cesare Bosco, Plaintiff-Respondent, v. Labor & Industry Review Commission, Defendant, A.T. Polishing Company and Shelby Insurance Company, d/b/a Insura Property & Casualty Insurance Company, Defendants-Appellants.

    Court of Appeals

      No. 03-0662.

      Submitted on briefs June 24, 2003.—

      Decided September 3, 2003.

    2003 WI App 219
    (Also reported in 671 N.W.2d 331.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Michael C. Frohman of Kasdorf Lewis & Swietlik, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James A. Pitts of Schoone, Leuck, Kelley, Pitts & Knurr, S.C., Racine.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.

       Petition to review granted 11-17-03.

   ANDERSON, EJ.

¶ 1. This appeal is brought under the Worker's Compensation Act; specifically at issue is the interpretation of Wis. Stat. § 102.23(5) (2001-02). A.T. Polishing Company (A.T.) and Shelby Insurance Company (Shelby) appeal a circuit court order reversing the Labor & Industry Review Commission's (LIRC's) conclusion that it was reasonable under § 102.23(5) for Shelby to have delayed making payments to A.T.'s employee Cesare Bosco even though he had an undisputed permanent total disability due to occupational exposure occurring while an employee at A.T. We affirm the circuit court's reversal and its decision to remand this case for further proceedings before the Department of Workforce Development, Worker's Compensation Division.

¶ 2. Facts. The following facts are taken from LIRC's findings of fact. These facts are undisputed and are conclusive on appeal so long as they are supported by credible and substantial evidence (factual findings include the drawing of one of several reasonable inferences from undisputed facts). See Beverly Enters, v. LIRC, 2002 WI App 23, ¶ 16, 250 Wis. 2d 246, 640 N.W.2d 518.

¶ 3. This case began when Bosco filed an application with his employer, A.T., seeking compensation for pulmonary problems due to occupational exposure. The application recited that the date of injury was "occupational; 7/22/96." The insurer as of that date was Shelby. In its answer to the application, Shelby initially contested the nature and extent of disability and whether the exposure caused the disability. However, Shelby conceded that the occupational exposure alleged in the application actually occurred on or about the time claimed.

¶ 4. Thereafter, a hearing took place where Shelby, for the first time, disputed the 1996 date of disability. Shelby asked to amend its answer in order to change the date of disability from 1996 to 1993. The administrative law judge, Thomas J. McSweeney (ALJ), declined to permit Shelby to amend. (Wisconsin Admin. Code § DWD 80.08 permits amendments as a matter of right only until the date the hearing notice goes out.) The ALJ held Shelby liable for Bosco's permanent total disability based on a November 1996 date of disability and LIRC affirmed the ALJ by an order dated April 27, 1999.

¶ 5. Shelby appealed LIRC's decision to the circuit court. In its reply brief, Shelby specifically stated that it did not contest the finding of permanent total disability from occupational exposure, but that the issue in dispute was LIRC's legal conclusion that Bosco's last day of work in 1996 was the date of disability.

¶ 6. Ultimately, the circuit court affirmed LIRC's decision affirming the ALJ's order holding Shelby liable for Bosco's permanent total disability based on a November 1996 date of disability.

¶ 7. Bosco sought payment pending appeal under Wis. Stat. § 102.23(5), which provides:

(5) The commencement of action for review shall not relieve the employer from paying compensation as directed, when such action involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies.

¶ 8. Bosco asserted that Wis. Stat. § 102.23(5) applied during judicial review of LIRC's April 1999 order because the date of disability dispute necessarily implicated the question of liability between Shelby and another insurer. That is, Bosco asserted that Shelby's argument on appeal only raised the question of liability between Shelby and some other insurer in 1993.

¶ 9. Shelby argued that Wis. Stat. § 102.23(5) contemplates the actual presence of another insurer in the action. Shelby contended that the statute should be read to contemplate a dispute between several insurers, who are parties to the action, as to which is the liable insurer. Shelby contended that the statute does not apply when one insurer unilaterally raises the issue of some unnamed insurer's liability.

¶ 10. Based on its interpretation of Wis. Stat. § 102.23(5), Shelby chose not to pay compensation during judicial review of LIRC's April 1999 order. In fact, Shelby did not pay until the supreme court denied its petition for review of our decision affirming LIRC's order.

¶ 11. Given Shelby's delay in payment, Bosco filed an Amended Application for Hearing seeking bad faith penalties under Wis. Stat. § 102.18(1)(bp) and Wis. Admin. Code § DWD 80.70(2). Bosco argued that Shelby unreasonably refused to pay pending appeal as required under Wis. Stat. § 102.23(5). (Bosco did not seek a penalty under Wis. Stat. § 102.22(1) for inexcusable delay.)

¶ 12. The ALJ found that Shelby's interpretation of Wis. Stat. § 102.23(5) — that it should be read to contemplate a dispute between several insurers who are parties to the action as to which is the liable insurer and that it does not apply when one insurer unilaterally raises the issue of some unnamed insurer's liability— was correct; he then denied Bosco's claim for bad faith. The ALJ also refused to reserve jurisdiction for any future claim for inexcusable delay under Wis. Stat. § 102.22.(1). Bosco filed a petition for review with LIRC.

¶ 13. LIRC affirmed the ALJ, dismissing Bosco's bad faith claim. LIRC concluded that Wis. Stat. § 102.23(5) is susceptible to more than one reasonable reading and held that there was a "reasonable basis'.' for Shelby's delay. Therefore, it concluded, Shelby cannot be said to have acted in a knowing or reckless disregard.

¶ 14. Thereafter, Bosco filed a complaint with the Kenosha county circuit court requesting judicial review of LIRC's decision. Bosco demanded that the findings and order of LIRC be set aside and that the circuit court award judgment in the amount of $15,000 as a bad faith penalty together with reimbursement for taxable costs and attorney's fees against Shelby and A.T.

¶ 15. After reviewing the parties' briefs, the circuit court concluded the following: that LIRC erred in its interpretation of Wis. Stat. § 102.23(5) and consequently, erred in its application of the law in the case; that its decision in the prior action between the parties contained the explicit finding: "the . . . employer's liability is not questioned"; that in the subsequent appeal, in which its decision was affirmed by the court of appeals and a petition for review was denied by the supreme court, no issue was taken with its explicit finding that the "employer's liability is not questioned"; and that, therefore; it was clear that Bosco was entitled to the payment of benefits from his employer, A.T.

¶ 16. The circuit court was not persuaded by Shelby's excuse for nonpayment, which contended that the amount and the obligor of the benefits were unknown until the outcome of the appeal. The circuit court pointed out that adjustments are an everyday feature of worker's compensation cases:

[I]ndeed,'a delay in payment on an appeal, which [Shelby] claim[ed] was justified in this case, is one such example. There is nothing at all extraordinary about such adjustments, which are obviously contemplated by the very statute in question.

¶ 17. The circuit court concluded that Shelby's appeal was in fact based on a coverage issue, despite Shelby's claim otherwise. The court stated that a review of the entire history of the controversy "demonstrate [d] unequivocally" that the appeal was part of a "tardily-conceived effort by Shelby to escape liability" on Bosco's claim by attempting, for the first time, on the day of the administrative hearing, to lay the loss onto another insurer. The circuit court pointed out:

Indeed, if there were no other insurer, and I have found nothing in the record conclusively proving that there was, the loss for the conceded injury would fall squarely on the A.T. Polishing Company. That is a coverage issue, and camouflaging it as a dispute over the date of the loss does not alter that fact.

¶ 18. Finally, the circuit court found it "abundantly clear" that the purpose of the statute is to insure that injured workers will not have to wait for the outcome of a dispute between the employer and the insurer, or between multiple insurers, to begin the collection of benefits for an unchallenged injury. The circuit court determined that Shelby brought an appeal exclusively to dispute coverage with A.T. and/or "with a phantom insurer." It held that neither Shelby nor A.T. was relieved of the obligation to make the required payments.

¶ 19. The circuit court reversed LIRC's decision, holding that it erred in its interpretation of Wis. Stat. § 102.23(5) and "consequently, in its application of the law." It then remanded the case to LIRC "for a proper determination of such penalties as are authorized by law and the facts of this case." A.T. and Shelby appeal.

¶ 20. Relevant Statutes. Wisconsin Stat. § 102.18(1)(bp) provides:

The department may include a penalty in an award to an employee if it determines that the employer's or insurance carrier's suspension of, termination of or failure to make payments or failure to report injury resulted from malice or bad faith. This penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. The department may award an amount which it considers just, not to exceed the lesser of 200% of total compensation due or $15,000. The department may assess the penalty against the employer, the insurance carrier or both. Neither the employer nor the insurance carrier is liable to reimburse the other for the penalty amount. The department may, by rule, define actions which demonstrate malice or bad faith.

¶ 21. Wisconsin Admin. Code § DWD 80.70 provides:

Malice or bad faith. (1) An employer who unreasonably refuses or unreasonably fails to report an alleged injury to its insurance company providing worker's compensation coverage, shall be deemed to have acted with malice or bad faith.
(2) An insurance company or self-insured employer who without credible evidence which demonstrates that the claim for the payments is fairly debatable, unreasonably fails to make payment of compensation or reasonable and necessary medical expenses, or after having commenced those payments, unreasonably suspends or terminates them, shall be deemed to have acted with malice or in bad faith.

¶ 22. The statute that is the crux of this appeal is Wis. Stat. § 102.23 and provides in relevant part:

Judicial review.... (5) The commencement of action for review shall not relieve the employer from paying compensation as directed, when such action involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies.

¶ 23. Standard of Review. Wisconsin Stat. § 102.18(l)(bp) provides that LIRC may assess up to 200% of compensation due to a bad faith refusal to pay worker's compensation due the employee, subject to a maximum penalty of $15,000. Beverly, 250 Wis. 2d 246, ¶ 15. The test for bad faith is whether the claimant has shown: (1) the absence of a reasonable basis for the employer's or insurer's decision to deny benefits; and (2) the employer's or insurer's knowledge or reckless disregard of a lack of a reasonable basis for denying or delaying payment. Id.

¶ 24. LIRC's findings of fact are conclusive on appeal so long as they are supported by credible and substantial evidence, and factual findings include the drawing of one of several reasonable inferences from undisputed facts. Id., ¶ 16. Whether a particular set of facts constitutes bad faith is a question of law. Id.

¶ 25. There are three distinct levels of deference granted to agency decisions: great weight deference, due weight deference and de novo review. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). Which level is appropriate "depends on the comparative institutional capabilities and qualifications of the court and the administrative agency." Id. (citation omitted).

¶ 26. Although we are not bound by an agency's conclusion of law, we may accord it deference. Beverly, 250 Wis. 2d 246, ¶ 17. We give great weight deference when:

(1) the agency was charged by the legislature with the duty of administering the statute; (2)... the interpretation of the agency is one of long-standing; (3)... the agency employed its expertise or specialized knowledge in forming the interpretation; and (4)... the agency's interpretation will provide uniformity and consistency in the application of the statute.

Id. (citation omitted). We also give great weight to an agency's interpretation of a statute when it is intertwined with factual determinations or with value or policy judgments. Id. We give a lesser amount of deference — due weight — when the agency has some experience in the area, but has not developed the expertise that necessarily places it in a better position than the court to make judgments regarding the interpretation of the statute. Id.

¶ 27. Under the great weight standard, we uphold an agency's reasonable interpretation of the statute if it is not contrary to the clear meaning of the statute, even if we conclude another interpretation is more reasonable. Id., ¶ 18. Under the due weight standard, we uphold the agency's reasonable interpretation if it comports with the purpose of the statute and we conclude there is not a more reasonable interpretation. Id. At all times we are mindful of the goal of statutory interpretation, which is to discern and give effect to the intent of the legislature. See County of Jefferson v. Renz, 231 Wis. 2d 293, 301, 603 N.W.2d 541 (1999). In determining legislative intent, first resort must be to the language of the statute itself. Weiss v. Regent Props., Ltd., 118 Wis. 2d 225, 229, 346 N.W.2d 766 (1984). When a statute is plain and unambiguous, interpretation is unnecessary, and intentions cannot be imputed to the legislature except those to be gathered from the terms of the statute. Id. at 229-30. In short, if the language of the statute is plain and unambiguous, we need not look beyond it to determine the meaning of the statute. City of Muskego v. Godec, 167 Wis. 2d 536, 545, 482 N.W.2d 79 (1992).

¶ 28. We give no deference to the agency, and review an issue de novo, when the issue before the agency is one of first impression or the agency's position has been so inconsistent as to provide no real guidance. Lopez v. LIRC, 2002 WI App 63, ¶ 11, 252 Wis. 2d 476, 642 N.W.2d 561.

¶ 29. Moreover, where we conclude that an administrative agency has misinterpreted a statute, we do not owe it any deference because such misinterpretation is an erroneous exercise of discretion. See DOR v. Sentry Fin. Servs. Corp., 161 Wis. 2d 902, 910 n.7, 469 N.W.2d 235 (Ct. App. 1991) ("A tribunal abuses its discretion when it proceeds on an erroneous view of the law.").

¶ 30. Finally, in deciding an appeal from a circuit court's order affirming or reversing an administrative agency's decision, we review the decision of the agency (i.e., LIRC), not that of the ALJ or the circuit court. See Lopez, 252 Wis. 2d 476, ¶ 9.

¶ 31. Discussion. LIRC determined that Shelby was not guilty of bad faith. Under Wis. Stat. § 102.18(l)(bp), LIRC retains almost total discretion in the area of bad faith. However, in reaching its bad faith determination, LIRC also concluded that Shelby's interpretation of Wis Stat. § 102.23(5) was reasonable. Our review focuses specifically on LIRC's conclusion that Shelby's interpretation of § 102.23(5) was reasonable. As such, we do not owe LIRC any deference because LIRC acknowledged in its order of June 28, 2002, that it has never interpreted § 102.23(5).

¶ 32. We conclude that Wis. Stat. § 102.23(5) is plain and unambiguous and LIRC erred by concluding that Shelby's interpretation of § 102.23(5) was reasonable. Section 102.23(5) states:

The commencement of action for review shall not relieve the employer from paying compensation as directed, when such action involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies. (Emphasis added.)

The intent of this language is unequivocal: an employer must make payment of benefits during judicial review when the only question is who will pay the benefits. Id. In this case, Shelby conceded an occupational injury. Its only contest in that regard was whether there was permanent total disability or permanent partial disability — and ultimately Shelby did not dispute permanent total disability.

¶ 33. The purpose of the Worker's Compensation Act drives our holding. "The basic purpose of the worker's compensation act is to provide prompt justice for injured workers to prevent, as far as possible, the delays that might arise from protracted litigation." Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733, 738, 469 N.W.2d 203 (Ct. App. 1991). Further, "the worker's compensation act must be. liberally construed to effectuate that policy which the legislature sought to advance by its passage." Cruz v. DILHR, 81 Wis. 2d 442, 450, 260 N.W.2d 692 (1978). An interpretation of Wis. Stat. § 102.23(5) that would permit an employer or insurer to impugn liability on a phantom insurance company would be tantamount to permitting employers and insurers to engage in mischief and to avoid paying benefits that they concede are due to the injured employee. We conclude that § 102.23(5) is plain and unambiguous and, by its terms, does not permit such tactics.

¶ 34. Moreover, the only indication that Shelby believed that there was a question of liability between it and another insurance company was when, at the last minute, it attempted to claim that Bosco's date of injury was in October 1993. Shelby asked the ALJ to allow it to amend its answer to include the new date of October 1993. The ALJ refused. .

¶ 35. Finally, we disagree with the argument that Shelby's insured, A.T., has no liability for bad faith claims handled separately from that of its insurer. Wisconsin Stat. § 102.23(5) plainly requires the employer to pay the benefits when (1) it is contesting liability with its insurer or (2) two or more insurance companies are contesting liability with each other.

¶ 36. We reject the notion that any reasonable interpretation of Wis. Stat. § 102.23(5) allows the injured employee to be deprived of conceded benefits while insurers and/or employers battle over liability. We affirm the circuit court and remand this case to LIRC for proceedings consistent with this opinion. LIRC must consider whether A.T., Shelby, or both are liable for bad faith penalties under Wis. Stat. § 102.18(l)(bp). LIRC will be free to consider all of the factors that go into a bad faith determination, except that of Shelby's interpretation of § 102.23(5) — in other words, LIRC can go back to "square one" but in so doing it cannot ignore our conclusion that, as a matter of law, Shelby's interpretation of § 102.23(5) is unreasonable.

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

       All references to the Wisconsin Statutes are to the 2001-02 statutes unless otherwise noted.

       LIRC also addressed the fact that its resolution of the case required consideration of the related, but unpleaded, issue of inexcusable delay under Wis. Stat. § 102.22(1). It held:
      Because the commission resolves that issue against [Bosco], and for the reasons of administrative economy cited by the ALJ, this order shall be final with respect to any claims arising under Wis. Stat. § 102.22(1) based on Shelby Mutual's failure to pay under Wis. Stat. § 102.23(5) as well.
      Consistent with the ALJ's decision, however, this order shall be left interlocutory to permit orders and awards for future medical expense and all possible future claims, other than the penalty claims resolved herein.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Guardianship of Therese B.: Walworth County, Petitioner-Respondent, v. Therese B., Respondent-Appellant.

    Court of Appeals

      No. 03-0967.

      Submitted on briefs August 14, 2003.—

      Decided September 3, 2003.

    2003 WI App 223
    (Also reported in 671 N.W.2d 377.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Gary Rehfeldt, assistant corporation counsel - Walworth County, Elkhorn.
    Before Anderson, EJ., Brown and Snyder, JJ.

       Petition to review dismissed 10-6-03.

   ANDERSON, EJ.

¶ 1. Wisconsin makes full due process statutorily available to individuals subject to involuntary guardianship and protective placement petitions. Among the protections available is the requirement that an expert witness cannot simply summarize the findings and opinions of others but must reach an independent opinion only after a disinterested review of all relevant records. The record in this case does not support Therese B.'s contention that the expert witness simply regurgitated the opinions of others and the circuit court erred in not sustaining her objection to the admission of the expert's testimony and opinion. In addition, there is substantial and credible evidence to support the circuit court's conclusion that Therese is incompetent and in need of protective placement. Therefore, we affirm.

PROCEDURAL BACKGROUND

¶ 2. Cheryle Gasch, a social worker with the Wal-worth County Department of Human Services (County) filed a Petition for Guardianship and Protective Placement of Therese. The petition alleged that Therese required a permanent guardian and protective placement because "[d]ue to Chronic mental illness (Schizophrenia Paranoid Type) she is substantially unable to manage her property or care for herself." The circuit court appointed a guardian ad litem and a psychologist to furnish the court with a written report concerning Therese's mental condition. Therese opposed the petition and the state public defender appointed adversary counsel for her.

¶ 3. At the evidentiary hearing, the County presented the testimony of the examining psychologist, Dr. Steven Braam, and the social worker. Therese lodged an objection to the testimony of Dr. Braam; she contended that Dr. Braam could not testify about the opinions formed by any other physician or psychologist who may have examined her because such testimony would be hearsay and would violate her confrontation rights. The circuit court overruled the objection, concluding that Dr. Braam could rely upon collateral sources, including the opinions of others, in testifying as to his professional opinion. The court also concluded that because Dr. Braam's testimony was an exception to the hearsay rule, there was no violation of Therese's confrontation rights. Dr. Braam testified that in his professional opinion Therese suffered from schizophrenia, paranoid type, the condition was permanent, and she has a primary need for residential custody and placement. The social worker also testified that Therese had a primary need for residential care and custody. Therese presented the testimony of Dr. Ronald G. Rubin, a psychiatrist who examined Therese on behalf of the State of Wisconsin, to determine if she matched the federal government's criteria for having a serious mental illness. He testified that he strongly disagreed with the diagnosis of schizophrenia, paranoid type, and believed that her problems were caused by Graves' Disease. At the conclusion of the hearing, the circuit court granted the petition, appointed a guardian for Therese and ordered her to be protectively placed. Further facts will be set forth later.

DISCUSSION

¶ 4. On appeal, Therese contends that the circuit court erred in admitting the written report and testimony of Dr. Braam, the licensed psychologist appointed to examine her pursuant to Wis. Stat. § 880.33(1) (2001-02). She complains that Dr. Braam's report and testimony were based entirely on hearsay because she did not cooperate with his examination and he instead had to reply upon the reports previously prepared by Robert Loiben, M.D., and David Thompson, Ph.D. Therese argues that because the County did not call Dr. Loiben or Dr. Thompson to testify, she was denied the opportunity to cross-examine them and to challenge their qualifications and diagnosis. She claims that Dr. Braam simply restated and summarized the findings of others and she was deprived of her right to cross-examine those who had previously examined her, a right guaranteed by § 880.33(2)(a) 1.

¶ 5. She also contends that the evidence is insufficient to support the circuit court's conclusion that she is incompetent due to a "mental disability." Finally, she asserts that even if there is sufficient evidence to support the conclusion that she is incompetent, there is no evidence that she is in need of protective placement.

A. Hearsay Testimony of Examining Psychologist

¶ 6. Before considering Therese's first argument, we turn to the County's proposition that she is estopped from "complaining that Dr. Braam's testimony and report were based on hearsay because she refused to talk with him, forcing that result." Wisconsin Stat. § 880.33(1) provides that the examining professional inform the proposed ward that

he or she has a right to remain silent and that the examiner is required to report to the court even if the person remains silent. The issuance of such a warning to the person prior to each examination establishes a presumption that the person understands that he or she need not speak to the examiner.

It would be fundamentally unfair and a denial of due process to assure a person, through the warning required by § 880.33(1), that he or she has the right to remain silent and then penalize him or her for exercising that right by holding his or her silence judicially estops him or her from challenging the testimony of the reporting professional.

¶ 7. We agree with Therese that Wis. Stat. § 880.33(2)(a)l guarantees her the right to cross-examine the physician or psychologist appointed to examine her and report to the circuit court. In R.S. v. Milwaukee County, 162 Wis. 2d 197, 209, 470 N.W.2d 260 (1991), the supreme court held that in contested guardianship proceedings, the petitioner was required "to produce the licensed professional reporting to the court to testify in person. . . and that the proposed ward has the right to cross-examine the witness." The court also provided that:

A witness in a contested guardianship proceeding would have to be qualified to give a medical or psychological opinion on, for example, a diagnosis of the proposed ward's mental disorder or disability and whether the proposed ward's inability to care for himself or herself is caused by the mental condition alleged in the petition, not a physical disability. Section 880.01(4).

R.S., 162 Wis. 2d at 210 n.10.

¶ 8. It is well settled that it is "proper for a physician to make a diagnosis based in part upon medical evidence of which he has no personal knowledge but which he gleaned from the reports of others." Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284, 299, 254 N.W.2d 255 (1977). However, there are two important qualifications of this rule. First, although Wis. Stat. § 907.03 allows an expert to base an opinion on hearsay, it does not transform the hearsay into admissible evidence. State v. Watson, 227 Wis. 2d 167, 198, 595 N.W.2d 403 (1999). The circuit court must determine when the underlying hearsay may reach the trier of fact through examination of the expert, with cautioning instructions, and when it must be excluded altogether. Id. at 200-01. In State v. Coogan, 154 Wis. 2d 387, 399 n.4, 453 N.W.2d 186 (Ct. App. 1990), we sounded a cautionary note:

We need not reach the question of whether an expert's opinion based solely on inadmissible evidence, but that of a type reasonably relied on in his field, is admissible. However, this court has suggested that at some point when the reliability of the underlying evidence is called seriously into question, it is permissible to bar the expert's testimony.

¶ 9. Second, Wis. Stat. § 907.03 does not give license to the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. State v. Williams, 2002 WI 58, ¶ 19, 253 Wis. 2d 99, 644 N.W.2d 919. In Williams, the supreme court relied upon United States v. Lawson, 653 F.2d 299 (7th Cir. 1981), to reach this conclusion. In Lawson, the challenge was that the admission of hearsay in the testimony of an examining psychiatrist violated Lawson's right to confront the witnesses against him. Id. at 301. The examining psychiatrist testified that he never interviewed Lawson privately but reached his opinion by relying upon reports and material he received from two treating physicians, other staff at the hospital and other sources. Id. The Seventh Circuit agreed with Lawson that "the introduction of expert testimony based in large part on hearsay may raise serious constitutional problems if there is no adequate opportunity to cross-examine the witness." Id.

An expert's testimony that was based entirely on hearsay reports, while it might satisfy Rule 703, would nevertheless violate a defendant's constitutional right to confront adverse witnesses. The Government could 'not, for example, simply produce a witness who did nothing but summarize out-of-court statements made by others. A criminal defendant is guaranteed the right to an effective cross-examination.

Id. at 302 (footnote omitted). The court also noted that the right of confrontation might necessitate giving a defendant the opportunity to cross-examine the person or persons who prepared the underlying data on which the expert relied. Id. at 302 n.8.

¶ 10. Therese argues that in permitting Dr. Braam to testify to his opinion, which was not based upon personal knowledge coming from an interview with her but was based on the reports of two other professionals, she was denied the opportunity to cross-examine the actual authors of Dr. Braam's opinion. Because this is a civil proceeding there is no independent right to confront and cross-examine expert witnesses under the state and federal constitutions. See W.J.C. v. Vilas County, 124 Wis. 2d 238, 240, 369 N.W.2d 162 (Ct. App. 1985). The issue Therese presents is essentially a challenge to the procedures used to appoint a guardian and protectively place an individual. These procedures must conform to the essentials of due process. Wis. Stat. § 880.33(2).

¶ 11. In W.J.C. we held that the approach used in Mathews v. Eldridge, 424 U.S. 319 (1976), to analyze a due process claim was appropriate when considering a procedural due process claim brought under the state's mental commitment law. W.J.C., 124 Wis. 2d at 240. We now hold that the same approach should be used when assessing procedural due process claims brought under the guardianship and protective placement laws of this state. The Mathews test "involves balancing three factors: 1) The private interest affected by the official action, 2) the risk of erroneous deprivation of the interest through the procedures used and the probable value of additional or substitute procedural safeguards, and 3) the government's interest." W.J.C., 124 Wis. 2d at 240.

¶ 12. Therese has a huge liberty interest at stake because "[protective placements . . . are the only involuntary commitments under Wisconsin law that are indefinite in duration and thereby are tantamount to a life sentence to a nursing home or other custodial setting." State ex rel. Watts v. Combined Cmty. Servs. Bd., 122 Wis. 2d 65, 76-77, 362 N.W.2d 104 (1985). In Watts, the supreme court quoted with approval from Vitek v. Jones, 445 U.S. 480, 492 (1980) (citation omitted):

The loss of liberty produced by an involuntary commitment is more.than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital "can engender adverse social consequences to the individual" and that "[wjhether we label this phenomena 'stigma' or choose to call it something else... we recognize that it can occur and that it can have a very significant impact on the individual."

¶ 13. The use of an expert witness, who has not personally examined the individual, as a conduit for the opinions of other examining professionals poses a substantial risk that Therese will be erroneously deprived of her liberty. Whether or not a guardian will be appointed and Therese protectively placed requires the government to prove by clear and convincing evidence that she is suffering from a mental disease or disability, that such condition is permanent, that she is substantially incapable of providing for her own care, and that she has a need for residential care and custody. See Wis JI — Civil 7060. To meet this burden of proof the government must present a witness who is qualified by experience, training and independent knowledge of Therese's mental health to give a medical or psychological opinion on each of these elements. R.S., 162 Wis. 2d at 210 n.10. If the professional appointed to examine Therese relies only upon the opinions of those who have previously examined her, she is denied the opportunity to use cross-examination to discover the truth; she is unable to adequately probe the professional's qualifications, the facts underlying the opinion and the method undertaken to reach the opinion. The finder of fact will be without the original evidence it needs to decide whether the government met its burden of proof.

¶ 14. The probable value of requiring the testimony of a professional who has an opinion based upon more than the opinion of others is sizeable. The court appoints a professional it has trust in to examine the proposed ward, see Wis. Stat. § 880.33(1); the court, the finder of fact and the proposed ward expect that the report of the professional will be based upon firsthand knowledge and not what other professionals have concluded.

¶ 15. The government has several interests at stake. It is interested in the finder of fact correctly finding the facts. It is interested in providing services to "any citizen of the state, suffering from the infirmities of aging, chronic mental illness, mental retardation, other developmental disabilities or like incapacities incurred at any age," and to provide those services in a manner that places "the least possible restriction on personal liberty and exercise of constitutional rights consistent with due process and protection from abuse, exploitation and neglect." Wis. Stat. § 55.001. It is impossible to determine the government's interest in additional fiscal or administrative burdens that might be entailed by requiring the testimony of a professional who has examined the proposed ward.

¶ 16. Our balancing of the Mathews factors leads us to conclude that permitting an examining professional to be nothing more than a conduit for the opinions of others would violate a proposed ward's due process rights. In a guardianship and protective placement proceeding, the finder of fact might make a decision that will result in a life sentence to a nursing home. See Watts, 122 Wis. 2d at 76-77. That decision is essentially a medical question that turns on the meaning of facts interpreted by expert psychiatrists and psychologists. Parham v. J.R., 442 U.S. 584, 609 (1979). Therefore, it is crucial that the examining professional reach his or her conclusion through an independent evaluation of the proposed ward and not through a review of the opinions of other expert psychiatrists and psychologists.

¶ 17. This is not to say that the proposed ward's rightful refusal to participate in the court-ordered evaluation will obstruct a guardianship and protective placement proceeding. When the proposed ward has refused to cooperate, the examining professional is still free to review all of the records that are available in reaching his or her opinion. It is well settled that an expert may rely upon reports and information provided by others: "[I]t is proper for a physician to make a diagnosis based in part upon medical evidence of which he has no personal knowledge but which he gleaned from the reports of others." Vinicky v. Midland Mut. Cas. Ins. Co., 35 Wis. 2d 246, 254, 151 N.W.2d 77 (1967). An expert is permitted to base an opinion on hearsay if it is of a type customarily relied upon in that field in forming opinions. In the medical field, the evidence contained in treatment records is routinely relied upon by physicians to treat a patient; if it is deemed trustworthy enough to support treatment decisions, it is trustworthy enough to support a professional opinion. Id. at 254-55.

¶ 18. Due process requires that the examining professional, when confronted with an uncooperative individual, engage in an independent review of all of the records that are available. Due process prevents the examining professional from regurgitating the opinions of other physicians and psychologists, without independently confirming the facts those opinions are based upon.

¶ 19. Our review of the record satisfies us that Dr. Braam was not simply a conduit for the opinions of other professionals who had previously examined Therese. Although he did review the reports prepared by Drs. Loiben and Thompson, he also reviewed an affidavit in support of a 2001 petition for the involuntary commitment of Therese, prepared by her treating psychiatrist, along with medical records from St. Luke's Medical Center, Holton Manor Nursing Home, and the County's Department of Health and Human Services. Dr. Braam testified that these records are the types of records he normally relies upon when rendering a professional opinion on whether a proposed ward is in need of guardianship.

¶ 20. While Therese refused to participate in an initial interview with Dr. Braam, she did speak with him when he visited her in preparation for the eviden-tiary hearing. He testified that the information he gained from the recent visit with Therese cemented his opinion that she had schizophrenia, paranoid type. The record establishes that in stating his professional opinion, Dr. Braam was not regurgitating the opinions of other professionals; he was stating an independent opinion based upon the medical observations and findings of others, as well as his own observations and findings, information which he normally relies upon in his daily practice. See State ex rel. T.R.S. v. L.F.E., 125 Wis. 2d 399, 402, 373 N.W.2d 55 (Ct. App. 1985). We conclude that the testimony of Dr. Braam did not violate Therese's procedural due process right to cross-examine the court-appointed expert because he had an independent professional opinion and was not simply a conduit for the opinions of others.

B. Sufficiency of the Evidence

¶ 21. Therese also argues that even if Dr. Braam's report and testimony are admissible, the evidence is insufficient to support the conclusion that she is incompetent within the meaning of Wis. Stat. § 880.01(4) and requires protective placement under Wis. Stat. § 55.06. A discussion of the standard of review we apply is in Coston v. Joseph P., 222 Wis. 2d 1, 22-23, 586 N.W.2d 52 (Ct. App. 1998) (citation omitted):

The circuit court's factual findings will not be overturned unless clearly erroneous. See § 805.17(2) Stats. The issues of whether the evidence satisfies the legal standard for incompetency and whether the evidence supports protective placement are questions of law, which we review de novo. At a hearing on a petition for guardianship, the petitioner bears the burden of proving, by clear and convincing evidence, that the proposed ward is incompetent.

1. Incompetence

¶ 22. An incompetent is defined in Wis. Stat. § 880.01(4), as "a person adjudged by a court of record to be substantially incapable of managing his or her property or caring for himself or herself by reason of infirmities of aging, developmental disabilities, or other like incapacities. Physical disability without mental incapacity is not sufficient to establish incompetence." There are two elements to incompetency: an incapacity to care for oneself and the condition producing the incapacity is a mental disability. R.S., 162 Wis. 2d at 203.

¶ 23. The circuit court found that Therese was incompetent due to "[o]ther like incapacities," defined in Wis. Stat. § 880.01(8) as "those conditions incurred at any age which are the result of accident, organic brain damage, mental or physical disability, continued consumption or absorption of substances, producing a condition which substantially impairs an individual from providing for the individual's own care or custody." In reaching this finding the circuit court found that Therese's desire to terminate her social security and medical assistance and disconnect her pacemaker establish that she is delusional. Although the circuit court was unsure whether Therese had schizophrenia, it was satisfied that she had "other like incapacities" that prevent her from caring for herself.

¶ 24. The record supports the circuit court's findings that Therese is delusional. Dr. Braam testified that during his most recent visit with Therese she provided him information that reinforced his conclusion that she had schizophrenia. He testified that she believes "she has been or is being poisoned, that she has been inappropriately treated and diagnosed." He stated that Therese "explained to me that she did not wish to receive her Social Security benefits because she believed that the diagnosis of schizophrenia was inaccurate, illegal and fraudulent and that she believed that accepting Social Security funds based on that diagnosis was inappropriate for her to do." He related that Therese has written to her cardiologist requesting that he disconnect her pacemaker. He also offered the opinion that her delusional thought process interfered with her ability to make decisions for herself.

¶ 25. Therese submitted the testimony of Dr. Rubin, who had examined her on behalf of the State of Wisconsin to determine if she met the federal criteria for mental illness. He testified that in his professional opinion, Therese did not have schizophrenia, paranoid type, and, while she did have delusions, those delusions were not consistent with schizophrenia because her high blood sugars and Graves' Disease were alternative and reasonable explanations for her thought process. He opined that Therese has demonstrated that she has the capability of caring for herself because of her compulsion to set the record straight she is better off than if she had acquiesced to treatment.

¶ 26. The circuit court was presented with a classic battle of the experts; it had to consider diametrically opposing opinions from two highly qualified professionals. As the finder of fact, the circuit court "was free to weigh the experts' testimony when it conflicted and decide which was more reliable; to accept or reject the testimony of any expert, including accepting only parts of an expert's testimony; and to consider all of the non-expert testimony in deciding whether" Therese was incompetent. See State v. Kienitz, 227 Wis. 2d 423, 441, 597 N.W.2d 712 (1999) (citation omitted). In this case, the circuit court, by making findings of fact paralleling Dr. Braam's testimony, implicitly assigned greater credibility and weight to his testimony; as an error-correcting court, we must defer to this assessment of the credibility of the experts and the weight of the testimony.

¶ 27. Given that the circuit court's findings of historical facts are supported in the record, we will now apply them to the definition of "incompetence" in Wis. Stat. § 880.01(4). We determine that as a matter of law Therese is incapable of making and carrying out rational decisions about her own medical and physical care — functional incapacity, R.S., 162 Wis. 2d at 203— because she has a mental illness that is manifested in a bizarre delusional thought process — mental disability. Id.

2. Protective Placement

¶ 28. Before a circuit court can order the protective placement of a mentally ill individual, it must find:

1. That the individual to be placed is incompetent;
2. That the individual has a primary need for residential care and custody;
3. That, as a result of mental illness, the individual is so incapable of providing for his or her own care or custody that the condition creates a substantial risk of serious harm to the individual or others;
4. That the individual's disability is permanent or likely to be permanent.

K.N.K. v. Buhler, 139 Wis. 2d 190, 197, 407 N.W.2d 281 (Ct. App. 1987).

¶ 29. Therese argues that the circuit court's ordering of protective placement is not supported by the record. Specifically, she contends that the evidence supports the conclusion that she could live independently as long as she received protective services, such as the assistance of a visiting nurse. She faults the court for failing to articulate why protective placement is needed to meet her medical needs.

¶ 30. Because we have already found that Therese has a functional incapacity caused by a mental disability, we will focus our attention on her position that her condition does not create a substantial risk of serious harm to herself and she does not require residential care and treatment. The circuit court made thorough findings of fact, including that Therese's desire to terminate her benefits will result in her being discharged from the nursing home she is in and that she has no alternative living arrangements. The court found that her desire to disconnect her pacemaker could result in her imminent death. The court also found that she was in need of residential caire and treatment because the "chronicity of her illnesses" makes it imperative that she receive twenty-four hour nursing care.

¶ 31. The record contains credible and substan-tiad evidence to support the circuit court's findings of fact. It is not necessary for us to repeat the testimony of Dr. Braam that supports the circuit court's findings of fact. In addition to the testimony of Dr. Braam, there is the comprehensive evaluation and testimony of social worker Cheryle Gasch. She testified that Therese "has impairment with decision making, planning, goals, follow through, that in addition to her complicated list of medical problems interferes with her ability to take care of herself." She also testified as to why residential care and placement are necessary to monitor and deal with Therese's multiple medical diagnoses.

¶ 32. We conclude that Therese's current mental and physical conditions warrant residential care and treatment because without it there is a substantial risk of harm to her. It is evident that her mental disability, accompanied by her bizarre delusional thought process, prevents her from monitoring and managing her multiple medical diagnoses. Therese's delusions have placed her in danger as demonstrated by her desire to disconnect her pacemaker and terminate her social security benefits and medical assistance. We hold that she is in need of protective placement under Wis. Stat. § 55.06.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 880.33(2)(a)l contains the procedural due process guarantees for every person alleged to be incompetent and in need of a guardian.
      The proposed ward has the right to counsel whether or not present at the hearing on determination of competency. The court shall in all cases require the appointment of an attorney as guardian ad litem in accordance with s. 757.48(1) and shall in addition require representation by full legal counsel whenever the petition contains the allegations under s. 880.07(lm) or if, at least 72 hours before the hearing, the alleged incompetent requests; the guardian ad litem or any other person states that the alleged incompetent is opposed to the guardianship petition; or the court determines that the interests of justice require it. The proposed ward has the right to a trial by a jury if demanded by the proposed ward, attorney or guardian ad litem, except that if the petition contains the allegations under s. 880.07(lm) and if notice of the time set for the hearing has previously been provided to the proposed ward and his or her counsel, a jury trial is deemed waived unless demanded at least 48 hours prior to the time set for the hearing. The number of jurors shall he determined under s. 756.06(2)(b). The proposed ward, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including the physician or psychologist reporting to the court under sub. (1). The attorney or guardian ad litem for the proposed ward shall be provided with a copy of the report of the physician or psychologist at least 96 hours in advance of the hearing. Any final decision of the court is subject to the right of appeal.

       We reject the County's suggestion that Therese should have deposed or subpoenaed the professionals who had previously examined her if she had wanted to contest their findings. It is the County that bears the burden of proof. See R.S. v. Milwaukee County, 162 Wis. 2d 197, 210, 470 N.W.2d 260 (1991). As we explain, due process requires the County to produce one or more licensed professionals to testify in person as to their independent opinions; the County does not meet its burden of proof by presenting an expert who serves as nothing more than a conduit for the opinions of others.

       This well-settled rule is codified in Wis. Stat. § 907.03:
      The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

       The same result was reached in State v. Towne, 453 A.2d 1133 (Vt. 1982), where the testifying expert consulted with the author of a book he had relied upon and told the jury the author agreed with his diagnosis. Id. at 1134. In reversing Towne's conviction, the Vermont Supreme Court held that it was a violation of the hearsay rule to use one expert to introduce the opinions of nontestifying experts. Id. at 1135. The court also determined that the expert's recitation of the nontestifying doctor's opinion violated Towne's right of confrontation because Towne was prevented from cross-examining and exploring the qualifications of the nontestifying expert. Id. at 1136.

       The due process requirements for the appointment of a guardian also apply to proceedings to protectively place an individual. Wis. Stat. § 55.06(6).

       Cross-examination has been described as the "greatest legal engine ever invented for the discovery of truth." Vogel v. State, 96 Wis. 2d 372, 388, 291 N.W.2d 838 (1980) (citation omitted).

       We note that neither the definition of "incompetent" nor "other like incapacities" requires that a name — e.g., schizophrenia or bipolar disorder — be given to the mental disability that interferes with the individual's ability to care for himself or herself. The statute is not concerned with the medical title for the mental disability; rather, it is concerned with how the disability affects the individual's ability to function.

       The comprehensive evaluation prepared by a social worker lists thirty-five medical diagnoses for Therese, from "Rehabilitation Therapy Secondary to Acute Renal Failure" to "Remote History of Alcohol Abuse" and including congestive heart failure and Graves' Disease.


author: CANE, C.J.

text:
    Julie Aasen-Robles, Plaintiff-Appellant, Minnesota Department of Human Services and Corporate Benefit Services of America, Involuntary-Plaintiffs-Appellants, v. Lac Courte Oreilles Band of Lake Superior Chippewa Indians and St. Paul Companies, Defendants-Respondents.
    Court of Appeals

      No. 03-1143-FT.

      Submitted on briefs August 12, 2003.—

      Decided September 3, 2003.

    2003 WI App 224
    (Also reported in 671 N.W.2d 709.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Andrew H. Morgan of Charl-ton, Morgan & Joy, Ltd. of Milwaukee.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Eric D. Hylden of Downs, Reyelts, Leighton, Bateman & Hylden, Ltd. of Duluth, MN.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. This case presents the issue of whether an employee exclusion in a general liability insurance policy bars coverage for Julie Aasen-Robles, a Lac Courte Oreilles Band of Lake Superior Chippewa Indians' employee, when she slipped and fell on her employer's premises before she started work. Because a reasonable insured would interpret the language to only encompass those injuries originating from the employee's job and incurred while the employee is engaged in work, we reverse the judgment and remand to the trial court.

Background

¶ 2. For purposes of this appeal, the facts of the case are undisputed. Julie Aasen-Robles was an employee of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians (LCO) and worked at LCO's casino in the housekeeping department. On December 31, 1998, Aasen-Robles slipped and fell on an icy patch of sidewalk while walking toward an employee entrance on LCO's premises. When she fell, Aasen-Robles was on her way to work and had not yet punched in or commenced work. Her injuries prevented her from returning to her job.

¶ 3. LCO conducts its casino business pursuant to a gaming compact with the State of Wisconsin. At the time of the accident, the Gaming Compact of 1991 was in effect. This compact regulates the conduct of class III gaming by LCO. See 25 U.S.C § 2703(6)-(8) (2001) (defining class III gaming). Among other things, it required LCO to maintain public liability insurance coverage with minimum policy limits. In light of this requirement, LCO purchased a Public Entity General Liability Insurance Policy from St. Paul Fire & Marine Insurance Company (St. Paul). The gaming compact did not require LCO to provide worker's compensation for its employees, but LCO self-insured its employees to provide coverage for all work-related injuries or illnesses. LCO retained Corporate Benefit Services of America (CBSA) to administer this program.

¶ 4. Aasen-Robles obtained treatment for her injuries at the LCO clinic. There, she was referred to a hospital for physical therapy. While the CBSA administrator initially concluded her physical therapy would be paid by its policy, the administrator later told Aasen-Robles her injuries were not work-related because she was not "in the door" or "on the clock" when she fell. The administrator advised Aasen-Robles to file a claim under LCO's general liability insurance. Aasen-Robles eventually sued St. Paul.

¶ 5. Before trial, St. Paul moved for summary judgment. The circuit court granted summary judgment to St. Paul for two reasons. First, the court stated the insurance policy "specifically excluded employees of the tribe from coverage. Aasen-Robles was an employee of the tribe at the time of her injury. She was on her way to work, on the employer's property when she fell and was injured.. . . The policy does not cover employees." Second, the court rejected the fact that the administrator of CBSA informed Aasen-Robles her injury would be covered under the general liability policy because these representations could not change the language of the policy. Aasen-Robles appeals.

¶ 6. Aasen-Robles argues she is entitled to coverage for her injuries from St. Paul for two reasons. First, under the terms of the gaming compact, she argues her injury was sufficiently related to the "conduct of class III gaming" to allow recovery against St. Paul. Second, she claims the exclusion in St. Paul's policy that bars coverage for injuries to employees "arising out of and in the course of [her] . . . employment" should not apply to her because she was not working at the time of her injury.

¶ 7. St. Paul, on the other hand, claims Aasen-Robles is not entitled to coverage under the policy for two reasons. First, St. Paul argues LCO was only required to obtain liability insurance for "class III gaming activities" under the gaming compact. Aasen-Robles, however, was not engaged in class III gaming activity at the time she slipped and fell. Therefore, the policy does not afford coverage to her claim. Second, St. Paul claims Aasen-Robles's injuries fall under the employee exclusion.

¶ 8. We conclude the circuit court erred by granting summary judgment to St. Paul. In so doing, we hold (1) the Gaming Compact of 1991, which required LCO to obtain liability insurance for class III gaming activities, has no bearing on whether Aasen-Robles's injuries are covered under the provisions of St. Paul's general liability insurance policy, and (2) Aasen-Robles's injuries are not barred by the exclusion because a reasonable insured would interpret the language to encompass only those injuries originating from an employee's job and incurred while the employee is engaged in work.

Discussion

¶ 9. When reviewing a summary judgment, our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). We perform the same function as the trial court. Id. On summary-judgment, a court must view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 512, 383 N.W.2d 916 (Ct. App. 1986). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08.

¶ 10. Turning to the parties' first arguments, both seem to agree that in order for the injuries to be compensable under the insurance policy, a connection must be made between the general liability insurance policy, the gaming compact (which only regulates class III gaming activities), and the circumstances surrounding Aasen-Robles's injuries. Aasen-Robles spends a great deal of time in her appellate brief explaining her injury was related to class III gaming activities by virtue of her job duties, despite the fact she was not working, and thus concluding her injuries involve class III gaming activities which entitles her to coverage under the policy In contrast, St. Paul argues Aasen-Robles was not engaged in gaming activities when she slipped and fell, but was rather engaged in, what it calls, "employment activities." Consequently, St. Paul claims Aasen-Robles is not entitled to coverage under the insurance policy.

¶ 11. Both parties construct their arguments on the premise that Taylor v. St. Croix Chippewa Indians, 229 Wis. 2d 688, 694-95, 599 N.W.2d 924 (Ct. App. 1999), stands for the proposition that an insurance policy purchased in light of a gaming compact will always, be limited to class III gaming activities. This is a misunderstanding of Taylor.

¶ 12. In Taylor, the St. Croix nation entered into a gaming compact with Wisconsin to operate gaming facilities on its reservation. This compact, like the compact between Wisconsin and LCO, required St. Croix to "maintain public liability insurance with limits of not less than $250,000 for any one person." Id. at 694. In response, St. Croix purchased a comprehensive business policy that included general liability insurance. This insurance policy, similar to the insurance policy in this case, excluded employees injured in the course and scope of employment.

¶ 13. Taylor was a St. Croix employee and was injured while building a youth center on St. Croix nation territory. Taylor did not dispute his injuries were barred from coverage under the liability insurance by virtue of the employee exclusion. Rather, Taylor argued the construction of the youth center was a class III gaming activity because it was funded by gaming revenues. The exclusion of his injuries under the liability policy violated the gaming compact's requirement to obtain liability insurance for all class III gaming activities. Accordingly, Taylor claimed he was entitled to sue St. Croix because they waived their sovereign immunity by failing to insure a class III gaming activity as mandated by the compact, or, in the alternative, sought to reform the general liability insurance contract to strike the provision excluding employees from coverage.

¶ 14. We held Taylor was not engaged in a class III gaming activity when he was injured while constructing the youth center. Id. at 695. The mere fact the construction project was funded by gaming revenue did not transform the activity into a gaming activity. Id. Thus, there was no reason to address Taylor's arguments of whether St. Croix waived its sovereign immunity by failing to insure a particular gaming activity or if reformation of the insurance policy was appropriate. The insurance policy's employee exclusion applied to the circumstances of Taylor's injuries did not violate the gaming compact. Id. at 694-95. The .gaming compact "required St. Croix to maintain liability insurance only with respect to its gaming activities." Id. at 694. We noted that "Wisconsin has no reason or authority to impose an obligation on the tribe to maintain liability insurance for anything beyond its gaming activities" because to do so would "obviously reach beyond the purpose and intent of the gaming compact." Id. at 695.

¶ 15. The parties interpret this to mean the gaming compact's requirement to obtain liability insurance for class III gaming activities necessarily limits the coverage of an insurance policy, obtained in light of the gaming compact, to gaming activities only. The parties misunderstand the distinction Taylor makes between what a gaming compact requires of a tribe and what the tribe actually does in response to the requirement.

¶ 16. The above-quoted language from Taylor recognizes that tribes are only required to obtain liability insurance for its class III gaming activities because the gaming compact only concerns class III gaming activities. But what the gaming compact requires of a tribe and what the tribe actually does in light of the requirement are two very different issues. Put simply, the gaming compact sets the floor, not the ceiling, for liability coverage requirements. If in light of this, the tribe purchases a comprehensive general liability policy that does not limit its coverage to class III gaming activities, the insurance policy will not be reformed to restrict the scope of coverage to such activities unless reformation is otherwise appropriate. See Pouwels v. Cheese Makers Mut. Cas. Co., 255 Wis. 101, 106, 37 N.W.2d 869 (1949) (reformation of insurance policy-allowed only where evidence clearly and satisfactorily establishes the terms of the policy are not fully or correctly set forth in policy because of inadvertence, accident, or mistake). Rather, we will interpret the policy just as any other contract or insurance policy: that is, we start with the language of the policy. Maas v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992).

¶ 17. The language of the policy here does not limit coverage to bodily injuries stemming from class III gaming activities. Instead, it provides broad coverage for "bodily injury" caused by an "event." The policy defines "bodily injury" as "physical harm... to the physical health of other persons." "Event" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The plain meaning of this language cannot reasonably be said to limit the scope of coverage to bodily injuries arising from class III gaming activities.

¶ 18. The next issue is whether Aasen-Robles's injuries are excluded by virtue of the employee exclusion. The exclusion states, "We won't cover bodily injury to an employee of the protected person arising out of and in the course of his or her. . . employment." The interpretation of an insurance contract and the conclusion as to whether coverage exists are questions of law which we review de novo. Ledman v. State Farm Mut. Auto. Ins. Co., 230 Wis. 2d 56, 61, 601 N.W.2d 312 (Ct. App. 1999). We interpret insurance contracts to give effect to the intentions of the parties. Kennedy v. Washington Nat. Ins. Co., 136 Wis. 2d 425, 428, 401 N.W.2d 842 (Ct. App. 1987). We give meaning to the terms of the policy "in accordance with the principle that the test is not what the insurer intended the words to mean but what a reasonable person in the position of an insured would have understood the words to mean." Id. at 428-29 (citations omitted). We give words "the common and ordinary meaning [they] would have in the mind of a lay person." Employers Health Ins. v. General Cas. Co., 161 Wis. 2d 937, 946, 469 N.W.2d 172 (1991). In the end, "Interpretation of the policy should further the insured's expectations of coverage." Arnold E Anderson, Wisconsin Insurance Law § 1.1(A) (4th ed. 1998).

¶ 19. Aasen-Robles argues the trial court erred by applying the exclusion to her because the plain language of the exclusion does not exclude all employees from coverage all the time. We agree. The plain language of the exclusion only bars coverage for employee injuries that arise out of and occur in the course of employment.

¶ 20. Aasen-Robles further argues the exception should not be applied to her because she was not in the course of employment when she was injured, nor did her injury arise out of her employment. Aasen-Robles claims she was simply walking to the employee entrance before beginning work. Because she was not "on the job," her injuries cannot reasonably be said to fall under the exclusion.

¶ 21. St. Paul counters this argument by contending the exclusion unambiguously excludes all "work-related injuries," and since Aasen-Robles fell at the employee entrance on her way to work, there can be no doubt that her injury arose out of and occurred in the course of her employment, St. Paul cites Makal v. Industrial Comm'n, 262 Wis. 215, 54 N.W.2d 905 (1952), and Wis. Stat. § 102.03(1)(c)2 to support its contention that an employee is in the course of employment when going to and from their employment while on the employer's premises.

¶ 22. St. Paul's reliance on these authorities is misplaced for two reasons. First, both authorities implicate worker's compensation law principles. The issue here does not involve worker's compensation law because LCO is not subject to Wisconsin's worker's compensation system. Second, worker's compensation laws are remedial in nature and are consequently "liberally construed in favor of including all services that can in any sense be said to reasonably come within it." Severson v. Industrial Comm'n, 221 Wis. 169, 175, 266 N.W. 235 (1936). Because of this liberal construction, to use worker's compensation cases as precedent for construing the exclusion in the general liability policy is at odds with insurance law principle that we are to interpret the language of an insurance policy according to what a reasonable person in the position of an insured would have understood the words to mean. See Caporali v. Washington Nat'l Ins. Co., 102 Wis. 2d 669, 675-76, 307 N.W.2d 218 (1981).

¶ 23. Interpreting the exclusion from the standpoint of a reasonable insured and using the common, ordinary definitions of words a lay person would give them, we hold that Aasen-Robles's injuries did not arise out of or occur in the course of her employment. The lay dictionary definition of "arise" means "to originate from a specified source." Webster's Third New Int'l Dictionary 117 (unabr. 1993). "Course" refers to the "act or action of moving in a particular path from point to point." Id. at 522. And "employment" is an "activity in which one engages and employs his time and energies ... as . . . work." Id. at 743. Putting the pieces together, a reasonable insured would understand an injury to be excluded under the employee exclusion if an employee suffers injuries originating from his or her job and while the employee is engaged in work. These facts are not present here, so the exclusion does not apply.

¶ 24. We find further support for our holding in Artukovich v. St. Paul-Mercury Indent. Co., 310 P.2d 461, 468 (Cal. App.2d 1957). There, the California Court of Appeals construed a similar exclusion in a general liability provision and held that it applied only where the employee was at the place of employment, during working hours, and actually engaged in employment duties at the time of the injury. As the court explained, "Everyone who is engaged in the employment of the insured would be its employee, but not every employee is engaged in the employment of the insured all the time." Id. Consistent with this reasoning, we hold the employee exclusion does not apply to the facts of this case because Aasen-Robles's injuries did not originate from her employment and she was not actually engaged in her employment duties at the time her injury occurred. Therefore, we reverse the judgment and remand the matter to the circuit court for further proceedings.

By the Court. — Judgment reversed and cause remanded for further proceedings.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The compact states:
      II. DECLARATION OF POLICIES AND PURPOSES: The State and the Tribe agree that this Compact is entered for the following purposes and is to be construed and implemented to give effect to these policies:
      A. To authorize the operation of certain Class III gaming by the Tribe on Tribal lands in the State of Wisconsin as a means of promoting Tribal economic development, self-sufficiency, and strong Tribal government

       The relevant section of the compact states:
      XIX. LIABILITY FOR DAMAGE TO PERSONS AND PROPERTY
      A. During the term of this Compact, the Tribe shall maintain public liability insurance with limits of not less than $250,000 for any one person and $4,000,000 for any one occurrence for personal injury, and $2,000,000 for any one occurrence for property damage.

       The court's conclusion is not clear in its written order. On the one hand, it appears to say all employees are not covered under the policy, regardless of the circumstances surrounding the injury. On the other hand, it referred to circumstances when employees are actually working.

       Because we hold the exclusion does not apply because of what a reasonable insured would understand it to mean, we do not address whether the representations CBSA made to Aasen-Robles affects the terms of the policy. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) ("As one sufficient ground for support of the judgment has been declared, there is no need to discuss the others urged.").

       Aside from St. Paul's bald assertion that the insurance policy is limited by its own terms to class III gaming activities, neither party has cited any language in the policy that limits the scope of its coverage to such activities. Our review of the policy likewise finds no terms in the policy that limit its scope to class III gaming activities.

       Indian tribes are " 'distinct, independent political communities' " that retain their right to self-govern. Davids v. Coyhis, 869 F. Supp. 1401, 1405 (E.D. Wis. 1994) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978)). Because of this, Indian tribes generally are not subject to the laws of the state wherein their territory resides. Indian tribes are, however, subject to federal statutes or treaties with the United States and cannot supplant these laws with their own. Davids, 869 F. Supp. at 1405-06. Because worker's compensation is a matter left to the states, Indian tribes are not subject to these schemes, regardless of whether they are compulsory for every other employer in the state.

       Other jurisdictions have rejected this approach. See Cowen v. Mercury Fin. Co., 607 So.2d 1067, 1068 (La. App. 1992); Milbank Mut. Ins. Co. v. Biss, 161 N.W.2d 622, 625 (Minn. 1968); Progressive Cas. Ins. Co. v. Marca, 788 F.2d 490, 491 (Or. App. 1990). Focusing on how the language of the exclusion is virtually identical to language in worker's compensation statutes, these jurisdictions use worker's compensation precedents to construe the language in the general liability exclusions. See, e.g., Biss, 161 N.W.2d at 625 ("[W]e are unwilling to hold that one who is injured is an employee for purposes of applying the compensation act but is not an employee for purposes of affording liability insurance coverage."). However, as explained before, because LCO did not have a worker's compensation scheme at the time of the injury and because they are not subject to Wisconsin's worker's compensation system, we conclude it would be inappropriate to apply worker's compensation principles as precedent to construe the exclusion at issue.