author: HIGGINBOTHAM, J.

text:
    Karen Suchomel and Dennis Suchomel, Plaintiffs-Respondents-Cross-Appellants, Physicians Plus Insurance Corporation, Subrogated-Plaintiff, v. University of Wisconsin Hospital & Clinics and St. Paul Fire & Marine Insurance Company, Defendants-Cross-Respondents, Wisconsin Patients Compensation Fund and Dr. John Sandin, Defendants, Dr. Daniel Resnick, Defendant-Appellant.
    Court of Appeals

      No. 2004AP363.

      Submitted on briefs February 10, 2005.

      —Decided October 20, 2005.

    2005 WI App 234
    (Also reported in 708 N.W.2d 13.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James McCambridge, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Pamela J. Smoler of Smoler Law Office, LLC, Monona.
    On behalf of the defendants-cross-respondents, the cause was submitted on the brief of David E. McFarlane and Sheila M. Sullivan oí Bell, Gierhart & Moore, S.C., Madison.
    Before Dykman, Deininger and Higginbotham, JJ.

       Petition to review denied 1-20-06.

   HIGGINBOTHAM, J.

¶ 1. Dr. Daniel Resnick appeals a judgment entered following a jury verdict in favor of Karen Suchomel and Dennis Suchomel in their medical malpractice action against Resnick, Dr. John Sandin, University of Wisconsin Hospital and Clinics (UWHC), St. Paul Fire & Marine Insurance Company and the Wisconsin Patients Compensation Fund. Resnick argues the trial court erroneously exercised its discretion in giving a res ipsa loquitur jury instruction because the instrumentality causing Karen's injuries was not in Resnick's exclusive control. Resnick asserts three surgeons participated in the surgery, including Resnick, Sandin and Dr. Michael Schurr, a general surgeon. However, according to Resnick, Schurr’s name was not included in the jury instruction, thus one of the two standards for giving the jury instruction was not met. Resnick further argues the trial court erroneously exercised its discretion by permitting the Suchomels to amend their pleadings to include a claim for Dennis's share of Karen's medical expenses and costs and by awarding those damages to him.

¶ 2. We conclude Resnick waived his objection to the res ipsa loquitur instruction by failing to raise it in a motion after verdict. We also conclude the trial court properly allowed the Suchomels to amend their pleadings and awarded damages to Dennis. Accordingly, we affirm the judgment against Resnick.

¶ 3. The Suchomels cross-appeal, arguing the trial court erred by dismissing their claim that Resnick was an ostensible agent of UWHC based on its interpretation of Wis. Stat. § 233.17(2)(b) (2003-04). We conclude, based on the plain and unambiguous language of § 233.17(2)(b), that Resnick was not an agent of UWHC, ostensible or otherwise. We therefore affirm the trial court's dismissal of this claim.

FACTS

¶ 4. Karen Suchomel underwent spine surgery to address intractable back pain and lumbar instability at the L4-L5 region other spine. The operation performed is described as an anterior lumbar inner body fusion at L4-L5 with BAK instrumentation and autograft. During the surgery, a complication arose where Karen suffered vascular injuries to her vena cava and iliac veins. As a result, Karen has since required extensive medical treatment. In addition, Karen will require lifelong medical care and will likely require graft replacement and/or revision.

¶ 5. Resnick was the attending neurosurgeon responsible for the spine surgery and was assisted by his resident, Dr. John Sandin. Schurr performed the first portion of the surgery known as the approach (i.e. the opening of the abdomen). Schurr was assisted by his resident, Dr. Jon Gould.

¶ 6. The Suchomels sued Resnick, Sandin, Schurr and Gould for the injuries Karen sustained during her surgery on the theories of negligence, failure to obtain informed consent and res ipsa loquitur. All four defendants testified in deposition that nothing Schurr or Gould did would have caused this injury. Consequently, Schurr and Gould were dismissed from the action. The Suchomels further alleged UWHC was legally responsible for Resnick's negligence under the theory of ostensible agency.

¶ 7. Prior to trial, Resnick and Sandin moved in limine to preclude the Suchomels from advancing their claim related to ostensible agency. Based on its reading of Wis. Stat. § 233.17(2)(b), the trial court granted this motion.

¶ 8. At trial, Resnick and Sandin argued Schurr was responsible for Karen's injury. During the jury instruction conference, Resnick argued Schurr should be included in the res ipsa loquitur instruction because the question remained over who had exclusive control over the instrumentalities giving rise to Karen's injuries. The jury returned a verdict in favor of the Su-chomels, finding Resnick 80% negligent and Sandin 20% negligent; the jury found no negligence on Schurr's part.

¶ 9. The Suchomels filed various post-trial motions, including a motion to amend the pleadings and for judgment in favor of Dennis. The trial court allowed Dennis to amend the pleadings to claim his marital share of medical expenses after the jury's verdict was returned and awarded him those damages. Resnick filed no motions after verdict except to stay execution of the judgment. Resnick appeals and the Suchomels cross-appeal. Further facts will be discussed as relevant.

DISCUSSION

Appeal

¶ 10. Resnick first argues the trial court erroneously gave the res ipsa loquitur instruction on the question of exclusive control. The Suchomels counter Resnick waived his right to appeal the res ipsa loquitur issue because Resnick failed to raise this objection in a motion after verdict. We agree. The well-established law in Wisconsin is that "the failure to include alleged errors in the motions after verdict constitutes a waiver of the errors." Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987). "This rule applies where a proper objection is made during the course of trial, but the error is not included in the motions after verdict." Id.

¶ 11. Resnick does not deny he failed to raise this objection by a motion after verdict. He claims, however, he preserved the objection by raising it during the jury instruction conference as required by Wis. Stat. § 805.13(3). Resnick asserts he was unable to locate any authority in Wisconsin requiring him to preserve his objection to the jury instruction by raising it in a motion after verdict. Such authority, however, exists. As we explained, a party waives all claims of error not raised in motions after verdict although a timely objection was made at trial. See Ford Motor Co., 137 Wis. 2d at 417. We see no reason why this rule should not apply to an asserted jury instruction error. Because Resnick did not preserve his objection to the res ipsa loquitur instruction in a motion after verdict, he has waived his right to object to it on appeal.

¶ 12. Resnick next argues the trial court improperly permitted the Suchomels to amend their pleadings after the jury verdict and erred by awarding damages to Dennis based on the amendment. Again, we disagree.

¶ 13. The Suchomels' original complaint includes a claim for past and future medical expenses for Karen. Post-trial, the Suchomels filed a motion to amend the pleadings pursuant to Wis. Stat. § 802.09(2) to add a claim for past and future medical expenses and costs on behalf of Dennis. Section 802.09(2) allows amendments to the pleadings to conform to the evidence and states:

If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice such party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

¶ 14. It is within the trial court's discretion to allow amendments of the pleadings until and even after judgment. Wright v. Mercy Hosp. of Janesville, Wisconsin, Inc., 206 Wis. 2d 449, 460, 557 N.W.2d 846 (Ct. App. 1996). However, an amendment to the pleadings may not unfairly deprive the adverse party of the opportunity to contest the issues raised by the amendment. Estate of Neumann v. Neumann, 2001 WI App 61, ¶ 129, 242 Wis. 2d 205, 626 N.W.2d 821. A trial court may amend the pleadings if the opposing party is not prejudiced by the amendment. American Fed'n of State, County, & Mun. Employees Local 1901 v. Brown County, 146 Wis. 2d 728, 737, 432 N.W.2d 571 (1988). In reviewing such actions by the trial court, we apply an erroneous exercise of discretion standard of review. Schultz v. Trascher, 2002 WI App 4, ¶ 14, 249 Wis. 2d 722, 640 N.W.2d 130.

¶ 15. The trial court granted the Suchomels' motion to amend the pleadings, concluding Resnick had the opportunity to challenge Dennis's claim for Karen's medical expenses and Resnick was not prejudiced in any way by the amendment. The trial court stated:

The motion to amend the complaint to include an explicit claim by Dennis for the medical expenses of Karen will be granted. It is true that on the state of the pleadings and the record as it stands right this moment, Gorman [v. Wausau Ins. Cos. 175 Wis. 2d 320, 499 N.W.2d 245 (Ct. App. 1993)] would be dispositive, but what was crucial in Gorman is that there was no claim asserted by the other spouse for the medical expenses. And here, the whole point of the motion is to amend the pleadings so as to assert expressly the kind of claim that was missing in Gorman.
Now, contrary to Dr. Sandin's position, the prerequisite for the use of section 802.09(2) is present here. The issue of Dennis's entitlement to recover one-half of the medical expenses for treatment of Karen's injuries caused by the defendant's negligence was not raised in the pleadings but was tried by implicit consent of all parties.
No objections to evidence of the marital relationship between Dennis and Karen was made, nor was any request ever made for a cautionary instruction to limit the jury's use of this evidence to only the consortium claim.
There is no evidence or even any argument that granting this motion to amend would or did cause any prejudice to any defendant. No suggestion has been offered as to what different steps would have been taken or what different evidence would have been offered or what different arguments might have been made at trial if this claim had been originally pled.

¶ 16. We conclude the trial court properly exercised its discretion in permitting the Suchomels to amend their pleadings to include Dennis's claim for his share of the medical expenses and by awarding him such damages. The trial court observed that the issue of Dennis's right to recover damages for his share of Karen's medical expenses "was tried by implicit consent of all parties." The record supports this conclusion. Resnick had the opportunity, which he exercised, to challenge Dennis's share of Karen's medical expenses by challenging the reasonableness and necessity of the expenses. Resnick also did not object to evidence pertaining to the Suchomels' marriage.

t9]

¶ 17. The trial court also correctly observed Resnick was not prejudiced by the amendment. See American Fed'n, 146 Wis. 2d at 737. The trial court noted that it asked Resnick's trial counsel what prejudice would have visited upon Resnick by permitting the Suchomels' amendment. Resnick's counsel conceded his presentation of the case would not have been affected in any way. Accordingly, we agree with the trial court's conclusion that Resnick was not prejudiced by this late amendment.

¶ 18. Resnick argues that because the jury did not award Dennis any damages for his loss of consortium claim and because Dennis neither pled nor requested the jury to award him damages for his marital share of medical expenses and lost wages, the trial court should not have allowed Dennis to amend the pleadings to include a claim for his marital share of medical expenses after the jury's verdict was returned. Resnick relies primarily on Gorman v. Wausau Ins. Cos., 175 Wis. 2d 320, 499 N.W.2d 245 (Ct. App. 1993), in support of this argument. Resnick's reliance on Gorman is misplaced.

¶ 19. In Gorman, plaintiff-husband Terry Gor-man was injured when a truck owned by the city of Oconto Falls turned left in front of his vehicle and Terry was unable to avoid a collision. Id. at 325. Terry and his wife Mari-Jo sued for Terry's personal injury damages, as well as Mari-Jo's claim for loss of consortium. Id. The jury awarded Terry damages for his personal injury claim but did not award Mari-Jo anything for her consortium claim. Id. at 326. The trial court then awarded Mari-Jo additional damages for medical expenses and wages, representing her share of marital property. Id. We reversed Mari-Jo's award, reasoning:

the jury failed to award Mari-Jo damages for her loss of consortium claim. In her separate cause of action, Mari-Jo did not request that the jury award damages for her share of medical expenses and lost wages. Under Schwartz [v. City of Milwaukee, 54 Wis. 2d 286, 195 N.W.2d 480 (1972)], she cannot now attempt to recover based on Terry's claim.

Gorman, 175 Wis. 2d at 331.

¶ 20. Here, the parties implicitly tried Dennis's claim for his marital share of the medical expenses. The Suchomels presented evidence of Karen's past and future medical expenses and that they were married and shared financial responsibility for all expenses. In Gorman, the non-injured spouse's claim was never tried nor presented; the non-injured spouse failed to advance any claim for medical expenses as marital property, either in the pleadings or at trial.

Cross-Appeal

¶ 21. The Suchomels cross-appeal, arguing the trial court erred in its interpretation of Wis. Stat. § 233.17(2)(b) to preclude the Suchomels from advancing their claim related to ostensible agency. The Su-chomels assert UWHC owed them a duty under the theory of ostensible agency for the substandard care provided by Resnick and Sandin. The Suchomels advance three arguments in support of this assertion: (1) Karen was unaware of Resnick's status as a faculty member of the University of Wisconsin Medical School before her surgery; she contends UWHC and Resnick held themselves out as being "members" of the same entity, giving the impression that Resnick was an agent of UWHC and that Resnick did nothing to disabuse Karen of this notion; (2) § 233.17(2)(b) does not limit UWHC's liability to them because Resnick was not acting as a faculty member or academic staff when he operated on Karen; and (3) the plain language of § 233.17(2)(b) indicates the legislature intended to limit its applicability to actual agency to the exclusion of ostensible or apparent agency. We reject these arguments.

¶ 22. We address Karen's contention that Wis. Stat. § 233.17(2)(b) does not apply to Resnick and that the legislature intended to limit the scope of the statute to actual agency. To do so, we must interpret the provisions of § 233.17(2). Statutory construction involves a question of law which we review de novo. Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996). When we construe a statute, we begin with the plain language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially-defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret a statute within its context, not in isolation but as part of the whole statute, in relation to the language of surrounding or closely-related statutes, and reasonably so as to avoid absurd or unreasonable results. Id., ¶ 46. When the statute is unambiguous, we apply the statute consistent with its plain and clear meaning. Id.

¶ 23. The Suchomels contend Resnick was not acting as a faculty member or academic staff when he operated on Karen, but rather as a state employee. Consequently, according to the Suchomels, Wis. Stat. § 233.17(2)(b) does not protect the University of Wisconsin Hospital and Clinics Authority (the Authority) from Resnick's liability.

¶ 24. Wisconsin Stat. § 233.17 limits the scope of liability of the Authority. Section 233.17 states:

(1) Neither the state, any political subdivision of the state nor any officer, employee or agent of the state or a political subdivision who is acting within the scope of employment or agency is liable for any debt, obligation, act or omission of the authority.
(2) (a) No officer, employee or agent of the board of regents, including any student who is enrolled at an institution within the University of Wisconsin System, is an agent of the authority unless the officer, employee or agent acts at the express written direction of the authority.
(b) Notwithstanding par. (a), no member of the faculty or academic staff of the University of Wisconsin System, acting within the scope of his or her employment, may be considered, for liability purposes, as an agent of the authority. [Emphasis added.]

¶ 25. Prior to the formation of the Authority, UWHC was part of the University of Wisconsin - Madison, a state agency, and all liability arising from faculty and the hospital was assumed by the state pursuant to Wis. Stat. §§ 893.82 and 895.46. See Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 107, 595 N.W.2d 392 (1999). The state no longer assumed liability for the Hospital after the Hospital severed its relationship with the University. However, the state retained liability for the faculty and other university staff and students under Wis. Stat. § 233.17.

¶ 26. The plain language of Wis. Stat. § 233.17(2)(b) prevents a faculty member from being deemed an agent of UW Hospital, either ostensibly or in fact. Section 233.17(2)(b) specifically states "no member of the faculty or academic staff of the University of Wisconsin System, acting within the scope of his or her employment, may be considered, for liability purposes, as an agent of the authority." Thus, based on the unambiguous language of this statute, if Resnick is either a faculty member or academic staff of the University of Wisconsin System and was acting within the scope of his employment when he negligently performed surgery on Karen, then he was not acting as "an agent of the authority," ostensibly or otherwise.

¶ 27. The Suchomels concede Resnick was a member of the faculty and academic staff at the medical school when he operated on Karen. They also concede Resnick was a state employee. This concession is based on Resnick's answer to the Suchomels' complaint where he admits being an employee of the state when Karen was under his care and was acting within the scope of his duties as a state employee at that time. The Su-chomels then claim, somewhat confusingly, that because Resnick concedes he was acting pursuant to his duties as a state employee when he operated on Karen, he does not come within the terms of Wis. Stat. § 233.17(2)(b). We reject this distinction.

¶ 28. The purpose of Wis. Stat. § 233.17(2)(b) is to avoid liability for UWHC. It is undisputed all faculty or academic staff of UWHC are employees of the state. Thus, the distinction drawn by the Suchomels between being a member of the faculty and a state employee is a distinction without á difference. In other words, a member of the faculty is also a state employee and thus not an agent of UWHC within the meaning of § 233.17(2)(b). Furthermore, the Suchomel's interpretation of this statute would render it meaningless. Under their construction the statute would not apply to faculty or academic staff of UWHC who, by definition, are also state employees. Thus, virtually no member of the faculty or academic staff would fall under § 233.17(2)(b). This, of course, is an absurd result because it would be contrary to the clearly stated purpose of the statute, which, as we noted, was to protect UWHC.

¶ 29. With respect to the Suchomels' argument that the legislature intended to limit the scope of Wis. Stat. § 233.17(2)(b) to actual agency, we observe that the text of the statute makes no such limitation. Indeed, the statute unambiguously encompasses all forms of agency, which necessarily includes actual, apparent, or ostensible. Moreover, the Suchomels offer no reasonable explanation for why the legislature would wish to limit this protection to just actual agency. Certainly, if the legislature intended the result the Suchomels argue, it would have said "as an actual agent of the authority." Of course, it did not and we see no reason why we should construe this statute in this manner.

¶ 30. Thus, because the undisputed facts establish Resnick was a faculty member of the University of Wisconsin medical school and acted within the scope of these duties when he performed surgery on Karen, we conclude he was not an "agent" of UWHC within the meaning of Wis. Stat. § 233.17(2)(b). Accordingly, we conclude the trial court correctly dismissed the Su-chomels' claim against UWHC based on ostensible agency.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Stat. § 805.13(3) states:
      Instruction and verdict conference. At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.

       Because our resolution of these two arguments is disposi-tive, we need not address Karen's first argument.

       The Authority was created by the legislature as "a public body corporate and politic" in order to, among other things, "maintain, control and supervise the use of' UWHC in order to deliver "comprehensive, high-quality health care to patients" in an "environment suitable for instructing medical and other health professions students," to sponsor and support "research in the delivery of health care" and to assist "health programs and personnel throughout the state...." Wis. Stat. §§ 233.02(1) and 233.04(3b)(a).

       Of course, there may be exceptions. However, for the purpose of this appeal, nobody disputes the general belief that all members of the faculty or academic staff of UWHC are employees of the state.


source: Caselaw Access Project

author: LUNDSTEN, PJ.

license: Public Domain

text:
    Wisconsin Insurance Security Fund and Eau Galle Cheese Factory, Plaintiffs-Appellants, v. Labor and Industry Review Commission and David Kallstrom, Defendants-Respondents.
    Court of Appeals

      No. 2004AP2157.

      Submitted on briefs February 10, 2005.

      —Decided October 20, 2005.

    2005 WI App 242
    (Also reported in 707 N.W.2d 293.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Christopher D. Walther of Walther Law Offices, S.C., Milwaukee.
    On behalf of the defendant-respondent Labor and Industry Review Commission, the cause was submitted on the brief of William W. Cassel, Madison.
    On behalf of the defendant-respondent David Kali-strom, the cause was submitted on the brief of Jeffrey J. Klemp of Wagner Law Firm, S.C., Menomonie.
    Before Lundsten, PJ., Dykman and Vergeront, JJ.
   LUNDSTEN, PJ.

¶ 1. This is a worker's compensation case. An employer, Eau Galle Cheese Factory, and the Wisconsin Insurance Security Fund appeal an order of the circuit court affirming an order of the Labor and Industry Review Commission regarding a worker's compensation claim. The Commission's order granted employee David Kallstrom's claim for compensation for a back injury, and ordered that Eau Galle Cheese reimburse Kallstrom's health insurance carrier, Benefit Plan Administrators, for reasonably required medical expenses it incurred. The Fund is involved because Eau Galle Cheese's worker's compensation insurer was in liquidation.

¶ 2. Eau Galle Cheese argues that the Commission misinterpreted the law governing compensable occupational diseases. According to Eau Galle, in the absence of identifiable traumatic injury-causing events, there can be no occupational disease injury. Eau Galle Cheese also argues that the evidence is insufficient to support the Commission's finding of a compensable occupational back injury. The circuit court rejected these arguments. We likewise reject them, and affirm the circuit court.

¶ 3. On a separate topic, Eau Galle Cheese argues that the Commission erred when it ordered Eau Galle to reimburse Kallstrom's health care insurer for expenses that the insurer incurred treating Kallstrom's compensable occupational back injury. Eau Galle Cheese argues that when a subrogated insurer, such as Kallstrom's health care insurer, has paid medical expenses that arise from a compensable occupational injury under the worker's compensation statutes, and when, as here, the employer's worker's compensation insurance carrier is in liquidation, Wis. Stat. § 646.31(11) (2003-04) precludes the Commission from ordering the employer to reimburse the subro-gated insurer. We agree and, therefore, reverse both the circuit court and the Commission in this respect.

Background

¶ 4. David Kallstrom began working for Eau Galle Cheese Factory in 1985. His work there required him to manually cut small blocks of cheese from larger blocks and manually stack the smaller blocks. The smaller blocks, together with the hoop used in stacking, averaged about thirty-five pounds. In August of 2000, Kallstrom was diagnosed with a herniated disk. An orthopedic surgeon, Dr. T. Sunil Thomas, diagnosed Kallstrom's condition as degenerative disk disease and disk herniation. Kallstrom underwent two surgeries to relieve the pain. He now suffers a 15% permanent partial disability as a result of his back problems. Kallstrom's health insurance carrier, Benefit Plan Administrators, covered $27,155.36 in medical expenses relating to this back injury.

¶ 5. In 2001, Kallstrom filed a claim with the Worker's Compensation Division of the Department of Workforce Development. Kallstrom asserted that his back injury was due to working fifteen years as a cheese maker at Eau Galle Cheese. The claim alleged that years of "extensive, frequent, and repetitive bending, lifting and twisting while cutting, forming and pressing cheese" was responsible for the injury. Both Eau Galle Cheese and its worker's compensation insurer, Reliance National Insurance Company, disputed the claim. At some point during these proceedings, the Wisconsin Insurance Security Fund assumed liability for Reliance when that company became insolvent and entered liquidation proceedings.

¶ 6. At a hearing on the matter, Eau Galle Cheese presented testimony from Dr. Stephen Barron. Dr. Barron gave extensive testimony explaining why he believed that it was not possible to identify Kallstrom's work at the cheese factory as the cause of his injury. The Commission also had before it the opinions of various treating physicians, including Dr. T. Sunil Thomas's opinion that Kallstrom's employment had caused the degenerative back condition. The Commission found that Kallstrom had sustained a compensable occupational back injury. Among other relief, the Commission ordered "the employer and its insurance carrier" to reimburse Kallstrom's health insurance carrier, Benefit Plan Administrators, the sum of $27,155.36.

¶ 7. Eau Galle Cheese and the Fund challenged the Commission's decision in circuit court. The circuit court issued an order affirming the Commission's order. The circuit court's order also clarified that the "Fund is not liable for Medical reimbursement" to Kallstrom's health care insurer. Although both parties discuss this issue in their respective briefs, the end result is that all parties agree the Fund is not liable.

Discussion

I. Occupational Disease Injury

¶ 8. The Commission found that Kallstrom suffered a compensable occupational disease injury as a result of repetitive strenuous job activity over an extended period of time. The Commission adopted Dr. T. Sunil Thomas's opinion that Kallstrom's back had " 'wor[n] out' after years of labor intensive work" at the Eau Galle Cheese Factory. In effect, the Commission concluded that, although there was no evidence that Kallstrom's back injury was the result of identifiable traumatic work-related injuries, his back injury was nonetheless compensable because Kallstrom's work at the cheese factory was a material contributory factor causing that injury.

¶ 9. The parties dispute whether a back injury caused by job activity, but not caused by one or more identifiable traumatic events, is a compensable occupational "disease" injury within the meaning of Wis. Stat. § 102.03(1)(e). Eau Galle Cheese argues that such an injury is not covered by § 102.03(l)(e) because it does not fit any existing definition of "occupational back disease" found in the case law. More specifically, Eau Galle Cheese argues that such an injury is not compensable under either Lewellyn v. DILHR, 38 Wis. 2d 43, 155 N.W.2d 678 (1968), or Shelby Mutual Insurance Co. v. DILHR, 109 Wis. 2d 655, 327 N.W.2d 178 (Ct. App. 1982). The Commission responds that Kallstrom's injury is a compensable injury caused by a "disease" within the meaning of § 102.03(1)(e) because that injury comports with our discussion of a compensable occupational back disease in Shelby Mutual. We agree with the Commission and first discuss Shelby Mutual,

¶ 10. Worker's compensation cases involve two types of compensable injuries: those caused by accidents, and those caused by occupational diseases. See Zabkowicz v. Industrial Comm'n, 264 Wis. 317, 319, 58 N.W.2d 677 (1953). An accidental injury is one that "results from a definite mishap; a fortuitous event, unexpected and unforeseen by the injured person." Shelby Mut., 109 Wis. 2d at 661 (citations omitted). An occupational disease injury is an injury that is "acquired as the result and an incident of working in an industry over an extended period of time." Id. (citations omitted). Here, we address the law regarding occupational disease injuries.

¶ 11. Eau Galle Cheese takes a narrow view of Shelby Mutual. Eau Galle argues that Shelby Mutual stands for the limited proposition that a back injury caused by a disease is compensable only if the injury is caused by a series of identifiable traumatic work-related injury-causing events. For support, Eau Galle Cheese relies on our use of the phrase "repeated work-related back trauma" in Shelby Mutual. Id. at 662. We disagree with Eau Galle Cheese's interpretation of Shelby Mutual.

¶ 12. It is true that the facts before us in Shelby Mutual involved repeated identifiable injury-causing events to an employee's lower back while performing work duties. Id. at 657. But in that case we also recognized that a compensable occupational disease injury may occur in the absence of identifiable traumatic events. In particular, we observed that a com-pensable occupational disease injury may be " 'acquired as the result... of working in an industry over an extended period of time.'" Id. at 661 (quoting Rathjen v. Industrial Comm'n, 233 Wis. 452, 460, 289 N.W. 618 (1940)). We quoted the Rathjen court's example of hernia cases:

"The difference between an occupational disease and an affliction resulting from an accident [both of which are compensable] is illustrated in hernia cases. Where hernia follows as a result of a definite accident the employee suffers an accidental hernia,... but where it develops as the result of certain types of lifting for a number of years, the employee may have an occupational hernia...."

Shelby Mut., 109 Wis. 2d at 662 (quoting Rathjen, 233 Wis. at 460-61; citations and emphasis omitted). Thus, in Shelby Mutual we recognized what is simple common sense: repetitive work activities may cause a compensable occupational disease injury even though the disease causing the injury is not caused by identifiable traumatic events.

¶ 13. Eau Galle Cheese argues that an occupational back injury can only be found compensable if it satisfies the third rule in Lewellyn. This argument misses the mark. In Lewellyn, the supreme court discussed the analysis that should apply when there is a preexisting degenerative condition. The court's lead-in to its three-rule analysis makes this clear: "From the preceding cases and others dealing with preexisting degenerative conditions, the following we feel represent an accurate appraisal of the factual situations which should determine whether or not the particular condition is recoverable . . . Lewellyn, 38 Wis: 2d at 58 (emphasis added). The situation we address here does not involve a preexisting condition; it involves an injury caused by work activity.

¶ 14. Moreover, whatever the reach of Lewellyn's three-rule analysis, it does not preclude our legal conclusion that a compensable occupational disease injury may occur in the absence of identifiable traumatic injury-causing events. This is apparent from the supreme court's subsequent decision in Swiss Colony, Inc. v. DILHR, 72 Wis. 2d 46, 240 N.W.2d 128 (1976).

¶ 15. In Swiss Colony, the supreme court addressed whether an employee's mental disability was a compensable occupational disease injury. The employee's work subjected her to numerous stresses and mounting pressures. She was eventually admitted to a hospital, suffering from weight loss, insomnia, exhaustion, and depression. Her diagnosis was schizophrenia. Id. at 49-50. The Swiss Colony court detailed the evidence showing that the employee's condition was caused by greater than normal "day-to-day mental stresses and tensions which all employees must experience," which is the applicable test for "nontraumatically caused mental injury." Id. at 51. The court did not identify any particular injury-causing events, but rather described an environment that had a cumulative effect on" the employee's mental health. Id. at 51-54. Pertinent here, the court rejected the argument that Lewellyn precluded finding a compensable occupational injury:

Lewellyn clearly stands for the proposition that there is a compensable injury caused by an accident where there is "a definitely preexisting condition of a progressively deteriorating nature" and the work activity precipitates, aggravates or accelerates this condition beyond normal progression. In [this] case there is no indication at all that [the employee] had previously suffered any kind of mental disease or debility. On the contrary, all of the evidence in the record indicates that she had been in normal mental health until her gradual decline and eventual breakdown in October 1971. It is true that. .. mental health specialists believe that all schizophrenics have a genetic predisposition to this condition .... But this mere predisposition or propensity is not the definitely preexisting, and progressively deteriorating condition envisioned by Lewellyn. The condition of schizophrenia does not exist until it is created by life stresses, and in this case it did not exist at all until [the employee's] gradual decline and breakdown in the fall of 1971. This is not a case where there is a history or evidence of prior mental or mental-physical disabilities later aggravated by work stresses. Therefore, the Lewellyn rule was erroneously applied to the facts of this case.

Swiss Colony, 72 Wis. 2d at 54-55 (footnote omitted). Thus, whatever the full meaning and reach of Lewellyn's three-rule analysis, it does not conflict with our conclusion that a compensable occupational disease injury may occur in the absence of identifiable traumatic injury-causing events.

¶ 16. In sum, we conclude that a compensable occupational disease injury may occur when an injury is caused by job activity over a period of time, regardless whether there are identifiable traumatic injury-causing events. Whether this standard is met in a particular case is a different matter. We next address whether the Commission properly concluded that Kallstrom suffered a compensable occupational disease injury.

II. Substantial and Credible Evidence

¶ 17. Eau Galle Cheese argues that the evidence is insufficient to support the Commission's finding of a compensable occupational back injury. Eau Galle's argument is twofold: first, that assertions by Kallstrom's most recent treating physician were rendered incredible as a matter of law by contrary assertions by a different doctor and, second, that the evidence presented did not show that work at the cheese factory caused Kallstrom's injury. We reject both prongs of this argument.

¶ 18. The applicable standard of review is found in Valadzic v. Briggs & Stratton Corp., 92 Wis. 2d 583, 286 N.W.2d 540 (1979). There, the supreme court stated:

The test to be applied in reviewing the Department's findings is whether "there is any credible evidence in the record sufficient to support the finding made by the Department. The assumption in that test is, of course, that the evidence is relevant, that it is evidentiary in nature and not a conclusion of law, and that it is not so completely discredited by other evidence that a court could find it incredible as a matter of law." In applying the credible evidence test, this court does not weigh conflicting credible evidence to determine what evidence shall be believed. If there is credible evidence to sustain the finding, irrespective of whether there is evidence that might lead to an opposite conclusion, we must affirm. There must be, however, such credible evidence that the findings will rest on facts and not on conjecture or speculation.
In evaluating medical testimony, the Department is the sole judge of the weight and credibility of the witnesses. The commission's finding on disputed medical testimony is conclusive. Where there are inconsistencies or conflicts in medical testimony, the Department, not the court, reconciles the inconsistencies and conflicts.

Id. at 592-94, 598 (citations and footnote omitted). This "any credible evidence" test results in substantial deference to the Commission's fact finding. See General Cas. Co. of Wis. v. LIRC, 165 Wis. 2d 174, 178, 477 N.W.2d 322 (Ct. App. 1991).

¶ 19. Eau Galle Cheese's attack on assertions by Kallstrom's treating physician fails because the attack relies on competing testimony the Commission found lacking in credibility. The contrary testimony was supplied by Dr. Stephen Barron. The Commission opined that Dr. Barron lacked credibility because of his reluctance to acknowledge that the strenuous work performed by Kallstrom at the factory could have been a material contributory factor in the onset of Kallstrom's back condition. We are not at liberty to reweigh Dr. Barron's testimony.

¶ 20. Furthermore, credible evidence affirmatively supports the Commission's findings. The nature of Kallstrom's work is undisputed. The work required Kallstrom to reach into the middle of a table that measured ten feet wide by five feet high so that he could manually cut large slabs of cheese with a hand-held knife. Kallstrom then used steel hoops to grasp the cheese blocks and manually stack them on a press. The average weight of these cheese blocks with the hoops was thirty-five pounds.

¶ 21. Kallstrom's most recent treating physician, Dr. T. Sunil Thomas, examined Kallstrom and discussed with him his work duties. The doctor also read Kallstrom's administrative testimony on the topic. Dr. Thomas stated that if the duration, frequency, and extent of workplace exposure was accurately described by Kallstrom, it was Dr. Thomas's opinion to a reasonable degree of medical probability that Kallstrom's work activities starting in 1985 and ending in 2000 were at least a material contributory factor in Kallstrom's back injury. There is no evidence in the record that Kallstrom had a back injury that preexisted his work at Eau Galle Cheese.

¶ 22. Eau Galle Cheese spends much time discussing conflicting evidence, or evidence that the Commission was entitled to reject. For example, Eau Galle complains that Kallstrom gave inconsistent testimony regarding the cause of his injury. However, the Commission was entitled to believe some of Kallstrom's statements, even if such statements conflicted with others he made. See Wagner v. Industrial Comm'n, 273 Wis. 553, 565, 79 N.W.2d 264 (1956) (where the same witness gives conflicting testimony, "the commission may base its decision on which of the two conflicting pieces of testimony it chooses to believe, and, on review, a court would have no power to weigh the evidence and disturb such a finding").

¶ 23. Also, Eau Galle Cheese spends considerable time explaining why the evidence does not meet the legal standard for a compensable injury that Eau Galle Cheese gleans from Lewellyn and Shelby Mutual. But we have already rejected Eau Galle Cheese's view of the applicability of those two decisions.

¶ 24. This case involves the Commission weighing conflicting expert medical evidence. We do not reweigh the credibility of such evidence. See Valadzic, 92 Wis. 2d at 598. The Commission found Dr. Thomas's assertions to be more credible, and thus found that the degenerative disk condition was caused by work-related activities. Because there is credible evidence to support the Commission's finding, it will not be disturbed.

III. Wisconsin Stat. § 646.31(11)

¶ 25. Kallstrom's health care insurer, Benefit Plan Administrators, paid $27,155.36 for the medical treatment for Kallstrom's injured back. Once the Commission determined that Kallstrom's back injury was compensable under the worker's compensation statutes, Kallstrom's health care insurer was potentially entitled to reimbursement as a subrogated insurer. The Commission's decision ordered that Kallstrom's health care insurer be reimbursed $27,155.36 by "the employer and its insurance carrier."

¶ 26. The "employer" in the Commission's order is Eau Galle Cheese. The "insurance carrier" is Eau Galle Cheese's worker's compensation insurer, Reliance Insurance. Shortly after Kallstrom's worker's compensation claim was being processed, Reliance Insurance entered liquidation. Consequently, Reliance Insurance did not provide coverage.

¶ 27. The Wisconsin Insurance Security Fund is a party to this action because Eau Galle Cheese's insurer was in liquidation. The Fund pays appropriate claims arising from the inability of insolvent insurers to comply with their obligations as insurers. See Wis. Stat. § 646.31(1). However, the parties agree that under the circumstances in this case the Fund is statutorily exempt from reimbursing Kallstrom's health care insurer. This means that the Commission's order effectively directs Eau Galle Cheese alone to reimburse Kallstrom's health care insurer $27,155.36 for expenditures for Kallstrom's injury. Eau Galle Cheese argues that this order is illegal.

¶ 28. The Commission argues that its order directing Eau Galle Cheese to reimburse Kallstrom's health care insurer is authorized by various provisions in Wis. Stat. ch. 102, the worker's compensation statutes. Eau Galle Cheese does not dispute that ch. 102 provides general authority for such an order. Instead, Eau Galle Cheese argues that a more specific statute, Wis. Stat. § 646.31(11), prohibits the order under the circumstances of this case. We agree.

¶ 29. The parties correctly note that our review is de novo. We do not accord deference to the Commission's decision because this question involves construing Wis. Stat. § 646.31(11), a statute the Commission is not charged with administering, see Epic Staff Management, Inc. v. LIRC, 2003 WI App 143, ¶ 17, 266 Wis. 2d 369, 667 N.W.2d 765, and because the question is one of first impression for the Commission, see DOC v. Schwarz, 2005 WI 34, ¶ 15, 279 Wis. 2d 223, 693 N.W.2d 703.

¶ 30. We begin by assuming that the Commission is correct when it asserts that Wis. Stat. §§ 102.30(4), 102.30(7)(a), and 102.42(1) of the worker's compensation statutes confer general authority on the Commission to order both employers and their worker's compensation insurance carriers to reimburse health care insurers for expenditures relating to compensable injuries like the one in this case. More specifically, we assume that if we considered only the worker's compensation statutes, then Kallstrom's health care insurer would be entitled to reimbursement under § 102.30(7)(a) because that insurer is a "nonindustrial" insurer that made "improper" payments covering Kallstrom's medical expenses.

¶ 31. Though the Commission generally has the authority to order employers to reimburse employees' health care insurers, this case involves a specific circumstance covered by Wis. Stat. ch. 646. "When two statutes relate to the same subject matter, the specific statute controls over the general statute." Wieting Funeral Home of Chilton, Inc. v. Meridian Mut. Ins. Co., 2004 WI App 218, ¶ 15, 277 Wis. 2d 274, 690 N.W.2d 442, review denied, 2005 WI 60, 281 Wis. 2d 114, 697 N.W.2d 472 (No. 2004AP461). In this case, Wis. Stat. § 646.31(11) is more specific and, therefore, is controlling.

¶ 32. The purpose of the Wisconsin Insurance Security Fund, created by Wis. Stat. ch. 646, is to protect insureds in the event their insurance company becomes insolvent. This legislative purpose is expressed in Wis. Stat. § 646.01(2)(a), which states:

To maintain public confidence in the promises of insurers by providing a mechanism for protecting insureds from excessive delay and loss in the event of liquidation of insurers and by assessing the cost of such protection among insurers ....

See Fireman's Fund Ins. Co. of Wis. v. Piteo Frialator Co., 145 Wis. 2d 526, 531, 427 N.W.2d 417 (Ct. App. 1988) ("[T]he primary purpose of the Wisconsin Insurance Security Fund, as stated in sec. 646.01(2)(a), reflects an . . . intention designed to protect insureds of insolvent companies . . . .").

¶ 33. The plain language of Wis. Stat. § 646.31(11) prohibits the part of the Commission's order that is at issue here. Kallstrom's health care insurer is, in the words of § 646.31(11), an "insurer . .. that has paid a claim and thereby has become subrogated or otherwise entitled to the amount of that claim." Consequently, under that statute, Kallstrom's health care insurer has no claim against Eau Galle Cheese because Eau Galle is "the insured of the insurer in liquidation." Wis. Stat. § 646.31(11). The Commission suggests no ambiguity in this language as it applies to this case, and we find none.

¶ 34. Although Wis. Stat. § 102.30(7)(a), read in isolation, authorizes the reimbursement of a subro-gated insurer, the Commission points to nothing in the worker's compensation statutes that contemplates the specific situation in which a subrogated insurer seeks reimbursement from the insured of an insurer in liquidation. Wisconsin Stat. § 646.31(11), on the other hand, was drafted with this specific situation in mind.

¶ 35. The Commission argues that its interpretation furthers the purpose behind the Worker's Compensation Act, that is, to keep worker's compensation recoveries in the arena of the responsible employers and worker's compensation insurance carriers, rather than attaching liability to non-worker's compensation insurance carriers. For support, the Commission quotes from Lisney v. LIRC, 171 Wis. 2d 499, 493 N.W.2d 14 (1992):

[T]he basic purpose of the Worker's Compensation Act [is] to provide financial and medical benefits to employees who are injured on the job "and to allocate the financial burden to the most appropriate source, the employer, and, ultimately the consumer of the product."

Id. at 522 (quoting Brenne v. DILHR, 38 Wis. 2d 84, 92, 156 N.W.2d 497 (1968)). However, there is no suggestion in Lisney or Brenne that the supreme court's attention was drawn to the additional considerations that arise when there is a choice between putting an expense burden on a solvent nonindustrial insurer or on an insured employer whose insurance carrier is in liquidation. Wisconsin Stat. § 646.31(11) comes into play here because Eau Galle Cheese's worker's compensation insurance carrier was in liquidation. The situation would be different if, for example, Eau Galle Cheese had failed to purchase worker's compensation insurance. In that event, § 646.31(11) would afford Eau Galle Cheese no protection.

¶ 36. The Commission argues that Wis. Stat. § 646.31(11) is inapplicable because this case does not involve a "claim" by Kallstrom's health care insurer. According to the Commission, § 646.31(11) addresses the rights and limitations of subrogated insurers, such as Kallstrom's health care insurer, who wish to make claims for reimbursement on their own behalf. We agree with Eau Galle Cheese that this argument ignores the reality of the Commission's order. The order does not direct Eau Galle Cheese to reimburse Kall-strom; it orders Eau Galle Cheese, whose insurer is in liquidation, to reimburse a subrogated health care insurer. Plainly, § 646.31(11) prohibits just such reimbursement by an insured.

¶ 37. Finally, the Commission argues that Wis. Stat. § 646.31(11) is inapplicable because the Commission's order addresses Kallstrom's rights, not the rights of Kallstrom's health care insurer. The Commission states that Kallstrom's right to have his medical bills reimbursed stems from the employer's liability under Wis. Stat. § 102.42(1) and the reimbursement procedure in Wis. Stat. § 102.30(7)(a). We are not persuaded. Nothing before us suggests that Kallstrom's right to compensation is at stake. Rather, it is the right of Kallstrom's health care insurer to reimbursement that the Commission seeks to enforce.

¶ 38. In sum, we conclude that when, as here, an insurer becomes subrogated by paying medical expenses arising from injuries that are compensable under the worker's compensation statutes, and the employer's worker's compensation insurance carrier is in liquidation, Wis. Stat. § 646.31(11) precludes the Commission from ordering the employer to reimburse the subrogated insurer for those expenses. Consequently, we remand with directions that the circuit court amend its order so that it directs the Commission to delete its directive that Eau Galle Cheese reimburse Kallstrom's health care insurer. In all other respects, we affirm the circuit court's order. Nothing in this opinion or in the Commission's order prevents Kallstrom's health care insurer from seeking reimbursement from the liquidator of Reliance Insurance.

By the Court. — Order affirmed in part; reversed in part and cause remanded with directions.

       Eau Galle Cheese and the Fund submitted joint briefs. The Commission and Kallstrom submitted separate briefs, but for the most part make the same arguments. Kallstrom's brief adopts the Commission's arguments by reference. Throughout this decision, when we refer to arguments made by Eau Galle Cheese and the Fund, we will refer to those parties collectively as Eau Galle Cheese. Similarly, when referring to arguments made by the Commission and Kallstrom, we will refer to those parties collectively as the Commission.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Stat. § 102.03(1) (e) provides an employer's primary liability for work-related injuries, including occupational diseases. Specifically, that statute states:
      (1) Liability under this chapter shall exist against an employer only where the following conditions concur:
      (e) Where the accident or disease causing injury arises out of the employee's employment.

       The parties dispute what weight, if any, we should accord the Commission's interpretation of the law regarding occupational back disease. The three levels of deference are great weight, due weight, and de novo. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 659-60, 539 N.W.2d 98 (1995). We conclude that, regardless of the applicable level of deference, we would affirm the Commission and, therefore, do not address the issue.

       The third Lewellyn rule reads:

        If the work activity precipitates, aggravates and accelerates beyond normal progression, a progressively deteriorating or degenerative condition, it is an accident causing injury or disease and the employee should recover even if there is no definite "breakage."

        Lewellyn v. DILHR, 38 Wis. 2d 43, 59, 155 N.W.2d 678 (1968).

       The Commission's brief states that because Eau Galle Cheese's insurance carrier, Reliance Insurance, is in liquidation, the Fund assumes responsibility for Reliance Insurance's obligations under the applicable worker's compensation insurance policy. See Wis. Stat. § 646.31(2)(d). An exception, the Commission admits, is that the Fund's obligation does not extend to reimbursement of a subrogated insurer, such as Kallstrom's health care insurer, pursuant to § 646.31(11). Thus, the Commission admits that it could not order the Fund to reimburse Kallstrom's health care insurer. In any event, the circuit court expressly ruled that the Fund is not liable for medical reimbursement, and neither the Commission nor Kallstrom appeals that part of the circuit court's order.

       Kallstrom's brief asserts that reliance on Wis. Stat. § 646.31(11) has been waived because an argument based on that statute was not timely raised before the circuit court. We do not address Kallstrom's waiver argument because, even if waiver applied, we would exercise our power to address the issue. See Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 52, 245 Wis. 2d 772, 629 N.W.2d 727 (when an issue is one of law, has been fully briefed by the parties, and "is of sufficient public interest to merit a decision," this court may exercise its discretion to address it).

       Wisconsin Stat. § 102.30(4) provides:
      Regardless of any insurance or other contract, an employee or dependent entitled to compensation under this chapter may recover compensation directly from the employer and may enforce in the person's own name, in the manner provided in this chapter, the liability of any insurance company which insured the liability for that compensation.
      Wisconsin Stat. § 102.30(7)(a) provides:
      The department may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under s. 102.42 when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper.
      Wisconsin Stat. § 102.42(1) provides:
      Treatment of employee. The employer shall supply such medical, surgical, chiropractic,... and hospital treatment, medicines, medical and surgical supplies,... as may be reasonably required to cure and reheve from the effects of the injury .... The employer shall also be hable for reasonable expense incurred by the employee for necessary treatment to cure and reheve the employee from the effects of occupational disease prior to the time that the employee knew or should have known the nature of his or her disability and its relation to employment....

       In Fireman's Fund Insurance Co. of Wisconsin v. Piteo Frialator Co., 145 Wis. 2d 526, 427 N.W.2d 417 (Ct. App. 1988), this court concluded that the Wisconsin Insurance Security Fund law acted to cut off a subrogated insurer's claim for reimbursement from an insured of an insurer in liquidation. Id. at 532. We concluded that, although there was no specific subsection that provided this type of protection to insured parties of insurers in liquidation, the law's purpose, as expressed in Wis. Stat. § 646.01(2)(a), necessitated that result. Fireman's Fund, 145 Wis. 2d at 530-32. In other words, it appears that Fireman's Fund involved a situation that would have been covered by Wis. Stat. § 646.31(11), but this court relied instead on § 646.01(2)(a) to find that the claim was barred. The reason for this, it seems, is that § 646.31(11) was not yet applicable. The effective date of the amendment that created sub. (11) was April 28, 1988, and, unless liquidation proceedings were pending on that date, the subsection did not apply. 1987 Wis. Act 325, §§ 20, 23(2), 24. Because briefs in Fireman's Fund were submitted to this court on March 15, 1988, we assume that sub. (11) was not yet applicable.

       The full subsection provides:
      Subrogation claims. The fund is not required to pay any amount due from the insurer to any reinsurer, insurer, insurance pool or underwriting association as subrogation, contribution, or indemnification recoveries or otherwise, except as provided in sub. (2)(a). A reinsurer, insurer, insurance pool or underwriting association that has paid a claim and thereby has become subrogated or otherwise entitled to the amount of that claim may assert that claim against the liquidator of the insurer in liquidation but not against the insured of the insurer in liquidation.
      Wis. Stat. § 646.31(11).

       We note that a subrogated nonindustrial health care insurer may seek reimbursement under Wis. Stat. § 102.30(7)(a). In Employers Health Insurance Co. v. Tesmer, 161 Wis. 2d 733, 738-39, 469 N.W.2d 203 (Ct. App. 1991), we concluded that a subrogated insurer could petition the Commission for reimbursement of improperly paid medical expenses under § 102.30(7)(a). That right is dependent only on an employee's claim under Wis. Stat. § 102.42(1) and § 102.30(4) insofar as the claim against an employer must be successful for the nonindustrial insurer to be deemed "subrogated." See Employers Health, 161 Wis. 2d at 738-39. It seems, therefore, that it is the subrogated insurer's rights to reimbursement, and not the employee's rights, that are enforced under § 102.30(7)(a).


author: DEININGER, J.

text:
    Miguel Gallego and On Behalf of Himself and all Others Similarly Situated, Plaintiffs-Appellants, v. Wal-Mart Stores, Inc. and Wal-Mart Stores East, Inc., Defendants-Respondents.

    Court of Appeals

      No. 2004AP2533.

      Submitted on briefs March 7, 2005.

      —Decided October 20, 2005.

    2005 WI App 244
    (Also reported in 707 N.W.2d 539.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Noah M. Golden-Krasner and
      David C. Bender of Porter Jablonski & Assoc., S.C., Madison.
    On behalf of the defendants-respondents, the cause was submitted on the briefs of Naikang Tsao and Michael D. Leffel of Foley & Lardner LLP, Madison.
    A nonparty brief was filed on behalf of the appellant by Stephen E. Meili of Consumer Law Litigation Clinic, University of Wisconsin Law School, Madison.
    Before Lundsten, EJ., Vergeront and Deininger, JJ.

       Petition to review voluntarily dismissed.

   DEININGER, J.

¶ 1. Miguel Gallego appeals a judgment that dismissed his class-action complaint against Wal-Mart Stores, Inc. Gallego alleged in his complaint that Wal-Mart misrepresented the origin of salmon sold in its stores in violation of Wis. Stat. §§ 100.18 and 100.20 (2003-04). The circuit court dismissed the complaint after concluding that Wal-Mart's alleged failure to disclose that the salmon it sold was artificially colored did not constitute a misrepresentation under § 100.18, and, further, that the violation of a food-labeling regulation was not privately actionable under § 100.20(5).

¶ 2. We affirm the dismissal of Gallego's claim under Wis. Stat. § 100.18 because a more specific statute, Wis. Stat. § 100.183, governs misrepresentations in the sale of "articles of food" and § 100.183 does not provide a private right of action. We conclude the circuit court erred, however, in dismissing Gallego's claim under Wis. Stat. § 100.20 because a violation of the food-labeling regulation in question may be pursued in a private action under § 100.20(5). Accordingly, we affirm the appealed judgment in part, reverse it in part and remand for further proceedings on Gallego's § 100.20 claim.

BACKGROUND

¶ 3. We have before us a judgment dismissing Gallego's complaint for failure to state a claim on which relief may be granted. See Wis. Stat. § 802.06(2)(a)6. When reviewing a dismissal for failure to state a claim, we, like the circuit court, must accept as true the allegations of the plaintiffs complaint. See Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶ 11, 270 Wis. 2d 146, 677 N.W.2d 233.

¶ 4. Gallego alleged the following facts in his complaint. Gallego purchased artificially colored salmon from a store in Madison owned or operated by Wal-Mart Stores, Inc. He did so believing the salmon to be "naturally raised or wild" salmon because of its "pink or reddish coloring," instead of "farm-raised" salmon that has "gray, unappealing flesh." By concealing the fact that it was selling artificially-colored, farm-raised salmon, Wal-Mart misled Gallego and other consumers into buying more fish and paying a higher price than they would have if the true origin of the salmon had not been misrepresented. This is because consumers associate red or pink coloring with wild salmon, which are generally considered to be tastier and more nutritious than farm-raised salmon.

¶ 5. Gallego brought his action on behalf of himself and a class consisting of consumers who, during a specified period, purchased artificially colored salmon from Wal-Mart's stores that was "not labeled or advertised as containing artificial coloring." Gallego claimed that "by putting artificially colored fish before consumers without conspicuously labeling it as artificially colored," Wal-Mart made "an affirmative statement that such fish is naturally colored." He sought to recover pecuniary damages under Wis. Stat. § 100.18 resulting from Wal-Mart's allegedly "untrue" and "deceptive" advertising. Id. In addition, he sought damages on behalf of himself and the class under Wis. Stat. § 100.20 for Wal-Mart's "unfair trade practice" of failing to disclose the artificial coloring in the salmon it sold, allegedly in violation of federal and state food labeling regulations. As additional remedies for these violations, Gallego requested a declaratory judgment and injunctive relief "prohibiting [Wal-Mart] from further engaging in unfair trade practices and using deceptive, untruthful, or misleading representations."

¶ 6. Wal-Mart moved to dismiss Gallego's complaint for failure to state a claim on which relief may be granted. The circuit court granted the motion, concluding that Gallego could not proceed under either Wis. Stat. §§ 100.18 or 100.20. The court entered a judgment dismissing Gallego's complaint and he appeals.

ANALYSIS

¶ 7. We review de novo the circuit court's dismissal of Gallego's complaint for failure to state a claim. See Tietsworth, 270 Wis. 2d 146, ¶ 11. We first address whether Gallego may sue Wal-Mart for misrepresentation or deceptive advertising under Wis. Stat. § 100.18 for not labeling the salmon it sold as being artificially colored. The circuit court concluded, and Wal-Mart argues, that the conduct complained of constitutes a failure to disclose, not an affirmative misrepresentation, and hence, the conduct was not actionable under § 100.18 pursuant to the supreme court's holding in Tietsworth. See Tietsworth, 270 Wis. 2d 146, ¶ 40. Because we conclude that misrepresentations regarding the sale of food are governed by Wis. Stat. § 100.183, which does not provide a private cause of action, we do not address whether Tietsworth bars Gallego's § 100.18 claim.

¶ 8. The question before us is one of statutory interpretation, and, thus, a question of law we decide de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). We must begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation, but as part of a whole, in relation to the language of surrounding or closely related statutes, and reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48.

¶ 9. Wisconsin Stat. § 100.18 provides in relevant part:

No ... corporation..., with intent to sell, distribute, increase the consumption of or in any wise dispose of any real estate, merchandise, securities, employment, service, or anything offered by such ... corporation ..., directly or indirectly, to the public for sale,... shall make, publish, disseminate, circulate, or place before the public, ... in this state,... an advertisement, announcement, statement or representation of any kind to the public relating to such ... sale ... of such real estate, merchandise, securities, service or employment... , which advertisement, announcement, statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.

Section 100.18(1) (emphasis added). The statute further provides that "[a]ny person suffering pecuniary loss because of a violation of this section ... may sue in any court of competent jurisdiction and shall recover such pecuniary loss, together with costs, including reasonable attorney fees." Wis. Stat. § 100.18(1 l)(b)2.

¶ 10. A similarly worded statute follows closely after Wis. Stat. § 100.18. Wisconsin Stat. § 100.183, entitled "Fraud, advertising foods," provides as follows:

No . . . corporation.. . shall, with intent to sell, or increase the consumption thereof,.. . make, publish, disseminate, circulate, or place before the public in this state, or cause, directly or indirectly to be made, published, disseminated, or placed before the public in this state, in a newspaper or other publication, or in the form of a book notice, handbill, poster, bill, circular or pamphlet, or in any other manner, an advertisement of any sort regarding articles of food, which advertisement contains any assertion, representation or statement which is untrue, deceptive or misleading.

Wis. Stat. § 100.183(1) (emphasis added). Unlike § 100.18, however, § 100.183 does not provide for private suits to recover pecuniary losses from violators of its provisions.

¶ 11. The specific question we must answer is whether misrepresentations regarding the sale of articles of food are governed exclusively by Wis. Stat. § 100.183, or whether Wis. Stat. § 100.18 also applies to sales of food. Gallego argues that food is included within the scope of § 100.18 because it is "merchandise," and, thus, a private cause of action alleging misrepresentation in the sale of artificially-colored salmon may be brought under § 100.18. He cites Tim Torres Enterprises v. Linscott, 142 Wis. 2d 56, 62-65, 70-72, 416 N.W.2d 670 (Ct. App. 1987), for the proposition that a private action may be brought under § 100.18 because the suit in that case dealt with the sale of frozen custard.

¶ 12. We conclude that Gallego's reliance on Tim Torres Enterprises is misplaced. The appeal in that case was from a jury verdict that included damages awarded for false advertising under Wis. Stat. § 100.18. Tim Torres Enterprises, 142 Wis. 2d at 59. The questions before us were the sufficiency of the evidence to support the jury's verdict, an evidentiary issue and an asserted inconsistency in the verdict. Id. at 59-60. Because the issue was not raised, we neither discussed nor decided in Tim Torres Enterprises whether Wis. Stat. § 100.183 supplants § 100.18 when an alleged misrepresentation involves the sale of food as opposed to the sale of non-food items.

¶ 13. The term "merchandise," as used in § 100.18 is not statutorily defined, and we may therefore consult a dictionary to determine its common and accepted meaning. See Kalal, 271 Wis. 2d 633, ¶¶ 53-54. The Random House Dictionary of the English Language 1202 (2nd ed. 1987), provides the following as its first definition of "merchandise": "1. the manufactured goods bought and sold in any business" (emphasis added). The definition in the most recent edition of Black's Law Dictionary, however, does not restrict "merchandise" to manufactured items: "1. In general, a movable object involved in trade or traffic; that which is passed from hand to hand by purchase and sale." Black's Law Dictionary 1008 (8th ed. 2004). We conclude that, although "merchandise" may at times include articles of food, the term does not necessarily do so in all contexts. When the "statutory background" of §§ 100.18 and 100.183 is considered, it becomes clear that the legislature does not intend "merchandise" in § 100.18 to include "articles of food."

¶ 14. The legislature originally enacted what is now Wis. Stat. § 100.18 in 1913. See 1913 Wis. Laws, ch. 510. What is now Wis. Stat. § 100.183 followed in 1927. See 1927 Wis. Laws, ch. 80; Wis. Stat. § 352.085(1) (1927). If the former statute covered the sale of food, the legislature would have had no reason to enact a separate statute to prohibit misrepresentations in the sale of food. Moreover, in 1969, the legislature renumbered the food-only provision as § 100.183, and, in separate legislation, created a private cause of action under § 100.18. See 1969 Wis. Laws, chs. 286 and 425. The fact that the legislature, in a single session, acted on both statutes and added a private cause of action to only one of them, is another strong indication that it intended two different anti-fraud provisions — one governing "real estate, merchandise, securities, service or employment" that creates a private cause of action, and the other governing "articles of food" that does not. See §§ 100.18 and 100.183.

¶ 15. Our reading of Wis. Stat. §§ 100.18(1) and 100.183 is further corroborated when statutory amendments enacted in 1980 are considered. Presently, the only sanction for violating § 100.183 is the criminal penalty specified in § 100.26(1). Section 100.18(1), however, is amenable to only civil remedies and cannot be enforced via a criminal prosecution. See §§ 100.18(11) and 100.26(1), (4). Thus, one might argue from the present allocation of remedies that the legislature intends both §§ 100.18(1) and 100.183 to apply to misrepresentations in the sale of food, having created the latter section for the purpose of making an additional, criminal enforcement mechanism available for food fraud. Prior to 1980, however, the criminal penalties set forth in § 100.26(1) did apply to violations of §100.18(1). See Wis. Stat. § 100.26(1) (1977). The criminal penalty for violating § 100.18(1) was not removed until 1980, when it was replaced with a civil forfeiture. 1979 Wis. Laws, ch. 327 §§ 2, 3. In other words, for the first fifty years or more of the existence of §§ 100.18(1) and 100.183, criminal penalties were available for violations of both statutes, meaning that, if the legislature intended § 100.18(1) to apply to the sale of food, it did not need to create § 100.183 in order to authorize a criminal penalty for food fraud.

¶ 16. Finally, in addition to analyzing the language of a statute and its statutory background, we are "where possible to give reasonable effect to every word, in order to avoid surplusage." Kalal, 271 Wis. 2d 633, ¶ 46. If we were to accept Gallego's contention that Wis. Stat. § 100.18 applies to the sale of articles of food, Wis. Stat. § 100.183 would be rendered superfluous. Given this fact, and in light of the statutory background of the two sections described above, we are satisfied that the legislature intends two separate and different anti-fraud provisions, one governing non-food "merchandise" and the other, "articles of food."

¶ 17. Gallego also argues, however, that we must interpret the two statutes in such a way as to avoid conflict and "prevent repeal by implication." He notes that the supreme court explained in State v. Dairyland Power Coop., 52 Wis. 2d 45, 187 N.W.2d 878 (1971), that "the rule that the more specific governs the more general is a rule of construction which is not applied automatically but is only resorted to when the legislative intent is not otherwise clear from a reading of the two provisions in question." Id. at 53 (emphasis added). The court further explained in Dairyland Power Coop. that the cited rule of construction "requires more than the mere existence of one general and one specific statute. It is also necessary that there be an irreconcilable conflict between the two provisions." Id. Gallego asserts there is no irreconcilable conflict between Wis. Stat. §§ 100.18 and 100.183, which means that both can and should apply to misrepresentations involving the sale of food.

¶ 18. We disagree with Gallego's contention that our present analysis is governed by the supreme court's discussion of general and specific statutes in Dairyland Cooperative. Rather, we agree with Wal-Mart that both sections are "specific" statutes. As we have explained, Wis. Stat. § 100.18 deals with misrepresentations in the sale of "real estate," non-food "merchandise, securities, employment or service," while Wis. Stat. § 100.183 applies to misrepresentations "regarding articles of food." The statutes are thus separate, different and non-overlapping, and any rules for reconciling general and specific statutes are not implicated.

¶ 19. Although we are satisfied from the language of the two statutes and their statutory background that misrepresentations in the sale of food are addressed solely under Wis. Stat. § 100.183, we briefly consider the parties' arguments regarding what purpose the legislature sought to achieve by creating and retaining a separate anti-fraud provision "regarding articles of food." Gallego, of course, claims there is no discernible purpose in excluding food advertising from the reach of Wis. Stat. § 100.18, and that the legislative purpose of deterring fraudulent advertising is best served by applying both statutes to food sales. In that way, according to Gallego, the broadest possible range of remedies, including private actions and suits for injunctive relief, may be brought to bear against those who purvey articles of food in a deceptive manner. Gallego's analysis is not unreasonable, but it does not account for the statutory background of § 100.83 that we describe below.

¶ 20. Wal-Mart, on the other hand, posits that the narrower enforcement mechanism available under Wis. Stat. § 100.183 is consistent with both federal food and drug law enforcement mechanisms and with the enforcement provisions provided in Wis. Stat. ch. 97 (entitled "Food Regulation"). Wal-Mart's proffered explanation finds support in the statutory background of § 100.83. Immediately prior to its renumbering in 1969, § 100.183 was located within ch. 97. See 1969 Wis. Laws, ch. 286, § 41 (renumbering former § 97.64 as § 100.183). Chapter 97 makes several enforcement mechanisms available against those who violate food handling and labeling regulations, including civil and criminal penalties and injunctions. See, e.g., §§ 97.12, 97.72, 97.73. Significantly, however, the chapter creates no private right of action. Thus, a plausible explanation of why the legislature would purposefully create a separate provision dealing with fraud in the sale of food that differs from an earlier statute dealing with fraudulent advertising of non-food items is that the food-fraud provision, § 100.83, is part of a larger, comprehensive scheme for regulating the handling, sale and labeling of food items.

¶ 21. Thus, nothing in the parties' competing legislative-purpose arguments dissuades us from our conclusion that only Wis. Stat. § 100.183, and not Wis. Stat. § 100.18, applies to misrepresentations in the sale of food items such as salmon. We conclude, therefore, that the circuit court did not err in dismissing Gallego's claim under Wis. Stat. § 100.18, although our conclusion rests on a different rationale. We turn next to Gallego's claim that Wal-Mart's failure to label its salmon as artificially-colored is actionable as an unfair trade practice under Wis. Stat. § 100.20. We agree with Gallego that his complaint states a claim under that section.

¶ 22. Wisconsin Stat. § 100.20(2)(a) gives the Department of Agriculture, Trade and Consumer Protection (DATCP) authority to "issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair." The statute provides that the DATCP's trade regulations may be enforced by way of administrative proceedings initiated by the Department of Justice and through circuit court actions commenced by the DATCP for injunctions. See Wis. Stat. § 100.20(4) and (6). Section 100.20 also authorizes a private right of action:

Any person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.

Section 100.20(5).

¶ 23. Gallego's complaint alleges that he and other class members suffered pecuniary losses on account of Wal-Mart's violation of Wis. Admin. Code § ATCP 90.10(1), which requires "food sold or distributed for sale" in Wisconsin to be "labeled in compliance with applicable rules adopted by the United States food and drug administration." Wal-Mart does not argue that the federal rules incorporated by reference in § ATCP 90.10(1) do not require the disclosure of artificial coloring in salmon. Rather, Wal-Mart notes that Wis. Stat. § 100.20(5) grants a private right of action for only the violation of an order issued under this section" (emphasis added). It contends that, because an explanatory note accompanying § ATCP 90.10 states that the DATCP adopted the rule "under s. 97.09(4), Stats.," and this note does not mention § 100.20(2), the circuit court correctly concluded that §ATCP 90.10 was not an unfair trade practice regulation enforceable by private action under Wis. Stat. § 100.20(5). We disagree.

¶ 24. The following explanatory note appears at the beginning of Wis. Admin. Code ch. ATCP 90:

This chapter is adopted under authority of ss. 93.07 (1), 97.09 (1) and (4), 97.42 (4) (j), 98.07 (3) and (4), and 100.20 (2), Stats. Violations of this chapter are subject to the penalties and remedies provided under ss. 97.72, 97.73, 98.26, 100.20 (5) and (6), and 100.26 (3) and (6), Stats.

The clear import of this note is that the DATCP views its authority for all of the regulations included within ch. ATCP 90 as flowing from numerous, overlapping statutory directives, one of which is the legislature's directive under Wis. Stat. § 100.20(2)(a) that the department may enact rules forbidding unfair trade practices. Moreover, the department plainly expresses its position in the introductory note that violations of any of the provisions in ch. ATCP 90 may be pursued by private parties under § 100.20(5).

¶ 25. Of what import, then, is the specific explanatory note that follows Wis. Admin. Code § ATCP 90.10? That note reads, in its entirety: "This section is adopted under s. 97.09 (4), Stats. See also s. 97.09 (1), Stats., related to food definitions and standards of identity, composition, quality and fill of container." We reject Wal-Mart's contention that the effect of the note following § ATCP 90.10 is to remove the provisions of that section from the operation of the introductory note, which states that the regulations in Wis. Admin. Code ch. 90 derive in part from the department's trade-practice rulemaking authority under Wis. Stat. § 100.20(2), thus permitting their private enforcement under § 100.20(5). If an exception from the general note is what the DATCP meant to convey, it could easily have excepted § ATCP 90.10 from the reach of § 100.20(5), either in the introductory note or the note following § ATCP 90.10. The department did not do so.

¶ 26. Because the DATCP did not expressly except Wis. Admin. Code § 90.10 from the reach of its introductory citation to Wis. Stat. § 100.20 in either explanatory note, the only reasonable interpretation of the note following Wis. Admin. Code § ATCP 90.10 is that it simply provides additional information regarding the statutory authority for that section, not a source of authority different from those specified in the chapter introductory note. In this regard, we note that Wis. Stat. § 97.09(1) and (4), as well as several other provisions in Wis. Stat. chs. 97 and 98, together with Wis. Stat. § 100.20, are all cited in the chapter introductory note as authority for the rules set forth in the chapter. This strongly suggests that the DATCP sees no conflict or incompatibility arising from the fact that the rules in ch. ATCP 90 identify activities that violate specific food or weights-and-measures regulatory statutes, and, at the same time, constitute unfair trade practices.

¶ 27. Why then would the department provide an additional reference to Wis. Stat. § 97.09 following Wis. Admin. Code §ATCP 90.10, when it did not provide additional, more specific notes following any other section in ch. ATCP 90? Wal-Mart again asserts that the unique treatment of § ATCP 90.10 by the inclusion of a special note relating the rule to § 97.09(1) and (4) supports its interpretation that the rule was enacted under only that statute and not also under the authority of Wis. Stat. § 100.20. We agree with Gallego, however, that a more plausible explanation for the note following § ATCP 90.10 is that, unlike all of the other provisions in ch. ATCP 90, which set out department-formulated packaging and labeling requirements, § ATCP 90.10 adopts by reference rules formulated by two federal agencies, the Food and Drug Administration and the U.S. Department of Agriculture. The department may well have believed that its statutory authority to incorporate federal food labeling regulations wholesale, instead of developing independent rules, needed to be particularly highlighted.

¶ 28. Finally, we address what some might see as a contradiction in our analysis. We conclude that Wis. Stat. § 100.183, and not Wis. Stat. § 100.18 with its private right of action, governs misrepresentations in the sale of food. Part of our rationale for this conclusion is that § 100.183 was once a part of Wis. Stat. ch. 97, and, thus, it is part of a comprehensive statutory scheme for the regulation of food, a scheme that provides several enforcement mechanisms but not a private right of action. We also conclude, however, that a private right of action is available to Gallego under Wis. Stat. § 100.20(5), and this conclusion is based on the fact that the DATCP has declared by rule that violations of certain food-labeling regulations are unfair trade practices.

¶ 29. We do not believe our conclusions are inconsistent with one another. In interpreting Wis. Stat. §§ 100.18 and 100.183, we properly considered the language of the two statutes and their statutory background. Even though the legislature has chosen to deal with misrepresentations in the sale of food separately and differently than it has with misrepresentations in the sale of non-food merchandise, this does not mean that, under entirely separate statutory authority, the DATCP cannot declare the violation of certain food-labeling regulations to be an unfair trade practice. Put another way, even though we conclude there is no direct legislative authorization of a private right of action for misrepresentations "regarding articles of food," nothing in either Wis. Stat. § 100.20 or Wis. Stat. ch. 97 evinces a legislative intent to preclude the department from declaring by rule that a violation of Wis. Admin. Code § ATCP 90.10 is an unfair trade practice amenable to private enforcement action under § 100.20(5).

¶ 30. Accordingly, we conclude that the circuit court erred in dismissing Gallego's claim under Wis. Stat. § 100.20(5) alleging a violation of Wis. Admin. Code §ATCP 90.10. We remand to the circuit court for further proceedings on Gallego's § 100.20 claim.

CONCLUSION

¶ 31. For the reasons discussed above, we affirm the circuit court's order insofar as it dismissed Gallego's claim under Wis. Stat. § 100.18. We reverse the dismissal of Gallego's claim under Wis. Stat. § 100.20(5) and remand for further proceedings on that claim consistent with this opinion.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted. The relevant portions of the cited statutes are quoted in the Analysis section of this opinion.

       Gallego also pled an unjust enrichment claim but this claim was dismissed on stipulation of the parties and is not' before us on appeal.

       The Consumer Law Litigation Clinic, University of Wisconsin Law School, filed an amicus curiae brief in which it argued that Wal-Mart was guilty of an "affirmative, visual representation made by color" that is actionable under Wis. Stat. § 100.18. Because we conclude for a different reason that § 100.18 does not apply to the transaction at issue, we do not address the Clinic's arguments.

       One of the parties in Winkelman v. Kraft Foods, Inc., 2005 WI App 25, 279 Wis. 2d 335, 693 N.W.2d 756, review denied, 2005 WI 134, 282 Wis. 2d 720, 700 N.W.2d 272 (WI Jun. 1, 2005) (No. 03-2355), argued that a food item (milk) was not "merchandise" within the meaning of Wis. Stat. § 100.18. Id., ¶ 10. We nonetheless let stand an arbitrator's award based on the application of § 100.18 to a contract for the sale of milk. Id., ¶¶ 13-19. We note, however, that we did not address the largely undeveloped argument regarding the definition of "merchandise," id., ¶ 15, and we concluded only that the arbitrator's decision, even if erroneous, did not constitute a "perverse misconstruction or manifest disregard" of the law. Id., ¶¶ 13-19. In short, as in Tim Torres Enterprises v. Linscott, 142 Wis. 2d 56, 416 N.W.2d 670 (Ct. App. 1987), we did not consider in Winkelman the question that is before us now — whether Wis. Stat. § 100.183 wholly supplants § 100.18 when the item sold is an "article[] of food."

       "Statutory background" refers to "previously enacted and repealed statutory provisions," as opposed to the "legislative history" of a provision, " 'which was never enacted'" by the legislature. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 52 n.9, 271 Wis. 2d 633, 681 N.W.2d 110. Although a statute's "legislative history" should not be consulted to ascertain the meaning of an unambiguous statute, " 'it is proper to look at a statute's background in the form of actually enacted and repealed provisions.'" Id. (quoting Cass R. Sun-stein, Interpreting Statutes in the Regulatory State, 103 HaRV. L. Rev. 405, 430 (1989)).

       Wisconsin Stat. § 100.26(1) provides as follows: "Any person who violates any provision of this chapter, except s. 100.18,100.20, 100.206 or 100.51, for which no specific penalty is prescribed shall be fined not to exceed $200, or imprisoned in the county jail not more than 6 months or both."

       Wisconsin Stat. § 100.26(4) provides as follows: "Any person who violates s. 100.18 (1) to (8) or (10) or 100.182 is subject to a civil forfeiture of not less than $50 nor more than $200 for each violation."

       When the legislature in 1927 created what is now Wis. Stat. § 100.183, it placed the new provision in a chapter entitled "Offenses Against Public Health" and specified these penalties for a violation: a fine of $50 to $200, a jail sentence of thirty to sixty days, or both. See Wis. Stat. § 352.085(3) (1927) (entitled "Fraud, advertising foods"). At that time, the predecessor of Wis. Stat. § 100.18(1), which the legislature had created several years earlier, was located in a chapter entitled "Offenses Against Property," and it specified the same criminal penalties as the newly enacted food fraud provision. See Wis. Stat. § 343.413 (1927) (entitled "Fraudulent advertising").

       Additional support for this conclusion stems from the initial placement of the food-fraud provision in 1927 among other food and health-related provisions. See footnote 8, above.

       We agree with Wal-Mart that, because both the general note at the beginning of Wis. Admin. Code ch. ATCP 90 and the specific note following § ATCP 90.10 were adopted as parts of the same rulemaking order, we must either give effect to both and attempt to reconcile them, or ignore both as advisory and of no legal effect. Because the department is required by statute to state the statutory authority for its rules when promulgating them, see Wis. Stat. § 227.135(l)(e), we will consider its statements as persuasive and presumptively correct citations of its statutory authority for enacting both ch. ATCP 90 as a whole and § ATCP 90.10 in particular. See Pfeiffer v. Bd. of Regents, 110 Wis. 2d 146, 154-55, 328 N.W.2d 279 (1983) (An administrative agency's interpretation of its own regulation is entitled to controlling weight unless inconsistent with the language of the regulation or clearly erroneous).

       In support of this rationale for the note following Wis. Admin. Code § ATCP 90.10, Gallego points out that the DATCP explained the following in the "Analysis" included in its order promulgating chapter ATCP 90:
      Under [Wis. Stat. §] 97.09(1) . .. federal rules related to food definitions and standards of identity, quality and fill of container are automatically enforceable under state law. In order to facilitate enforcement of other [federal Nutrition Labeling and Education Act] labeling rules under state law, this rule incorporates FDA and USDA rules by reference under [Wis. Stat. §] 97.09(4).