author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. N. PATRICK CROOKS, J.

text:
    Heritage Mutual Insurance Company and Larsen Laboratories, Inc., Plaintiffs-Appellants-Petitioners v. William E. Larsen and Labor and Industry Review Commission, Defendants-Respondents.
    Supreme Court

      No. 98-3577.

      Oral argument January 31, 2001.

    Decided April 4, 2001.

    2001 WI 30
    (Also reported in 624 N.W.2d 129.)

      For the plaintiffs-appellants-petitioners there were briefs by Richard T. Mueller, John C. Possi and Mueller, Goss & Possi, S.C., Milwaukee, and oral argument by Richard T. Mueller.

    For the defendant-respondent, William E. Larsen, there was a brief by Robert T. Ward and Ward Law Firm, Waukesha, and oral argument by Robert T. Ward.

    For the defendant-respondent, Labor and Industry Review Commission, the cause was argued by Stephen M. Sobota, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is a review of an unpublished decision of the court of appeals. The court of appeals affirmed an order of the Circuit Court for Milwaukee County, Michael Malmstadt, Judge. The circuit court affirmed in part and reversed in part a decision of the Labor and Industry Review Commission (the Commission) awarding worker's compensation benefits to William E. Larsen for the partial amputation of his fingers and thumb, which were injured by frostbite.

¶ 2. The circuit court affirmed the Commission's decision to award worker's compensation benefits but reversed the Commission's decision regarding the 15% reduction of compensation. The court of appeals affirmed the order of the circuit court. Heritage Mutual Insurance Company seeks review in this court. We affirm both aspects of the Commission's decision.

¶ 3. On a cold winter day in 1996, Larsen was traveling to his northern Wisconsin mobile home, which doubled as a sales office. He stopped on the way at a tavern and consumed several drinks after he had taken two diet pills. Larsen later passed out trying to enter the mobile home, spent the night exposed to the below-zero temperatures, and suffered frostbite. The employer and its insurance company (hereafter referred to together as Heritage Mutual) argue that they should not be liable in any way for the employee's injury.

¶ 4. The Commission, however, concluded that Larsen was entitled to compensation under Wis. Stat. § 102.03(l)(f) (1997-98) of the worker's compensation law as a traveling employee of Larsen Laboratories, Inc., because he was performing acts "reasonably necessary for living or incidental thereto" at the time of his injury. The Commission further concluded that the award should be reduced by 15% under Wis. Stat. § 102.58 because Larsen's injury resulted from intoxication.

¶ 5. The present case must be viewed in the context of the worker's compensation law. The worker's compensation law strikes a balance between the competing interests of employers and employees. Although employers are liable for more injuries under worker's compensation law than under fault-based tort law, the amount of compensation employers must pay to injured employees is limited under worker's compensation, and employers are immune from employee tort actions. In return for recovering for injury even when they are at fault, employees are awarded less money than they would recover in fault-based tort actions, and employees give up the right to bring tort actions against their employers. "Worker's compensation laws are basically economic regulations by which the legislature, as a matter of public policy, has balanced competing societal interests."

¶ 6. Under Wisconsin worker's compensation law, employers are liable for work-related injuries that befall their employees, even if an employee is intoxicated. Nearly sixty years ago the court recognized that "[t]he wisdom of a policy which permits drunken employees to recover even a diminished compensation, where the intoxication causes injury, may be arguable as an original proposition, but after all, this is a matter in which the legislative intention is clear and the legislative power is plenary." Therefore, under Wisconsin worker's compensation law, "[i]ntoxication does not defeat a workmen's compensation claim but only decreases the benefits."

¶ 7. Furthermore, the legislature has authorized a state agency, the Labor and Industry Review Commission, to decide disputes between employers and employees relating to worker's compensation, and the legislature and our case law have limited judicial review of the Commission's decisions.

¶ 8. We conclude that the record contains substantial and credible evidence to support the Commission's findings of fact in this case. We further conclude that the Commission's application of the law to this fact situation must be affirmed as a reasonable interpretation, even if this court might have decided the case differently.

¶ 9. Accordingly, we affirm that part of the order of the circuit court and that part of the decision of the court of appeals awarding Larsen benefits under Wis. Stat. § 102.03(l)(f) as a traveling employee who was performing acts reasonably necessary for living or incidental thereto at the time of injury. We reverse that part of the order of the circuit court and that part of the decision of the court of appeals denying the 15% reduction ordered by the Commission under Wis. Stat. § 102.58 because Larsen's injury resulted from intoxication.c

I.

¶ 10. The Commission determined the following facts upon which it based its decision about awarding worker's compensation to Larsen.

¶ 11. William E. Larsen worked in various capacities for Larsen Laboratories, Inc., a metals testing and analysis business owned by Larsen and his wife. One of Larsen's functions within the business was sales, including phone calls and personal visits to potential customers.

¶ 12. At approximately 12:30 p.m. on January 31,1996, Larsen left the company's office in Oak Creek, Wisconsin, to make the 150-mile drive to Tigerton, Wisconsin, where he and his wife owned a mobile home that they sometimes used as a sales office. Larsen intended to spend the night in the mobile home, do company paperwork there, and then make a sales call to a former customer the next day.

¶ 13. Upon arriving in Tigerton at about 3:30 p.m., Larsen stopped to buy liquor, groceries, and feed corn for deer. He then proceeded to the local tavern. He admitted having four to five mixed drinks there, over a period of approximately one hour and forty-five minutes. The alcoholic beverages were in addition to a couple of Dexatrim diet pills Larsen had taken earlier that day. After leaving the tavern, Larsen drove to his mobile home at approximately 6 p.m., intending to prepare dinner and work on sales matters.

¶ 14. However, Larsen had difficulty opening the door to the mobile home, which was blocked by snow, and also had trouble getting his key to work. He felt dizzy and suffered from a slight headache. He broke a plastic window in the door, reached through the hole to open the door from the inside, and then lost consciousness. When he woke up the next morning at about 8:45 a.m., he was on the floor inside the trailer with the door open. The outside temperature had been 25 below zero when Larsen reached the home, and Larsen suffered severe frostbite, resulting in the amputation of the fingers and thumb of both hands.

¶ 15. The Commission concluded that Larsen's purpose in going to Tigerton was business-related and that Larsen was a traveling employee pursuant to Wis. Stat. § 102.03(l)(f).' The Commission further determined that Larsen was injured while performing acts reasonably necessary for living or incidental thereto and was not engaged in a deviation for a private or a personal purpose at the time of injury. According to the Commission, at the time of injury, Larsen was simply attempting to enter his domicile for the night, an act reasonably necessary for living.

¶ 16. In reaching this conclusion, the Commission applied the "positional risk doctrine." The positional risk doctrine is a body of law that is used to determine whether an accident causing injury arose out of employment under Wis. Stat. § 102.03(l)(f). Under the positional risk doctrine an injury is compen-sable if the injury would not have happened except that the employment put the claimant in the position where he was injured, that is, the employment put the employee in a zone of special danger.

¶ 17. According to the Commission, the zone of special danger to which Larsen was exposed in the present case was the extremely cold weather in Tigerton, and it was by reason of an employment activity (sheltering himself for the night while a traveling employee) that Larsen was exposed to this special danger.

¶ 18. The determinative fact, the Commission wrote, was that Larsen was performing acts reasonably necessary to living when his injury occurred. Even if the trip to the tavern was a deviation, wrote the Commission, the deviation ceased when Larsen returned to the home; at the time of injury he was entering his home, an act reasonably necessary for living. Thus the Commission concluded that Larsen was entitled to compensation, reasoning as follows:

Even were it to be found that the applicant had deviated from acts reasonably necessary for living by going to the tavern, a finding which the commission does not make, it would have to be found that the deviation had ceased by the time the applicant arrived at the trailer.

¶ 19. The Commission inferred that Larsen's intoxication was a substantial factor in causing the frostbite "because it was probable that he remained asleep for such an extended period due in part to his intoxication." Therefore the Commission reduced the worker's compensation award by 15%.

II

¶ 20. The first issue in this case is what standard of review this court should apply in reviewing the Commission's decision under Wis. Stat. § 102.03(l)(f).

¶ 21. The Commission's determination presents a mixed question of fact and law. Thus two standards of review come into play.

¶ 22. The Commission's determinations regarding the historical facts relating to Larsen's conduct and Larsen's purpose in traveling to Tigerton are findings of fact.

¶ 23. The Commission's determination of whether Larsen was performing service growing out of and incidental to the employee's employment or was engaging in a deviation for a private or personal purpose raises questions of law. Another question of law is whether the accident arose out of a hazard of such service.

¶ 24. Judicial review of the Commission's findings of fact is significantly limited by statute. First, the legislature has decreed that a court may not set aside an order or award unless "the findings of fact by the commission do not support the order or award." Second, the statutes provide'that findings of fact made by the Commission acting within its powers shall, in the absence of fraud, be conclusive. Third, the statute instructs that a court shall not substitute its judgment for that of the Commission as to the weight or credibility of the evidence on any finding of fact. A court may set aside the Commission's order or award if the order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence. The Commission's findings must be upheld even though they may be contrary to the great weight and clear preponderance of the evidence.

¶ 25. The question of whether Larsen was performing service growing out of and incidental to the employee's employment, whether he was engaged in a deviation for a private and personal purpose, and whether the accident arose out of a hazard of such service involves an interpretation of Wis. Stat. § 102.03(l)(f) and an application of the statute to the facts in the present case. Interpretation and application of statutes are questions of law. The court has recognized, however, that when the legislature has vested a state agency with the administration of a statute, the agency's decision, although not controlling, is entitled to deference. We have previously stated that great weight deference is appropriate in the following circumstances:

(1) the agency is charged by the legislature with .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 in the application of the statute.

¶ 26. All these circumstances exist in the present case. The Commission is charged by the legislature with administering the worker's compensation law, the Commission's interpretation of the traveling employee statute is of long standing, the Commission employed its expertise in its interpretation of the statute, and the Commission's interpretation of the traveling employee statute provides uniformity in the application of the traveling employee statute. Under these circumstances the court will give the Commission's application of the statute to the facts in this case great weight deference.

¶ 27. Under the great weight deference standard of review, a court will uphold the Commission's interpretation and application of the statute to the facts found unless the interpretation is unreasonable. An unreasonable interpretation of a statute is one that directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise without rational basis.

¶ 28. Heritage Mutual asks this court to reconsider the appropriate standard of review and asks the court to subject the Commission to stricter judicial review. We cannot do so. Section 102.23 of the statutes governing judicial review represents a considered legislative judgment that the Commission is the appropriate institution to make findings of fact, so long as credible and substantial evidence exists. In keeping with Wis. Stat. § 102.23, we have concluded that in cases such as the one before us, the Commission's interpretation and application of Wis. Stat. § 102.03(l)(f) will be given great weight deference and will be upheld so long as the Commission's decision is reasonable. The legislative purpose in restricting judicial review in worker's compensation is to discourage litigation so as to attain speedy justice for the employee. This court's standard of review is governed by this legislative purpose.

I I I

¶ 29. Heritage Mutual disputes the Commission's findings of fact that Larsen's purpose in traveling to Tigerton was to engage in a business trip for his employer. In its brief to this court, Heritage Mutual refers to evidence that Larsen had a non-business purpose for traveling to Tigerton. There is, however, competing evidence from which the Commission found that Larsen's purpose was to transact business.

¶ 30. The Commission's finding of fact that Larsen's purpose was to engage in a business trip and that he was a traveling employee is supported by credible and substantial evidence. Heritage Mutual is asking this court to substitute its judgment for that of the Commission as to the weight or credibility of the evidence on a finding of fact. We are prohibited by statute from doing so.

¶ 31. In reviewing the Commission's legal conclusion that Larsen was entitled to worker's compensation, we examine Wis. Stat. § 102.03(l)(f). Section 102.03(l)(f) provides that every traveling employee is covered for worker's compensation purposes at all times while on a trip, including all acts reasonably necessary for living or incidental thereto, except when engaged in a deviation for a private or personal purpose. The statute reads as follows:

102.03 (1) Liability under this chapter shall exist against an employer only where the following conditions occur:
(c) Where, at the time of the injury, the employe is performing service growing out of and incidental to his or her employment.
(e) Where the accident or disease causing injury arises out of the employe's employment.
(f) Every employe whose employment requires the employe to travel shall be deemed to be performing service growing out of and incidental to the employe's employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employe's employment.

¶ 32. The purpose of Wis. Stat. § 102.03(l)(f) is to give traveling employees broader protection when their employment causes them to be away from home. As this court has often noted, after the court had denied compensation for injuries arising from normal living activities of traveling employees, the legislature enacted the traveling employee provision in order to expand protections for traveling employees. The statute must be liberally construed to afford coverage for all services that can be reasonably said to come within it.

¶ 33. The statute creates a presumption that a traveling employee is performing services incidental to employment at all times during the business trip. In order to rebut the statutory presumption, the employer must show both that the employee deviated from the business trip and that the deviation was for a private or personal purpose that was not reasonably necessary for living or incidental thereto.

¶ 34. The Commission concluded that even if Larsen's trip to the tavern was a deviation from the business trip for a personal purpose, the deviation ceased by the time he arrived at the mobile home. The extreme cold weather in Tigerton was a zone of special danger to which Larsen was exposed by reason of an employment activity, according to the Commission.

¶ 35. Applying the great weight deference standard, the question for this court is whether the Commission's application of the statute to the facts in the present case is reasonable.

¶ 36. The law is clear that an employee is not covered under the worker's compensation law if injured during a deviation. The law is equally clear that an employee who has deviated will be covered under the worker's compensation law once the employee resumes activities that are reasonably necessary to living. In Lager v. ILHR Department, 50 Wis. 2d 651, 661, 185 N.W.2d 300 (1971), this court expressed this position as follows:

It is clear, as a matter of law, that, in the event a salesman commences travel in the course of his employment and subsequently deviates from that employment but later resumes his route which he would have to follow in the pursuance of his employer's business, the deviation has ceased and he is performing services incidental to and growing out of his employment.

¶ 37. Whether Larsen's multiple drinks at the local tavern are a deviation for purely personal purposes not reasonably necessary to living or incidental thereto is irrelevant in this case because Larsen, unlike the claimant-employees denied benefits in other worker's compensation cases involving intoxication, was not injured while at the tavern or while on the road coming from or going to the tavern. In contrast, Larsen was injured at his mobile home, when he struggled in the cold to open the door and lost consciousness.

¶ 38. The Commission concluded that by the time Larsen was attempting to enter his mobile home, he was engaged in an act that was reasonably necessary to living or incidental thereto. The deviation, if any, had concluded, wrote the Commission, and Larsen had resumed the route that he would have to follow in the pursuit of his employer's business.

¶ 39. Granting the Commission's decision the great weight deference due it, we affirm the decision as did the circuit court and court of appeals. It is reasonable. The Commission's decision does not directly contravene the words of the statute. It is not clearly contrary to legislative intent. It represents a rational conclusion based upon factual findings supported by credible and substantial evidence. The Commission's decision is consistent with the legislative intent to give traveling employees broader protection when working away from home.

¶ 40. Heritage Mutual seems to argue that Larsen's stop at the tavern and his resulting intoxication were such that the deviation continued even upon Larsen's return to his mobile home, his business site while traveling. Heritage Mutual urges this court to reverse the Commission's conclusion by imposing an outer limit on an employee's ability to resume his employment following a substantial deviation. It refers this court to a decision of the Michigan supreme court, in which that court stated that the right to coverage is not a "blank check" that the deviating employee may "cash" at any time no matter how extensive the deviation. Under the reasoning of the Michigan supreme court, a significant deviation may break the employment nexus.

¶ 41. In applying worker's compensation statutes, this court has declined to set forth a brightline rule regarding when a deviation will break the employment nexus. See Van Roy v. Industrial Comm'n, 5 Wis. 2d 416, 425-26, 92 N.W.2d 818 (1958). Rather than adopt a bright-line rule barring recovery based on the time or distance of the deviation, this court concluded that variations in the nature and setting of employment call for a case-by-case inquiry. Id. at 425-26.

¶ 42. In the present case, the Commission concluded that, if a deviation had occurred, the business trip resumed when Larsen was at the home; therefore, no break in the nexus of employment occurred. This decision is reasonable.

¶ 43. Finally, Heritage Mutual argues that even if Larsen was engaged in an employment activity at the time of his injury, his injury was caused by factors that were purely personal to him. Thus Heritage Mutual is arguing that the accident did not arise out of a hazard of his service under Wis. Stat. § 102.03(l)(f). Heritage Mutual urges this court to reverse the Commission's determination based on the evidence of Larsen's intoxication. We conclude, however, that the Commission acted reasonably in light of the legislative determination that intoxication reduces, but does not necessarily eliminate, an employee's recovery. Wis. Stat. § 102.58.

¶ 44. In Wisconsin, unlike several other states, intoxication does not bar a worker's compensation award. Instead, the legislature has instructed the Commission to reduce a worker's compensation award by 15% if the injury resulted from intoxication. Section 102.58 represents the legislature's judgment regarding the extent to which an employee's intoxication should affect recovery under worker's compensation.

¶ 45. Evidence of intoxication is relevant to the determination of whether the employee was engaged in a deviation at the time of injury. The Commission may, however, determine that an employee, although intoxicated, was not engaged in a deviation at the time of injury. "This court has pointedly refrained from ruling as a matter of law that intoxication is synonymous with personal deviation. . . .[I]ntoxication, while indicative of intent to deviate, does not per se defeat a claim but only decreases benefits." That Larsen was a traveling employee under Wis. Stat. § 102.03(l)(f) does not change the effect of Wis. Stat. § 102.58. To conclude otherwise would give traveling employees less protection than other employees. Such a result is contrary to the legislature's intent to give employees broader protection when their employment causes them to be away from home.

¶ 46. Heritage Mutual further relies on Goranson v. ILHR, 94 Wis. 2d 537, 289 N.W.2d 270 (1980), in which the court upheld the Commission's denial of coverage to a traveling employee who, while in a hotel room with a woman who was not his spouse, climbed out of the window of his third-floor room and jumped from the ledge. The Goranson court concluded that there was credible evidence to support the Commission's determination that the employee's injury did not arise out of a zone of special danger created by the fact that his employment required him to be at the hotel, but rather out of forces that were purely personal to the employee.

¶ 47. Heritage Mutual attempts to draw an analogy from Goranson to the present case, arguing that Larsen's injury did not arise out of the cold weather, which is the zone of special danger created by his employment, but rather out of Larsen's own intoxication, a force that was purely personal to him.

¶ 48. However, Goranson does not stand for the proposition that an employee is barred from recovery when a purely personal force contributes to an injury. Indeed, the court in Goranson made clear that an injury is noncompensable if the Commission concludes that the injury was caused by purely personal forces, so that employment contributes nothing to the injury. See Goranson, 94 Wis. 2d at 556-57.

¶ 49. We addressed the limits of the Goranson holding in Weiss v. City of Milwaukee, 208 Wis. 2d 95, 559 N.W.2d 588 (1997), when we concluded that an employee was entitled to worker's compensation when the employer disclosed personal information to the employee's assaultive ex-husband. The disclosed information contributed to the employee's injury. Even though the animus of the ex-husband was a factor purely personal to the employee, the employee was covered.

¶ 50. We conclude that Goranson does not require us to set aside the Commission's award in the present case. In this case, as in Goranson, we are reviewing the Commission's decision for reasonableness. Just as we concluded that the Commission's determination in Goranson was reasonable, so too do we conclude that the Commission's decision in the present case is reasonable.

¶ 51. The Commission concluded in the present case that Larsen's frostbite arose out of the zone of special danger created by his employment, the cold weather, and Larsen's difficulties in opening the door of his mobile home. The Commission could conclude that these are factors that are not purely personal to Larsen, but rather that they arose out of his employment. Moreover, the Commission was mindful of the legislative determination that intoxication reduces, but does not necessarily eliminate, an employee's recovery. Wis. Stat. § 102.58.

¶ 52. In affirming the Commission's decision in this case, the court recognizes that this is a close case. The Commission might have ruled the other way. In close, borderline cases like the present one, the Commission may very well rule in favor of the claimant, "principally because it was the intent and purpose of the act to bring border-line cases under it and to close up avenues of escape which would naturally be suggested to those seeking to evade liability under the act."

¶ 53. The Commission's conclusion is within the range of reasonableness, even as Heritage Mutual characterizes the determination as pushing, or even breaking, the envelope. Perhaps this court might have reached a different conclusion under the facts of the case if the legislature had authorized this court to review Commission decisions de novo. Nevertheless, under the great weight deference standard of review, a reviewing court may not second-guess a reasonable interpretation of a statute by a state agency.

¶ 54. For the reasons set forth we conclude that the Commission's determination is reasonable and must be affirmed by this court.

IV

¶ 55. The final issue in the present case is whether the Commission properly determined that Larsen's injury resulted from his intoxication, triggering a 15% reduction in his benefits under Wis. Stat. § 102.58. Section 102.58, entitled decreased compensation, provides:

If injury is caused by the failure of the employe to use safety devices which are provided in accordance with any statute or lawful order of the department and are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employe's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employe and of which the employe has notice, or if injury results from the intoxication of the employe by alcohol beverages, as defined in s. 125.02 (1), or use of a controlled substance, as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m), the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000 (emphasis added).

¶ 56. The questions of whether Larsen was intoxicated and whether his injury resulted from intoxication, so that the compensation is reduced by 15% under Wis. Stat. § 102.58, have been treated in the case law as questions of fact. The Commission's factual findings are conclusive, as we have explained previously, in the absence of fraud, and an order or award may not be set aside unless the findings of fact are not supported by credible and substantial evidence. If the record contains credible and substantial evidence regarding both intoxication and causation, the Commission may draw reasonable inferences from this evidence. See Olson v. Indus. Comm'n, 273 Wis. 272, 77 N.W.2d 410 (1956).

¶ 57. The Commission's order stated:

The commission infers from the applicant's testimony concerning how much he drank at the tavern on January 31, 1996, that he was intoxicated. It additionally infers that this intoxication was a substantial factor in causing the applicant's frostbite injuries, because it is probable that he remained asleep for such an extended period due in part to his intoxication.

¶ 58. The circuit court reversed the Commission's 15% reduction, holding that there was no evidence on the record that a person was more likely to remain asleep if intoxicated. The circuit court further noted that the record contains no evidence linking the length of time Larsen remained asleep to the frostbite.

¶ 59. Under Wis. Stat. § 102.58, an employer bears the burden of establishing that an employee was intoxicated at the time of injury and of establishing a causal connection between the intoxication and the injury.

¶ 60. Larsen argues that the circuit court correctly reversed the Commission's 15% reduction because no evidence supports a finding of intoxication or a finding that intoxication caused Larsen to remain asleep long enough to suffer frostbite.

¶ 61. We disagree with Larsen, the circuit court, and the court of appeals and uphold the Commission's findings of fact that Larsen was intoxicated and that the injury resulted from intoxication. While we agree with Larsen that there is no direct evidence in the record of intoxication or that intoxication caused Larsen to remain asleep for an extended period, or that Larsen's extended exposure to the cold caused his injury, these inferences may reasonably be drawn from the record.

¶ 62. The renal consultation report of Dr. Matthew Hanna, on February 2, 1996, one day after Larsen's frostbite, stated the following "impressions" regarding patient Larsen: "1. Ethanol abuse; 2. Loss of consciousness secondary to the above. 3. Severe frostbite injury." Dr. Hanna's report is credible and substantial evidence to establish intoxication, a causal link between Larsen's intoxication and his loss of consciousness and the injury.

¶ 63. Larsen suggests that this report is not credible and substantial evidence to support the Commission's findings that intoxication caused the injury. Larsen testified during the Commission hearing that he did not know what caused the injury and denied that any doctor had attributed his injury to intoxication. The Commission, however, could have discounted Larsen's testimony regarding causation. Indeed, the record contains reports from a psychiatrist and a social worker stating that Larsen was in denial regarding the seriousness of his drinking.

¶ 64. Again, the Commission might have made different findings of fact on this record. Other factors than intoxication may have caused Larsen to lose consciousness. The record shows Larsen used diet pills and had exerted himself in the cold. No evidence was presented about the effect of alcoholic beverages on sleep patterns or the length of time exposure to cold causes frostbite. Nevertheless, this court need not set aside the Commission's findings of fact. The Commission could draw reasonable inferences from the credible and substantial evidence in the record that Larsen's intoxication caused him to lose consciousness and suffer frostbite as a result of exposure.

¶ 65. Larsen relies on Haller Beverage Corp. v. ILHR Department, 49 Wis. 2d 233, 181 N.W.2d 418 (1970), in which an employee with a blood alcohol level of 0.29 percent crashed his car into a bridge abutment. The employer in Haller presented evidence that the employee was intoxicated, but the employer failed to present any evidence to establish a causal link between the intoxication and the crash. Instead, the employer relied on the absence of evidence of any alternative cause for the accident. This court upheld the Commission's determination that the employer had not met its burden of proof under Wis. Stat. § 102.58, stating:

In meeting a burden of proof, absence of testimony is not the same as presence of testimony. It is true that the employer and insurance carrier were not required to negate all possible explanations of the car veering to hit the abutment. But they were required to establish a causal link between the condition of intoxication and the injury. This they did not do.

Haller, 49 Wis. 2d at 236 (citation omitted).

¶ 66. Haller also drew on Massachusetts Bonding & Insurance Co. v. Industrial Commission, 8 Wis. 2d 606, 99 N.W.2d 809 (1959), in which this court upheld the Commission's determination that the employer had failed to show that intoxication had caused an employee to fall down a flight of stairs. The record contained no evidence whatsoever regarding how the accident occurred, so the employer's suggestion that the fall was due to intoxication was mere suspicion.

¶ 67. Haller and Massachusetts Bonding stand in contrast to Olson v. Industrial Commission, 273 Wis. 272, 77 N.W.2d 410 (1956), in which an intoxicated employee's vehicle overturned when the vehicle struck a concrete ditch on the wrong side of the road. In that case, the employee presented evidence of a mechanical defect in the vehicle, while the employer presented physical evidence that the employee had been driving for some distance on the wrong side of the road. This court stated that the Commission could reasonably infer from this evidence that intoxication caused the employee to be driving on the wrong side of the road, which in turn caused the accident. These three cases, taken together, demonstrate the court's deference to the Commission's findings regarding whether intoxication caused an injury under Wis. Stat. § 102.58.

¶ 68. The Commission was entitled to draw the reasonable inference in the present case that intoxication caused Larsen to remain asleep for an extended period and that his injury was caused by his long exposure to the cold.

¶ 69. Accordingly we conclude that there is credible and substantial evidence in the record to support the Commission's determination that the injury resulted from intoxication and that the 15% award reduction required by Wis. Stat. § 102.58 applies.

¶ 70. Because we conclude that the Commission properly reduced Larsen's award under Wis. Stat. § 102.58, we reverse the portion of the circuit court's order and the decision of the court of appeals denying the 15% reduction. We affirm the portion of the decision of the circuit court and the court of appeals upholding the Commission's determination that Larsen was entitled to coverage under Wis. Stat. § 102.03(l)(f). The Commission's decision is therefore affirmed in its entirety.

By the Court. — The decision of the court of appeals is affirmed in part and reversed in part.

N. PATRICK CROOKS, J.

¶ 71. (concurring in part, dissenting in part). The majority defers too much to great weight deference. The Labor and Industry Review Commission's determination that William E. Larsen suffered an injury covered by Wis. Stat. § 102.03(1) is neither reasonable nor in accord with the purpose of § 102.03(1). The Commission could not have simultaneously concluded both that there was a compensable injury here and that Larsen's intoxication caused his injuries, where the accident causing the injuries did not arise from Larsen's employment, but from a cause solely personal to him — that is, his intoxication. The Commission's determination thus contravenes the statutory directive that there is coverage only "[w]here the accident. . .causing injury arises out of the employe's employment." Wis. Stat. § 102.03(l)(e).

¶ 72. Wisconsin Stat. § 102.03(1) imposes liability upon an employer for a traveling employee's injury only where the accident that caused the injury arises from the employment relationship.

In order for liability to accrue, it is necessary both that the employee at the time of the accident be performing services growing out of and incidental to his employment and that the accident causing injury must arise out of his employment. The phrase "arising out of' refers to the causal origin of the injury and the "course of employment" phrase refers to the time, place, and circumstances of the accident in relation to the employment.
The "travelling employee" statute does not modify these two requirements, it merely provides the employee with a statutory presumption in favor of both of these requirements. . . .[E]ven in those cases where the travelling employee presumption applies, the "accident. . .must arise out of a hazard of such service...."

Goranson v. ILHR Dep't, 94 Wis. 2d 537, 549-50, 289 N.W.2d 270 (1980) (citations, footnotes omitted, emphasis in original). Typically, this court has addressed the "course of employment" element of liability rather than the causation or the "arising out of the employment" element. Id. at 549 n.3. However, this court did address the causation element, which is determinative here, in Goranson.

¶ 73. This case is strikingly similar to Goranson. Goranson was a bus driver for Whitie's Transportation, which provided a charter bus to a Green Bay Packers football game in Green Bay from Barron, Wisconsin. Id. at 542. On the night of the injury for which Goran-son sought worker's compensation, he consumed a large amount of alcohol — a couple of drinks upon arrival at the hotel where he and the bus passengers were staying, and four more with a late dinner. Id. A witness reported that at about 1:30 a.m., Goranson was in the lobby and had been drinking. Id. at 543. At about 2:30 a.m., another witness reported hearing "screaming and cussing" from Goranson's room and saw Goranson, "dazed or drunk, or something," climbing out of a window; then he jumped. Id. at 544.

¶ 74. Goranson claimed that he had gone to sleep and awoke to find someone in the room, with whom he scuffled. Id. at 542-43. According to Goranson, he was pushed out of the window and was hanging on the ledge until he dropped to the roof of the hotel kitchen. Id. at 541, 543. When the police examined his room, they found that other than a tipped over chair and some blood on sheets and pillowcases, there was no sign of a struggle and nothing was missing from the room. Id. at 544. There was also no sign of forced entry and Goran-son's room had been locked from the inside. Id. at 542, 556. Goranson suffered a broken hip and other injuries from jumping from his third floor room. Id. at 541.

¶ 75. The Department of Industry, Labor and Human Relations determined that Goranson's injuries were not compensable. Id. at 540. The Department concluded that although Goranson was performing services growing out of and incidental to his employment, Goranson's injuries did not arise out of his employment. Id. at 542.

¶ 76. This court agreed. In determining whether the injury arose out of Goranson's employment, the court applied the "positional risk doctrine."

The definition of the positional risk doctrine can be stated as follows: "[Ajccidents arise out of employment if the conditions or obligations of the employment create a zone of special danger out of which the accident causing the injury arose. Stated another way, an accident arises out of employment when by reason of employment the employee is present at a place where he is injured through the agency of a third person, an outside force, or the conditions of special danger."

Id. at 555 (quoting Cutler-Hammer, Inc. v. Industrial Comm'n, 5 Wis. 2d 247, 254, 92 N.W.2d 824 (1958)).

¶ 77. This court has, where appropriate, applied the positional risk doctrine to uphold a determination that an employer is liable for a traveling employee's injury. "Such cases include, among others, accidents arising from horseplay, weather conditions, and assaults." Nash-Kelvinator Corp. v. Industrial Comm'n, 266 Wis. 81, 86, 62 N.W.2d 567 (1954). Goranson apparently tried to fit into the assault category. However, unlike the applicant in Nash-Kelvinator, Goranson was not subjected to mob violence by coworkers. Id. at 83. There also was not an assault as there was in Weiss v. City of Milwaukee, 208 Wis. 2d 95, 99-100, 559 N.W.2d 588 (1997) where the employer released confidential information about an employee who was subsequently harassed by her ex-husband.

¶ 78. Rather, the court concluded that Goran-son's injuries "arose out of a cause solely personal to the employee and did not arise out of the employ-ment_" Goranson, 94 Wis. 2d at 556. The court found that credible evidence supported the Department's determination as such. Goranson "voluntarily allowed someone" into his hotel room. Id. at 556. And, "for reasons known only to Mr. Goranson he crawled out of the window, stood on the ledge, and jumped." Id. In other words, Goranson's actions, and not his employment, created a zone of special danger or hazard out of which his injuries arose. "The situation in which Mr. Goran-son found himself was not one which was created by the risk of staying at the hotel." Id. at 557.

¶ 79. Similarly, here, the situation in which Larsen found himself was not one created by the risk of staying at his mobile home. The situation Larsen found himself in was created by his own, voluntary actions, namely, his intoxication. Indeed, because of that fact, this case indicates, more strongly than in Goranson where the court did not rely upon any finding that Goranson was intoxicated, that the injuries did not arise from the employment relationship.

¶ 80. Here, the Commission failed to apply, reasonably, the positional risk doctrine when it ignored its own finding that Larsen's intoxication caused his injuries. For the positional risk doctrine to be applied correctly, "[a]ll that is required is that the 'obligations or conditions' of employment create the zone of special danger' out of which the injury arose." Butler v. Industrial Comm'n, 265 Wis. 380, 385, 61 N.W.2d 490 (1953). The Commission initially concluded that sub-zero temperatures created a special zone of danger out of which Larsen's injuries arose. More importantly, the Commission also concluded that Larsen's intoxication caused his injuries, and reduced his compensation correspondingly. See majority op. at ¶ 55; see also Wis. Stat. § 102.58 (benefits are reduced where there is a causal connection between the'intoxication and the injury). It was not the weather that was the special zone of danger or hazard f<?r Larsen. It was his intoxication. But for the fact that he passed, out, and that he lost consciousness, while half inside, half outside of his mobile home, the weather would have been of no effect. The accident that caused Larsen's injuries — passing out — did not arise "out of a hazard of such service [of employment]." Wis. Stat. § 102.03(l)(f). Thus, the accident could not "be deemed to arise out of the employe's employment." Id.

¶ 81. Rather, here, as in Goranson, the cause of Larsen's injuries was solely personal to him. When Larsen arrived in Tigerton, he consumed five to six alcoholic drinks within less than two hours at the Split Rock Tavern. There was no connection between his employment and his drinking. He was not entertaining potential clients. "It cannot be said the intoxicants he ordered were in any way in the furtherance of his employer's business." Dibble v. ILHR Dep't, 40 Wis. 2d 341, 350, 161 N.W.2d 913 (1968) (intoxication relevant to issue of personal deviation). As in Goranson, Larsen "deliberately acted to place himself in a position where he sustained an injury which was not a risk incidental to his employment relationship. . .." 94 Wis. 2d at 557. The cold was not, and would not have been, a risk for Larsen, but for his self-induced intoxication.

¶ 82. The Commission admits that Larsen was intoxicated and that that intoxication caused his injuries. But the Commission fails to make the required and necessary connection to find a compensable injury here — that the accident causing the injury was related to Larsen's employment. Here, the accident, losing consciousness or passing out, was not caused by the weather. It was not caused by an outside force or third person. Here, as in Goranson, there was no special zone of danger that arose from the employment relationship, but instead a self-created zone of danger, even though the place of the injury was connected to the requirements of his employment. Simply, there was nothing about his employment that put him in harm's way.

¶ 83. Although it is not necessary to find that the Commission also unreasonably concluded that Larsen had returned to the "course of employment" if he had deviated from his business trip (see majority op. at ¶¶ 41-42), there is certainly a basis for such a finding, given the extent of Larsen's deviation. Larsen's deviation—imbibing at least 4 or 5 drinks of Kessler Whiskey and diet Coke without dining — could reasonably be considered as unnecessary for living or not incidental thereto. Goranson, 94 Wis. 2d at 550 n.3. As this court indicated in Dibble v. ILHR Dep't, 40 Wis. 2d 341, 161 N.W.2d 913 (1968), "[w]hile a cocktail or two before dinner probably is an acceptable social custom incidental to an act reasonably necessary to living, the department could conclude that Dibble's indulgence was beyond reasonableness." Id. at 350.

¶ 84. Indeed, Larsen's consumption of at least 4 or 5 alcoholic drinks in less than two hours is more reasonably considered as a break in the employment nexus. See Bush v. Parmenter, Forsythe, Rude & Dethmers, 413 Mich. 444, 457, 320 N.W.2d 858 (1982). In Bush, the applicant employee had attended a seminar out of town, and, on his way back home, had become intoxicated. Id. at 448-49. A restaurant where he had stopped had attempted to have him take a cab home, but he refused. Id. at 448. He left, and was murdered shortly thereafter. Id. The Michigan Supreme Court vacated the award of worker's compensation benefits, finding that the "nexus between the employment and the injury was dissolved" by the employee's deviation. Id. at 460. Similarly here, Larsen's drinking and subsequent intoxication whs a deviation from the purpose of his business trip, so that it dissolved any connection — if any there was — between his employment and his injuries.

¶ 85. Nonetheless, the Commission unreasonably concluded that the accident causing Larsen his injuries arose from his employment. The Commission's conclusion is not only unreasonable, but also directly contravenes the requirement of Wis. Stat. § 102.03(1)(f) that there is coverage only where the accident arises out of a hazard of such service of employment. Accordingly, the Commission determination, even under a great weight deference standard of review, must be overturned. CBS, Inc. v. LIRC, 219 Wis. 2d 564, 573, 579 N.W.2d 668 (1998). Certainly the legislature did not intend to provide worker's compensation for those injuries caused by an employee's intoxication where there is no connection whatsoever between the employment relationship and the intoxication.

¶ 86. The conclusion that Larsen is not entitled to worker's compensation benefits because his injury did not arise from his employment, but arose from a self-created zone of danger due to his intoxication, does not ignore Wis. Stat. § 102.58, or, as the majority suggests, undermine the travelling employee protections in § 102.03. The legislature's intent to limit, but not preclude, compensation where the employee's injury results from intoxication presumes that there already is a compensable injury. Where the injury does not arise from the employment, there is no compensable injury. Wis. Stat. § 102.03(l)(e), (f). Here, Larsen's intoxication is not the cause of an otherwise compensa-ble injury, so § 102.58 does not even come into play. Nonetheless, I concur in the majority's conclusion that, at the very least, the Commission correctly reduced Larsen's award by 15% on account of his intoxication.

¶ 87. For the reasons stated herein, I respectfully dissent to that portion of the majority's opinion that upholds the Commission's decision to award Larsen worker's compensation benefits.

¶ 88. I am authorized to state that Justice JON P. WILCOX and Justice DIANE S. SYKES join in this opinion.

        Heritage Mut. Ins. Co. v. Larsen, No. 98-3577, unpublished slip op. (Wis. Ct. App. March 14, 2000) (per curiam).

      Wisconsin Stat. § 102.03(1)(f) (1997 — 98) provides as follows:
      Every employe whose employment requires the employe to travel shall be deemed to be performing service growing out of and incidental to the employe's employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employe's employment.

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

         See Bauernfeind v. Zell, 190 Wis. 2d 701, 713, 528 N.W.2d 1 (1995).

         Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 180, 290 N.W.2d 276 (1980).

         Nutrine Candy Co. v. Indus. Comm'n, 243 Wis. 52, 55—56, 9 N.W.2d 94 (1943).

         Dibble v. ILHR Dep't, 40 Wis. 2d 341, 350, 161 N.W.2d 913 (1968).

         See, e.g., Weiss v. City of Milw., 208 Wis. 2d 95, 107, 559 N.W.2d 588 (1997); Goranson v. ILHR Dep't, 94 Wis. 2d 537, 555-57, 289 N.W.2d 270 (1980); Nash-Kelvinator Corp. v. Indus. Comm'n, 266 Wis. 81, 86, 62 N.W. 2d 567 (1954).

       Wisconsin Stat. § 102.23(1)(e) provides as follows:
      Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:
      1. That the commission acted without or in excess of its powers.
      2. That the order or award was procured by fraud.
      3. That the findings of fact by the commission do not support the order or award.
      The only ground relevant in the present case for setting aside the Commission's award is § 102.23(l)(e)3.

       Wisconsin Stat. § 102.23(1)(a) provides, inter alia:
      The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or final, whether judgment has been rendered on it or not, is subject to review only as provided in this section and not under ch. 227 or s. 801.02.

       Wisconsin Stat. § 102.23(6) provides:
      If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

        Goranson, 94 Wis. 2d at 554.

        Wisconsin Elec. Power Co. v. LIRC, 226 Wis. 2d 778, 787, 595 N.W.2d 23 (1999); CBS, Inc. v. LIRC, 219 Wis. 2d 564, 572, 579 N.W.2d 668 (1998).
      Earlier cases indicated that the application of the statute to the facts was a question of fact and that the Commission's decision would be upheld if it was supported by credible and substantial evidence. See, e.g., Hunter v. ILHR Dep't, 64 Wis. 2d 97, 102, 218 N.W.2d 314 (1974). In all of the cases, however, the court repeatedly stated that it would not set aside a Commission's decision unless the decision was unreasonable.

       This court reviews the Commission's determination independently of the court of appeals or circuit court, benefiting from their analysis. West Bend Co. v. LIRC, 149 Wis. 2d 110, 117, 438 N.W.2d 823 (1989).

       CBS, Inc., 219 Wis. 2d at 572.

       CBS, Inc., 219 Wis. 2d at 572-73.

        Wisconsin Elec. Power Co., 226 Wis. 2d at 787; CBS, Inc., 219 Wis. 2d at 572-73.

         CBS, Inc., 219 Wis. 2d at 573.

        Goranson, 94 Wis. 2d at 553; Consolidated Papers, Inc. v. ILHR Dep't, 76 Wis. 2d 210, 216, 251 N.W.2d 69 (1977); R.T. Madden v. ILHR Dep’t, 43 Wis. 2d 528, 536, 169 N.W.2d 73 (1969).

       CBS, Inc., 219 Wis. 2d at 568 n.4.

        Wisconsin Elec. Power Co., 226 Wis. 2d at 788; CBS, Inc., 219 Wis. 2d at 579.

        Wisconsin Elec. Power Co., 226 Wis. 2d at 788; Hansen v. Indus. Comm'n, 258 Wis. 623, 628, 46 N.W.2d 754 (1951).

        Wisconsin Elec. Power Co., 226 Wis. 2d at 792; CBS, Inc., 219 Wis. 2d at 579.

        Wisconsin Elec. Power Co., 226 Wis. 2d at 788-89; CBS, Inc., 219 Wis. 2d at 578-79.

        Wisconsin Elec. Power Co., 226 Wis. 2d at 789-90.

         See also Olson v. Indus. Comm'n, 273 Wis. 272, 275-76, 77 N.W.2d 410 (1956); Nutrine Candy Co., 243 Wis. at 56.

         CBS, Inc., 219 Wis. 2d at 579.

         See Bush v. Parmenter, Forsythe, Rude & Dethmers, 320 N.W.2d 858, 865 (Mich. 1982).

         See, e.g., Tenn. Code Ann. § 50 — 6—110(a) (2000) (denying compensation where injury is due to intoxication); Ohio Rev. Code Ann. § 4123.54 (Anderson 2000) (denying compensation where injury resulted from intoxication); Ind. Code Ann. § 22-3-2-8 (Michie 2000) (denying compensation when injury is due to intoxication).

        See also Idaho Code § 72-208 (Michie 2000) (denying income benefits where "intoxication is a reasonable and substantial cause of an injury"). Like Wisconsin, Idaho used to require only a percentage reduction in benefits for injuries caused by intoxication. See Hatley v. Lewiston Grain Growers, Inc., 552 P.2d 482 (Idaho 1976) (applying a 50% reduction in accordance with prior Idaho statute).

       Wisconsin Stat. § 102.58, Decreased compensation, provides:
      If injury. . .results from the intoxication of the employe by alcohol beverages, as defined in s. 125.02 (1),. . .the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000.

        City of Phillips v. ILHR Dep't, 56 Wis. 2d 569, 579, 202 N.W.2d 249 (1972).

       See Wisconsin Electric Power Co., 226 Wis. 2d at 788; CBS, Inc., 219 Wis. 2d at 579.

         Tesch v. Indus. Comm'n, 200 Wis. 616, 627, 229 N.W. 194 (1930). See also Wisconsin Elec. Power Co., 226 Wis. 2d at 796; CBS, Inc., 219 Wis. 2d at 581 (quoting City of Phillips, 56 Wis. 2d at 579-80).

         See Massachusetts Bonding & Ins. Co. v. Indus. Comm'n, 8 Wis. 2d 606, 609, 99 N.W.2d 809 (1959).

         See Haller Beverage Corp. v. ILHR Dep't, 49 Wis. 2d 233, 237, 181 N.W.2d 418 (1970); Massachusetts Bonding & Ins. Co., 8 Wis. 2d at 608-09.

       The Commission has not appealed the circuit court's reversal of this portion of its order.

       As noted in the majority opinion (at ¶ 27), even under the great weight deference standard of review, if the Commission's interpretation is unreasonable — that is, the interpretation "directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise. . .without rational basis" — it cannot be upheld. Wisconsin Elec. Power Co. v. LIRC, 226 Wis. 2d 778, 787, 595 N.W.2d 23 (1999) (citations omitted).

       It is noteworthy that the Commission did not discuss the traveling employee presumption. Presumably, the Commission concluded that even if the presumption dropped out of consideration because evidence to the contrary had been presented (see Goranson v. ILHR Dep't, 94 Wis. 2d 537, 551, 289 N.W.2d 270 (1980)), the Commission's conclusions would have been the same.

       The Department of Industry, Labor and Human Relations is now known as the Department of Workforce Development. The legislature renamed the Department of Industry, Labor and Human Relations the Department of Industry, Labor and Job Development, effective July 1, 1996. However, the Department was given the option to use the name Department of Workforce Development which it did. The legislature recognized the name change in 1997. Wisconsin Blue Book 1999-2000 493 (Wisconsin Legislative Reference Bureau ed., 1999). The Labor and Industry Review Commission now reviews decisions of the Department of Workforce Development. Id. at 496.

       At the time that Goranson was decided, this court applied a credible evidence standard of review to determinations of whether there was a deviation from employment or whether the injury arose from the employment. Goranson, 94 Wis. 2d at 553; Hansen v. Industrial Comm'n, 258 Wis. 623, 626, 46 N.W.2d 754 (1951). Now, such determinations are reviewed as questions of law — statutory interpretation — by way of great weight deference. See CBS, Inc. v. LIRC, 219 Wis. 2d 564, 584-85, 579 N.W.2d 668 (1998) (Crooks, J., concurring). Accordingly, here, whether Larsen's injuries arose from his employment is considered a question of law.

       Wisconsin Stat. § 102.58 provides in pertinent part: "[I]f injury results from the intoxication of the employe by alcohol beverages,. . .the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000."


source: Caselaw Access Project

author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

license: Public Domain

text:
    State of Wisconsin ex rel. James A. Mentek, Jr., Petitioner-Appellant-Petitioner, v. David H. Schwarz, Administrator, Division of Hearing and Appeals, Respondent-Respondent.
    Supreme Court

      No. 99-0182.

      Oral argument March 1, 2001.

    Decided April 4, 2001.

    2001 WI 32
    (Also reported in 624 N.W.2d 150.)

      For the petitioner-appellant-petitioner there were briefs by Stephen M. Compton and Stephen M. Compton, S. C., Delavan, and oral argument by Stephen M. Compton.

    For the respondent-respondent the cause was argued by William C. Wolford, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is a review of a published decision of the court of appeals, State ex rel. Mentek v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746. The court of appeals affirmed an order of the Circuit Court for Kenosha County, Mary K. Wagner-Malloy, Judge. The circuit court order dismissed the petition for a writ of certiorari filed by James A. Mentek, Jr. seeking judicial review of a March 6, 1998, order of the Department of Hearings and Appeals revoking his probation. The circuit court dismissed the petition on the grounds that Mentek failed to exhaust his administrative remedies before filing the petition as required by Wis. Stat. § 801.02(7)(1995-96). The court of appeals also con-eluded that Mentek's administrative remedies were not exhausted pursuant to § 801.02(7).

¶ 2. The issue on review is whether Mentek was required to exhaust his administrative remedies under § 801.02(7) or any other rule of law in order to petition the circuit court for writ of certiorari. We conclude that Wis. Stat. § 801.02(7) (1995-96) does not apply to a petition for a writ of certiorari seeking judicial review of a probation revocation by the Department of Administration. We further hold that this case falls within recognized exceptions to the doctrine of exhaustion of administrative remedies. Accordingly, we reverse and remand Mentek's petition to the circuit court for consideration.

¶ 3. This review centers on Mentek's probation revocation on March 6, 1996, which apparently stemmed from two 1993 convictions. The facts are not fully developed or clear, but the facts relevant to this proceeding can be simply stated. Probation revocation hearings were held before an administrative law judge during October 1997 and February 1998, at which Mentek was represented by appointed counsel. On March 6, 1998, Mentek's probation was revoked. Mentek alleges that his counsel agreed to file an administrative appeal following the probation revocation. Under Wis. Admin. Code § HA 2.05(8) (Sept., 1995), an administrative appeal must be filed within ten working days of the decision. The deadline for Mentek's administrative appeal therefore expired on March 20,1998. In a letter dated March 25,1998, counsel informed Mentek that he would not be filing an administrative appeal. The letter further instructed Mentek that he could seek judicial review through a writ of certiorari.

¶ 4. Mentek's petition for a writ of certiorari, filed pro se on August 24, 1998, alleged numerous procedural violations before and during his revocation hearing. Mentek alleged, among other matters, violations of the statutory time frames and notification requirements set forth for probation revocation proceedings, violations of his right to counsel at the revocation hearings, and violations of court orders dismissing the revocation hearings and ordering Mentek's release.

¶ 5. The State made no substantive response to Mentek's legal or factual allegations. Instead, the State moved to dismiss the petition on the grounds that Mentek "failed to exhaust his administrative remedies as required by Wis. Stat. § 801.02(7)(b)." In a hearing on November 10, 1998, Judge Wagner-Malloy granted the State's motion to dismiss Mentek's petition under Wis. Stat. § 801.02(7)(b), over Mentek's objections. The court of appeals affirmed the dismissal, concluding that Mentek's failure to appeal administratively barred his petition under Wis. Stat. § 801.02(7)(b).

¶ 6. The State now concedes that Wis. Stat. § 801.02(7)(b) does not apply to Mentek's petition for a writ of certiorari. We agree with the State. Section 801.02(7) governs a court action commenced after an administrative decision by the Department of Corrections. Probation revocation hearings are held before the Division of Hearings and Appeals in the Department of Administration. Administrative appeals may be made to the administrator of that division. Judicial review of an administrative revocation of probation is by writ of certiorari and the division administrator of the Division of Hearings and Appeals in the Department of Administration is the respondent. The certiorari action in the present case is not a civil action against an officer, employee, or agent of the Department of Corrections and therefore Wis. Stat. § 801.02(7) does not apply.

¶ 7. The State contends, however, that even in the absence of a statutory bar, Mentek's petition should be dismissed for failure to exhaust administrative remedies before initiating judicial action. The regulations of the Division of Hearings and Appeals governing probation revocation proceedings establish a process to appeal the decision of the administrative law judge to the administrator of the division. The notes to the regulations state that the administrator's decision is the "final decision and is not subject to further administrative review."

¶ 8. The law is well established that "judicial relief will be denied until the parties have exhausted their administrative remedies; the parties must complete the administrative proceedings before they come to court." The rule requiring exhaustion of administrative remedies before initiating judicial proceedings is a doctrine of judicial restraint justified by good policy reasons. To prevent premature judicial incursions into agency activities, a state agency should be given the opportunity to correct its own error, thus applying its special competence and expertise to the matter. The exhaustion doctrine also promotes judicial efficiency by allowing conflicts to be resolved at the administrative level without resort to litigation. In addition, the process of agency review may provide a court with greater clarification of the issues if a matter is not resolved before the agency.

¶ 9. The law is also clear that a court "need not apply the exhaustion doctrine in a rigid, unbending way." A court may "assume jurisdiction of a case, notwithstanding a party's failure to exhaust administrative remedies, where the court finds that the reasons supporting the exhaustion rule are lacking." In exercising its discretion in deciding whether to apply the exhaustion doctrine, the court must look at the circumstances under which the doctrine arises and the reasons for the doctrine, and then balance the advantages and disadvantages of applying the doctrine in a particular case, including the litigant's need for judicial review, the agency's interest in precluding litigation, and the public's interest in the sound administration of justice.

¶ 10. Applying these principles, we examine whether the doctrine of exhaustion of administrative remedies should be applied in the present case.

¶ 11. First, we consider Mentek's need for judicial review. Mentek appeals the administrative revocation of his probation, which directly impacts his liberty interest. Mentek has been incarcerated under protest since 1997. The record suggests that he has made credible legal arguments in his pro se filings in the circuit court and the court of appeals, and the documents filed with Mentek's petition provide factual support for his allegations. We therefore conclude that Mentek's need for judicial review is substantial.

¶ 12. Second, we consider the agency's interest in precluding this litigation. The Division of Hearings and Appeals, like other administrative agencies, has substantial interest in exhaustion of administrative procedures. We described these policy interests above.

¶ 13. The facts of the present case, however, suggest that the Division of Hearings and Appeals' interest in precluding Mentek from litigation is weak. Mentek alleges that he was not permitted to argue various due process and other constitutional rights during the probation revocation proceedings and that he was instructed to pursue these issues on writ of certiorari. Thus the administrative proceedings, including the administrative appeal, apparently would not provide Mentek with a forum to state his objections.

¶ 14. Furthermore, the official communication from the Division of Hearings and Appeals dated March 6,1998, informing Mentek of his probation revocation and advising him of his right to appeal administratively and to seek judicial review through writ of certiorari, does not expressly state that the right to seek judicial review is contingent upon first filing an administrative appeal. If it is the Division's position that an administrative appeal is a condition precedent to judicial review, the Division has not so advised Mentek (or Mentek's counsel) in its written instruction form. When counsel wrote Mentek after the probation revocation decision and informed him of his rights, counsel apparently interpreted the revocation form as allowing Mentek the right to seek judicial review without filing an administrative appeal. Counsel advised Mentek that "failure to file an administrative appeal does not bar you from filing a Writ of Certiorari in the circuit court in which you were convicted."

¶ 15. Under these circumstances, the agency's interest in precluding litigation, which the State contends is strong, is not supported by the Division's communications with Mentek. To the contrary, the Division's interest in precluding litigation in the present case appears weak.

¶ 16. Third, we consider the public interest in the sound administration of justice. This court recently considered a constitutional challenge to administrative probation revocations, a practice that at the time was unique to Wisconsin. We upheld the constitutionality of this practice, concluding that affected individuals would receive meaningful judicial review through writ of certiorari. Despite nearly three years of legal efforts remarkable for a pro se litigant filing from behind bars, Mentek has yet to receive meaningful judicial review of any of his allegations. In contrast, the State has thus far avoided the merits of Mentek's challenges by relying on a statute that on its face is inapplicable to the facts of the present case. We conclude that the public interest in the sound administration of justice would suffer if we denied Mentek meaningful judicial review under the circumstances.

¶ 17. Considering the purposes of the doctrine of exhaustion of administrative remedies and balancing the three interests this court has identified, we conclude that the circuit court should exercise jurisdiction over Mentek's petition for a writ of certiorari, notwithstanding his failure to exhaust his administrative remedies. We therefore remand to the circuit court for consideration of Mentek's legal and factual allegations, including his request for substitution of judge. On remand, the circuit court should be mindful of the standards governing pro se litigants. See State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 279, 392 N.W.2d 453 (Ct. App. 1986) ("[W]e follow a liberal policy when judging the sufficiency of pro se pleadings by prisoners.").

By the Court. — The decision of the court of appeals is reversed and the cause remanded.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 18. (concurring). Although it is not necessary to the court's holding today, which is grounded narrowly on this court's conclusion that exhaustion of administrative remedies was not required in the present case, I would also conclude that Mentek had the right to assistance of counsel established by Wis. Admin. Code § HA 2.05(3)(f) (Jan., 1992) for the administrative appeal of the decision revoking his probation. When an individual has a right to counsel, counsel must be effective.

¶ 19. The court of appeals focused on the issue of effective assistance of counsel and determined that the right to counsel authorized in the regulations of the Division of Hearing and Appeals applies only to the probation revocation hearing, not to the administrative appeal. Absent a right to counsel on administrative appeal, the court of appeals concluded that Mentek could not argue that he had been denied effective assistance of counsel when his attorney failed to file his appeal. I disagree with this reasoning. I agree with the position set forth by Judge Richard Brown in his dissent in the court of appeals.

¶ 20. The Division's regulations set forth the rights of an individual who faces probation revocation. Wisconsin Admin. Code § HA 2.05, entitled "Revocation hearing," enumerates the client’s rights at the hearing as follows:

(3) CLIENT'S RIGHTS. The client's rights at the hearing include:
(a) The right to be present;
(b) The right to deny the allegation;
(c) The right to be heard and to present witnesses;
(d) The right to present documentary evidence;
(e) The right to question witnesses;
(f) The right to the assistance of counsel;
(g) The right to waive the hearing;
(h) The right to receive a written decision stating the reasons for it based upon the evidence presented; and
(i) The right to appeal the decision in accordance with sub. (8).

¶ 21. The State points out that this subsection specifies the client's rights "at the hearing." The State then argues that the words "at the hearing" should be read into each of the enumerated rights, including "the right to the assistance of counsel" set forth in provision (f). The State urges us to conclude that the regulations limit a probationer's right to counsel to the revocation hearing itself.

¶ 22. However, as Judge Brown's dissent explains, several of the rights enumerated in subsection (3) are not limited to the hearing itself. For example, (3)(g), the right to waive the hearing, is a pre-hearing right. Provisions (3)(h) and (3)(i), granting the rights to "receive a written decision stating the reasons for it based upon the evidence presented" and to "appeal the decision in accordance with sub. (8)," are post-hearing rights. The right to assistance of counsel expressed in (3)(f) seems applicable to before, during, and after a revocation hearing. Consequently, the dissent concluded that statutory interpretation does not require the words "at the hearing" to be read into each of the enumerated rights. I agree. It does not make sense to add the words "at the hearing" to (3)(f), (g), (h), or (i).

¶ 23. Furthermore, Wis. Admin. Code § HA 2.05 is entitled "Revocation hearing," but it governs both pre- and post-hearing matters. Thus,- the term "revocation hearing" as used in Wis. Admin. Code § HA 2.05 encompasses pre-hearing matters such as notice before the hearing and post-hearing matters such as appeal, as well as the hearing itself.

¶ 24. Additional assistance for our task of interpreting the scope of the right to counsel in Wis. Admin. Code § HA 2.05(3)(f) comes from subsection (8), governing appeal of the administrative law judge's decision. Subsection (8)(a) provides:

The client, the client's attorney, if any, or the department representative may appeal the administrative law judge's decision by filing a written appeal with arguments and supporting materials, if any, with the administrator within 10 days of the date of the administrative law judge's written decision (emphasis added).

The State suggests that the phrase "the client's attorney, if any" means that the regulations do not require the right to assistance of counsel on appeal. However, this interpretation is unconvincing, since the same phrase, "the client's attorney, if any," appears throughout Wis. Admin. Code § HA 2.05, including the subsections governing the revocation hearing itself, at which the client unquestionably has the right to the assistance of counsel. See, e.g., Wis. Admin. Code § HA 2.05(6)(g) and (6)(h).

¶ 25. Another aspect of subsection (8) that is helpful to our interpretive task is the fact that it establishes a time period of ten working days for filing a written administrative appeal "with arguments and supporting materials, if any." Judge Brown's dissent considered this short administrative appeal time frame relevant, reasoning that it would not make sense to hold that the regulations give an individual a right to counsel at the hearing, but that the client is on his or her own for an appeal, which must be filed within ten days. As a result, the dissent concluded that the right to the assistance of counsel set forth in Wis. Admin. Code § HA 2.05(3)(f) extends to the administrative appeal.

¶ 26. The most reasonable interpretation of Wis. Admin. Code § HA 2.05(3)(f) is that the probationer has the right to the assistance of counsel for filing an administrative appeal. This is the interpretation I would adopt.

¶ 27. For the reasons set forth, I write separately.

¶ 28. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

       All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       On appeal to the court of appeals, and before this court, Mentek argued that his due process right to effective assistance of counsel was violated. Mentek asserts that Wis. Admin. Code § HA 2.05(3)(f) (Jan., 1992) grants him the right to counsel on administrative appeal. In State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 253, 548 N.W.2d 45 (1996), the court determined that "[wlhere a statutory right to counsel exists, we have held that the right includes the right to effective counsel" (citation omitted).
      Mentek further asserts that he requested that counsel appointed for the probation revocation hearing file an administrative appeal; that his counsel indicated he would file the appeal; and that after the time to file the appeal expired his counsel advised that he had not filed an appeal because an appeal was meritless and that Mentek could file a petition for writ of certiorari.
      The court of appeals concluded that no right to counsel exists on administrative appeal, that a problem arises when an attorney promises to file an appeal and then fails to do so, and that it did not have the authority to fashion a remedy.
      Because we conclude that the cause is remanded to the circuit court for consideration of the petition for writ of certio-rari, we need not and do not address the issue of the right to assistance of counsel. Mentek’s motion to supplement the record with a letter from counsel stating counsel's intent to file an appeal is denied.

       Mentek apparently first filed a petition in forma pauperis in late July or early August 1998, which was returned to him because the circuit court denied his in forma pauperis status.

       There is no explanation in the record as to why the petition was before Judge Wagner-Malloy. The court of appeals described the situation as confusing. Mentek had filed a request for a substitution of judge on August 26,1998, and according to the record, the case was assigned to Judge S. Michael Wilk.
      Wisconsin Stat. § 801.58(2X1995-96) provides that when a request is properly submitted, "the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03." In discussing this confusing record, the court of appeals concluded that the substitution claim is moot because Mentek did not have a viable ineffective assistance of counsel claim as a matter of law. Because we remand the cause to the circuit court, the issue of what judge should be assigned to this case on remand is not moot.

       Wisconsin Stat. § 801.02(7)(b) (1995 — 96), provided:
      No prisoner. . .may commence a civil action or special proceeding against an officer, employe or agent of the department of corrections in his or her official capacity or as an individual for acts or omissions committed while carrying out his or her duties as an officer, employe or agent or while acting within the scope of his or her office, employment or agency until the person has exhausted any administrative remedies that the department of corrections has promulgated by rule (emphasis added).
      This statute was subsequently amended by 1997 Act 133, §§ 11,44(1).

       Wis. Admin. Code § HA 2.05(8) and (9) (Sept., 1995).

       Wis. Admin. Code § HA 2.05, note to subsection (8).

         Nodell Inv. Corp. v. Glendale, 78 Wis. 2d 416, 424, 254 N.W.2d 310 (1977).

         Kramer v. Horton, 128 Wis. 2d 404, 418, 383 N.W.2d 54 (1986), cert. denied, 479 U.S. 918, overruled on other grounds by Casteel v. Vaade, 167 Wis. 2d 1, 481 N.W.2d 476 (1992).

        County of Sauk v. Trager, 118 Wis. 2d 204, 214, 346 N.W.2d 756 (1984).

        Nodell Inv. Corp., 78 Wis. 2d at 425—26. See also Trager, 118 Wis. 2d at 210 (citing Nodell Inv. Corp., 78 Wis. 2d at 424-26).

        Trager, 118 Wis. 2d at 210, 214.

       This allegation appears in an affidavit from Jerold Brei-tenbach, Mentek's attorney during the initial revocation proceedings, submitted as part of Mentek's petition for a writ of certiorari. The State has not challenged this allegation.

       See State v. Horn, 226 Wis. 2d 637, 652, 594 N.W.2d 772 (1999).

       See Horn, 226 Wis. 2d at 652.

        See State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 252-53, 548 N.W.2d 45 (1996).

        State ex rel. Mentek v. Schwartz, 2000 WI App 96, ¶ 25, 235 Wis. 2d 143, 612 N.W.2d 746.

       Wis. Admin. Code § HA 2.05(1) (Jan., 1992).

       Wis. Admin. Code § HA 2.05(8) (Sept., 1995).

       Wis. Admin. Code § HA 2.05(8)(a).

       At oral argument, the attorney for the State suggested that this ten-day deadline is not enforced in a Draconian manner, stating:
      If somebody is concerned about a deadline, a pro se or probably even an attorney, they say just file something. Just get it in on time and then we'll give you a certain amount of time to supplement it. So it's not like they always have to have everything in within the ten-day working period.
      While I appreciate the Division's efforts to provide flexibility, information regarding the Division's informal practices is not relevant to our interpretation of the regulation. The regulation sets forth an unambiguous ten-day time frame for an appeal alongside a right to the assistance of counsel that is ambiguous. Therefore, we consider this ten-day time frame relevant to interpreting the right to counsel in Wis. Admin. Code 2.05(3)(f).

       This analysis is consistent with the analysis used to support an individual's right to counsel on filing a petition for review in this court. See Schmelzer, 201 Wis. 2d at 252-53, in which this court concluded that an accused's right to counsel extends through the filing of a petition for review, and, if the petition is accepted, includes representation through the subsequent proceedings in this court.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against David P. Diamon, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. David P. Diamon, Respondent.
    Supreme Court

      No. 00-0821-D.

      Filed April 4, 2001.

    2001 WI 28
    (Also reported in 624 N.W.2d 147.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that the license of Attorney David P. Diamon to practice law in Wisconsin be suspended for five months for professional misconduct. That misconduct consists of failing to perform legal work for which fees were paid, failing to refund retainers when requested to do so by clients, and failing to cooperate with the Board of Attorneys Professional Responsibility (Board). In addition to the license suspension, the referee recommended that Attorney Diamon pay restitution, with interest, to the clients and that he pay the costs of this proceeding.

¶ 2. We determine that the seriousness of Attorney Diamon's professional misconduct warrants a five-month suspension of his license to practice law in Wisconsin.

¶ 3. Attorney Diamon was admitted to the practice of law in Wisconsin in 1997. His license was suspended on November 1, 1999, for non-payment of bar dues. Attorney Diamon currently resides in Galt, California.

¶ 4. On March 22, 2000, the Board filed a complaint and order to answer. The complaint alleged that Attorney Diamon engaged in professional misconduct with respect to two client matters. The first matter involved a couple who hired Attorney Diamon to perform estate planning legal services and create a limited liability company (LLC) on their behalf. The clients paid Attorney Diamon $1400 for the legal work to be performed on the estate plan and $500 for the creation of the LLC. For approximately four weeks after their initial meeting with Attorney Diamon, the clients made unsuccessful efforts to contact him. The clients subsequently learned that Attorney Diamon had closed his Madison law office and relocated to California. By letter dated November 2, 1998, the clients demanded return of the $1900 they had paid for the estate planning work and the formation of the LLC. Attorney Diamon never completed the legal work for the clients nor did he refund the monies they had paid him.

¶ 5. The second allegation of misconduct detailed in the complaint stated that during May of 1998 another couple met with Attorney Diamon and retained him for the purpose of drafting trust documents for the benefit of their minor children. This couple paid Attorney Diamon a fee of $1500. Although the clients attempted to contact Attorney Diamon in the summer and fall of 1998 he did not return their calls. The clients later found that Attorney Diamon's telephone had been disconnected. Attorney Diamon never informed the clients that he had closed his law practice in Madison and relocated to California. Attorney Diamon never drafted the trust documents for the clients nor did he refund their retainer.

¶ 6. By letters dated August 13 and August 25, 1999, an attorney assigned to investigate the matter by the District 9 Professional Responsibility Committee (PRC) wrote to Attorney Diamon asking for additional information and requesting that he contact her office to schedule a telephone conference. By letter dated August 30, 1999, Attorney Diamon requested more time to respond. The PRC investigator gave him until September 24, 1999, to provide a response and asked that he provide a telephone number where he could be reached and available dates for a telephone conference.

¶ 7. By letter dated September 24, 1999, Attorney Diamon advised the PRC that he would be hiring an attorney to assist him with the matter. On October 18, 1999, he wrote another letter saying he would not be hiring an attorney. On October 31, 1999, Attorney Diamon provided a response to the PRC which failed to address some of the questions raised by the PRC investigator. He never provided a telephone number where he could be reached for purposes of an interview.

¶ 8. A scheduling conference was held on June 13, 2000, in which both Attorney Diamon and the Board's counsel participated. A two-day hearing was set for September 11 and 12, 2000. On September 9, 2000, Attorney Diamon sent an e-mail message to the Board's counsel indicating that he would not be returning from California for the hearing. He requested a continuance of the hearing, which the referee denied. The referee offered to allow Attorney Diamon to appear at the hearing by telephone. The hearing was held as scheduled on September 11, 2000. The referee, John N. Schweitzer, telephoned Attorney Diamon and received no answer. The hearing proceeded, and the Board's counsel presented witness testimony from two of the clients, along with documentary evidence. The evidentiary portion of the hearing was concluded on September 11, 2000. The record was held open to allow Attorney Diamon to read the transcript and respond to Board counsel's argument and recommendation for discipline. Attorney Diamon filed his argument on October 17, 2000. Board counsel filed a letter reply on October 20, 2000. The record of the proceeding was closed on October 25, 2000.

¶ 9. The referee concluded that Attorney Diamon was in default in the disciplinary proceeding under SCR 22.23(2)and Wis. Stat. § 806.02(5),for failing to appear at the scheduled hearing.

¶ 10. The referee concluded that by failing to seek additional information from the first clients that was required in order to conclude his legal work for them and by failing to do any work in developing the trust for the second clients, Attorney Diamon violated SCR 20:1.3.The referee also concluded that by failing to communicate with his clients, by failing to notify them that he was closing his office and moving out of state, and by failing to provide his clients with a forwarding address, Attorney Diamon violated SCR 20:1.4(a).The referee further found that by effectively terminating his representation of his clients without performing any services and by failing to refund the clients' retainer fees, Attorney Diamon violated SCR 20:1.16(d).The referee also concluded that by failing to respond to the PRC's inquiries, by failing to provide a timely response to those inquiries, and by failing to provide a means for being contacted by telephone by the PRC for interview purposes as requested, Attorney Diamon violated SCR 21.03(4).

¶ 11. The referee concluded that a five-month license suspension was appropriate. Although the referee found that Attorney Diamon's professional violations were troublesome, he noted that the abandonment of Attorney Diamon's practice was not accompanied by any aggravating factors such as a failure to file papers to preserve client rights in ongoing cases. The referee also recommended that Attorney Diamon be ordered to pay restitution to the clients, with interest at 5%, and he recommended that payment of restitution be treated as a condition of the reinstatement of Attorney Diamon's license.

¶ 12. We adopt the referee's findings of fact and conclusions of law and determine that to be the appropriate discipline for Attorney Diamon's professional misconduct. Attorney Diamon's failure to perform legal work for which he was paid, his failure to refund retainer fees to his clients, and his failure to cooperate with the Board's investigation are serious failings warranting a suspension of his license. A five-month suspension of his license to practice law is appropriate discipline for this professional misconduct.

¶ 13. It Is Ordered that the license of David P. Diamon to practice law in Wisconsin is suspended for a period of five months, effective May 8, 2001.

¶ 14. It Is Further Ordered that David P. Diamon comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 15. It Is Further Ordered that David P. Diamon refund $1900 plus interest at the rate of 5% per year from July 14, 1998, to the first clients, and that he refund $1500 plus interest at the rate of 5% per year from May 15, 1998, to the second clients. If these refunds are not made within 60 days from the date of this order, the license of David P. Diamon to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 16. It Is Further Ordered that within 60 days of the date of this order David P. Diamon pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of David P. Diamon to practice law in Wisconsin shall remain suspended until further order of the court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation and the supreme court rules applicable to the lawyer regulation system were also revised. Since the conduct underlying this case arose prior to October 1, 2000, the body will be referred to as "the Board" and all references to supreme court rules will be to those in effect prior to October 1-, 2000.

       Former SCR 22.23(2) provided:
      (2) The rules of civil procedure apply in disciplinary proceedings except as otherwise provided in the rules.

       Wisconsin Stat. § 806.02(5) provides:
      A default judgment may be rendered against any defendant who has appeared in the action but who fails to appear at trial. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof.

       SCR 20:1.3 provides:
      Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.

       SCR 20:1.4(a) provides:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. •

       Former SCR 21.03(4) provided:
      (4) Every attorney shall cooperate with the hoard and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator.