Category: Courts of Appeals

1st District Court of Appeals Decision: Harley-Davidson v. LIRC (Worker’s Compensation)

Posted on by Hamilton

In Harley-Davidson v. LIRC (2017AP2284), the Court of Appeals District I upheld a Labor and Industry Review Commission (LIRC) decision that a Harley-Davidson employee sustained 85 percent hearing loss from noise exposure during his employment, despite conflicting medical opinions.

After retiring from Harley-Davidson’s power train assembly division, Robert Schulfer underwent several hearing tests indicating he had severe hearing loss. When Harley-Davidson denied his claim for hearing aids reimbursement, Harley-Davidson requested he undergo another test by their appointed doctor. That doctor indicated Schulfer might have been faking his hearing loss, based on results conflicting with other tests.

LIRC appointed a third independent physician, whose tests were inconsistent. A pure tone audiometry test suggested severer hearing loss than a speech reception threshold test. Citing the unreliability of the patient, the physician used the speech reception threshold test to calculate Schulfer had 33 percent hearing loss.

Despite the unreliability of the physician’s pure tone audiometry test, LIRC used the pure tone test to determine that Schulfer had 85 percent hearing loss as a result of working at Harley-Davidson. Department of Workforce Development code requires pure tone tests for determining hearing impairment.

Harley-Davidson appealed on the grounds that the physician himself stated the pure tone test was unreliable. However, the appeals court found that LIRC resolved the inconsistencies among the tests and there was substantial and credible evidence in all three physicians’ test results supporting LIRC’s determination.

3rd District Court of Appeals Decision: Halderson v. Northern States Power Co. (Stray Voltage)

Posted on by Hamilton

In Halderson v. Northern States Power Co. (2017AP2522), the Court of Appeals District III upheld that Northern States Power (NSP) was negligent but not liable for treble damages for stray voltage on the Halderson family’s dairy farm.

The Halderson’s filed suit against NSP alleging stray voltage caused injury to their dairy herd. The Haldseron’s claimed negligence and damages under Wis. Stat. § 196.64(1), which requires public utilities to pay treble damages for negligent actions performed “willfully, wantonly or recklessly.”

The appeals court upheld the jury’s negligence verdict against NSP because NSP did not perform basic tests specified by the Public Service Commission (PSC) nor additional tests after the initial ones failed to reveal stray voltage. Furthermore, the court found NSP negligent because it did not conduct measurements in proper locations and did not initially inform the Haldersons of their right to request neutral isolation to mitigate the effects of the stray voltage on their cows.

NSP argued that the Halderson’s negligence claim was insufficient because it relied on testing beyond PSC mandates. However, the appeals court rejected this argument because Wis. Stat. § 196.857(1g)(b) does not prohibit public utilities from using testing procedures beyond those standardized by PSC, and PSC’s stray voltage Docket 106 mandates that utilities should pursue additional tests when animals exhibit stray voltage symptoms.

Although the court ruled NSP negligent, there was no clear and convincing evidence that NSP acted “willfully, wantonly or recklessly” as required for treble damages. The court upheld the circuit court judge’s directed verdict reversing the jury’s $4.5 million treble damages award to the Haldersons under Wis. Stat. § 196.64(1).

On appeal, NSP also raised objections to the jury instructions on finding negligence based on violation of a safety statute. NSP said the instructions misinterpreted PSC dockets as safety statutes, “cherry-picked” only docket provisions favorable to the Haldersons, and did not accurately reflect the dockets’ mandates. The appeals court held that NSP forfeited its right to object to the jury instructions during the circuit court trial.

The appeals court also denied NSP’s request for a new trial based on the fact that the Halderson’s attorney failed to disclose a familial relationship to one of the jurors.