Beecher v. Labor & Industry Review Commission, 2004 WI 88, 273 Wis. 2d 136

Summary

The Wisconsin Supreme Court held that a claimant seeking permanent total disability benefits under the odd-lot doctrine is not required to present evidence of a reasonable post-injury job search as part of the prima facie case. Once the claimant shows that injury, age, education, capacity, and training make continuing gainful employment unavailable, the burden shifts to the employer to demonstrate employability and the existence of suitable jobs. The court affirmed the court of appeals' reversal of LIRC's decision and rejected LIRC's expansion of the doctrine based on an uncited portion of the Larson treatise.

Holdings

1. A claimant is not required to present evidence of a post-injury job search as part of a prima facie case of odd-lot unemployability, so long as the claimant shows that, because of the industrial injury and factors such as age, education, training, and capacity, the claimant cannot secure continuing and gainful employment.
2. Once the claimant establishes a prima facie odd-lot case, the employer must rebut it by showing that the claimant is employable and that suitable work is regularly and continuously available.
3. In Wisconsin, a prima facie case in this context is generally evidence sufficient to shift the burden of producing or persuading on the relevant issue, rather than merely evidence sufficient to survive a directed verdict.
4. LIRC legally erred by treating the adequacy of Beecher's job search as part of his prima facie odd-lot burden; the agency's decision must be set aside and the matter remanded for rebuttal and further proceedings consistent with the opinion.

Questions Presented

1. Whether a claimant seeking permanent total disability benefits under Wisconsin's odd-lot doctrine must present evidence of a reasonable post-injury job search as part of the prima facie case.
2. Whether Wis. Stat. § 102.17(7)(a) or DWD § 80.34 requires modification of the Balczewski odd-lot burden-shifting framework.
3. Whether LIRC's conclusion that Beecher failed to establish a prima facie odd-lot case because of an inadequate job search was legally proper.
4. What burden shifts to the employer once a claimant establishes a prima facie odd-lot case.

Disposition

affirmed