Wisconsin Court of Appeals recommends publishing recent CWK case success

Lisa Kinney successfully defended Ashley Furniture and Gallagher Bassett, as affirmed by the Wisconsin Court of Appeals (for Publication) in the claim brought by Janet Mueller.


Mueller argued that the LIRC erred by concluding that Mueller’s voluntary retirement from her employment precluded her from establishing that she suffered an actual wage loss, and that she therefore was not entitled to receive disability benefits under WIS.STAT.§102.43 (2017-18).   In the alternative, Mueller argues that even if her voluntary retirement initially prevented her from showing an actual wage loss, the Commission erred by concluding that she failed to show she suffered an actual wage loss when she tried—and eventually succeeded—to re-enter the labor market.


The Wisconsin Court of Appeals concluded that under WIS.STAT.§102.43, an employee must show that he or she sustained an actual wage loss attributable to his or her injury in order to be entitled to temporary disability benefits. Applying that standard, the Court of Appeals determined that the Commission did not err in dismissing Mueller’s claim because, as the Commission found, Mueller voluntarily retired for reasons entirely unrelated to her injury, and her subsequent attempts to re-enter the labor market were not impaired by her work-related injury. Therefore, any wage loss Mueller suffered is solely attributable to her own choices, and not to her work-related injury.