The Department of Industry, Labor and Human Relations is not required to make specific findings as to a defense to a worker's claim, but it is better practice to either make findings or state why none were made. Universal Foundry Co. v. DILHR, 82 Wis. 2d 479
, 263 N.W.2d 172
Commission guidelines, formulated as internal standards of credibility in worker's compensation cases, are irrelevant to a court's review of the commission's findings. E.F. Brewer Co. v. DILHR, 82 Wis. 2d 634
, 264 N.W.2d 222
A general finding by the Department of Industry, Labor and Human Relations implies all facts necessary to support it. A finding not explicitly made may be inferred from other properly made findings and from findings that were not made if there is evidence that would support those findings. Valadzic v. Briggs & Stratton Corp., 92 Wis. 2d 583
, 286 N.W.2d 540
An employer was penalized for denying a claim that was not “fairly debatable" under sub. (1) (bp). Kimberly-Clark Corp. v. LIRC, 138 Wis. 2d 58
, 405 N.W.2d 684
(Ct. App. 1987).
Sub. (4) (c) grants the Labor and Industry Review Commission exclusive authority to set aside findings due to newly discovered evidence. The trial court does not possess that authority. Hopp v. LIRC, 146 Wis. 2d 172
, 430 N.W.2d 359
(Ct. App. 1988).
To show bad faith under sub. (1) (bp), a claimant must show that the employer acted without a reasonable basis for the delay and with knowledge or a reckless disregard of the lack of reasonable basis for the delay. North American Mechanical, Inc. v. LIRC, 157 Wis. 2d 801
, 460 N.W.2d 835
(Ct. App. 1990).
After the Labor and Industry Review Commission makes a final order and the review period has passed, the commission's decision is final for all purposes. Kwaterski v. LIRC, 158 Wis. 2d 112
, 462 N.W.2d 534
(Ct. App. 1990).
Sub. (3) does not authorize the Labor and Industry Review Commission to take administrative notice of any fact; review is limited to the record before the hearing examiner. Amsoil, Inc. v. LIRC, 173 Wis. 2d 154
, 496 N.W.2d 150
(Ct. App. 1992).
The Labor and Industry Review Commission may not reject a medical opinion absent something in the record to support the rejection; countervailing expert testimony is not required in all cases. Leist v. LIRC, 183 Wis. 2d 450
, 515 N.W.2d 268
Issuance of a default order under sub. (1) (a) is discretionary. Rules of civil procedure do not apply to administrative proceedings. Nothing in the law suggests a default order must be issued in the absence of excusable neglect. Verhaagh v. LIRC, 204 Wis. 2d 154
, 554 N.W.2d 678
(Ct. App. 1996), 96-0470
The Labor and Industry Review Commission may not rule on and consider issues on appeal that were not litigated and may not consider evidence not considered by the administrative law judge unless the parties are allowed to offer rebuttal evidence. Wright v. LIRC, 210 Wis. 2d 289
, 565 N.W.2d 221
(Ct. App. 1997), 96-1024
The Labor and Industry Review Commission's authority under s. 102.17 (1) (a) to control its calendar and manage its internal affairs necessarily implies the power to deny an applicant's motion to withdraw an application for hearing. An appellant's failure to appear at a hearing after a motion to withdraw the application was denied was grounds for entry of a default judgment under sub. (1) (a). Baldwin v. LIRC, 228 Wis. 2d 601
, 599 N.W.2d 8
(Ct. App. 1999), 98-3090
Under s. 102.23 (1) (a), judicial review is available only from an order or award granting or denying compensation. Judicial review by common law certiorari was not available for a claim that the Labor and Industry Review Commission failed to act within the statutory time limitations under sub. (4), which would be subject to judicial review of any subsequent order or award granting or denying compensation in that case. Vidal v. LIRC, 2002 WI 72
, 253 Wis. 2d 426
, 645 N.W.2d 870
To demonstrate bad faith under sub. (1) (bp), a claimant must show the absence of a reasonable basis for denying benefits and the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. Brown v. LIRC, 2003 WI 142
, 267 Wis. 2d 31
, 671 N.W.2d 279
Because sub. (1) (bp) specifically allows for the imposition of bad faith penalties on an employer for failure to pay benefits, and because s. 102.23 (5) specifically directs the employer to pay benefits pending an appeal when the only issue is who will pay benefits, an employer may be subject to bad faith penalties under sub. (1) (bp), independent from its insurer, when it fails to pay benefits in accordance with s. 102.23 (5). Bosco v. LIRC, 2004 WI 77
, 272 Wis. 2d 586
, 681 N.W.2d 157
Sub. (1) (d) does not prohibit determinations in excess of the highest medical assessment in evidence, but rather creates a presumption of reasonableness for awards that fall within the prescribed range. The statute does not state that an award outside of the prescribed range is unreasonable and does not prohibit the Department of Workforce Development from setting minimum loss of use percentages by administrative rule. DaimlerChrysler v. LIRC, 2007 WI 15
, 299 Wis. 2d 1
, 727 N.W.2d 311
Sub. (1) (bp) does not govern the conduct of the Department of Workforce Development (DWD) or its agent and does not impose any penalty on DWD or its agent for bad faith conduct in administering the uninsured employers fund. Sub. (1) (bp) constitutes the exclusive remedy for the bad faith conduct of an employer or an insurance carrier. Because sub. (1) (bp) does not apply to DWD's agent, it does not provide an exclusive remedy for the agent's bad faith. Moreover, s. 102.81 (1) (a) exempts DWD and its agent from paying an employee the statutory penalties and interest imposed on an employer or an insurance carrier for their misdeeds, but nothing in s. 102.81 (1) (a) exempts DWD or its agent from liability for its bad faith conduct in processing claims. Aslakson v. Gallagher Bassett Services, Inc., 2007 WI 39
, 300 Wis. 2d 92
, 729 N.W.2d 712
Because the parties explicitly stated the only claim against the employer was for accidental injury, the employer could not “know the charges or claims" against it included an occupational disease claim. It never had an opportunity to be heard on “the probative force of the evidence adduced by both sides" as applied to the occupational disease claim, or on the law applicable to the occupational disease claim, either during the hearing or in its brief to the Labor and Industry Review Commission. As such, the employer was denied both due process and a “fair hearing" under sub. (1) (a). Waste Management Inc. v. LIRC, 2008 WI App 50
, 308 Wis. 2d 763
, 747 N.W.2d 782
Once a permanent partial disability award is made, the worker's compensation statutes provide only limited provision for reopening. The statutes do not provide for the reopening of a final award two years after it is rendered in the event the employer rehires the employee. Schreiber Foods, Inc. v. LIRC, 2009 WI App 40
, 316 Wis. 2d 516
, 765 N.W.2d 850
Case law appears to define an order “awarding or denying compensation" in sub. (3) synonymously with an order reaching the merits of the applicant's claim. Although the administrative decisions in this case contemplated the possibility of future action by the claimant, the dismissal was not procedural or rooted in standing doctrines like ripeness but based on a finding that the claimant presented insufficient evidence to substantiate it and did reach the merits. LaBeree v. LIRC, 2010 WI App 148
, 330 Wis. 2d 101
, 793 N.W.2d 77
The automatic-stay provisions of the federal bankruptcy code froze an employer's obligation to pay claims, including worker's compensation, that were not due at the time of the employer's bankruptcy filing. Accordingly, obligations that became due after filing were not in default and no late-payment penalty could be assessed under sub. (1) (bp). Grede Foundries, Inc. v. LIRC, 2012 WI App 86
, 343 Wis. 2d 517
, 819 N.W.2d 850
Alien dependents; payments through consular officers.
In case a deceased employee, for whose injury or death compensation is payable, leaves surviving alien dependents residing outside of the United States, the duly accredited consular officer of the country of which such dependents are citizens or such officer's designated representative residing within the state shall, except as otherwise determined by the department, be the sole representative of the deceased employee and dependents in all matters pertaining to their claims for compensation. The receipt by such officer or agent of compensation funds and the distribution thereof shall be made only upon order of the department, and payment to such officer or agent pursuant to any such order shall be a full discharge of the benefits or compensation. Such consular officer or such officer's representative shall furnish, if required by the department, a bond to be approved by it, conditioned upon the proper application of all moneys received by such person. Before such bond is discharged, such consular officer or representative shall file with the department a verified account of the items of his or her receipts and disbursements of such compensation. Such consular officer or representative shall make interim reports to the department as it may require.
History: 1977 c. 29
Employees confined in institutions; payment of benefits.
In case an employee is adjudged mentally ill or incompetent or convicted of a felony, and is confined in a public institution and has wholly dependent upon the employee for support a person whose dependency is determined as if the employee were deceased, compensation payable during the period of the employee's confinement may be paid to the employee and the employee's dependents in such manner, for such time, and in such amount as the department or division by order provides.
History: 1993 a. 492
; 2015 a. 55
Judgment on award.
If any party presents a certified copy of the award to the circuit court for any county, the court shall, without notice, render judgment in accordance with the award. A judgment rendered under this section shall have the same effect as though rendered in an action tried and determined by the court, and shall, with like effect, be entered in the judgment and lien docket.
History: 1995 a. 224
; 2001 a. 37
“Award" under this section means an award that has become final under s. 102.18 (3). Warren v. Link Farms, Inc., 123 Wis. 2d 485
, 368 N.W.2d 688
(Ct. App. 1985).
Payment of awards by local governmental units.
When an award is made under this chapter or s. 66.191
, 1981 stats., against any local governmental unit, the person in whose favor the award is made shall file a certified copy of the award with the clerk of the local governmental unit. Unless an appeal is taken, within 20 days after that filing, the clerk shall draw an order on the treasurer of the local governmental unit for the payment of the award. If upon appeal the award is affirmed in whole or in part, the clerk shall draw an order for payment of the award within 10 days after a certified copy of the judgment affirming the award is filed with that clerk. If the award or judgment provides for more than one payment, the clerk shall draw orders for payment as the payments become due. No statute relating to the filing of claims against, or the auditing, allowing, and payment of claims by, a local governmental unit applies to the payment of an award or judgment under this section.
History: 1983 a. 191
; 2015 a. 55
Penalty for delayed payments; interest. 102.22(1)(1)
If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employee for more than 30 days after the date on which the employee leaves work as a result of an injury and if the amount due is $500 or more, the payments as to which the delay is found shall be increased by 10 percent. If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employee for more than 14 days after the date on which the employee leaves work as a result of an injury, the payments as to which the delay is found may be increased by 10 percent. If the employer or his or her insurer inexcusably delays for any length of time in making any other payment that is due an injured employee, the payments as to which the delay is found may be increased by 10 percent. If the delay is chargeable to the employer and not to the insurer, s. 102.62
applies and the relative liability of the parties shall be fixed and discharged as provided in that section. The department or the division may also order the employer or insurance carrier to reimburse the employee for any finance charges, collection charges, or interest that the employee paid as a result of the inexcusable delay by the employer or insurance carrier.
If any sum that the department or the division orders to be paid is not paid when due, that sum shall bear interest at the rate of 10 percent per year. The state is liable for interest on awards issued against it under this chapter. The department or the division has jurisdiction to issue an award for payment of interest under this subsection at any time within one year after the date of its order or, if the order is appealed, within one year after final court determination. Interest awarded under this subsection becomes due from the date the examiner's order becomes final or from the date of a decision by the commission, whichever is later.
If upon petition for review the commission affirms an examiner's order, interest at the rate of 7 percent per year on the amount ordered by the examiner shall be due for the period beginning on the 21st day after the date of the examiner's order and ending on the date paid under the commission's decision. If upon petition for judicial review under s. 102.23
the court affirms the commission's decision, interest at the rate of 7 percent per year on the amount ordered by the examiner shall be due up to the date of the commission's decision, and thereafter interest shall be computed under sub. (2)
The Department of Industry, Labor and Human Relations can assess the penalty for inexcusable delay in making payments prior to the entry of an order. The question of inexcusable delay is one of law and the courts are not bound by the department's finding as to it. Milwaukee County v. DILHR, 48 Wis. 2d 392
, 180 N.W.2d 513
The penalty under sub. (1) does not bar an action for bad faith for failure to pay a claim. Coleman v. American Universal Insurance Co., 86 Wis. 2d 615
, 273 N.W.2d 220
Judicial review. 102.23(1)(a)1.1.
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 the order or award or not, is subject to review only as provided in this section and not under ch. 227
or s. 801.02
. The commission shall identify in the order or award the persons that must be made parties to an action for review of the order or award.
Within 30 days after the date of an order or award made by the commission, any party aggrieved by the order or award may commence an action in circuit court for review of the order or award by serving a complaint as provided in par. (b)
and filing the summons and complaint with the clerk of the circuit court. The summons and complaint shall name the party commencing the action as the plaintiff and shall name as defendants the commission and all persons identified by the commission under subd. 1.
If the circuit court determines that any other person is necessary for the proper resolution of the action, the circuit court may join that person as a party to the action, unless joinder of the person would unduly delay the resolution of the action. If the circuit court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any finding or order, the circuit court may extend the time within which an action may be commenced by an additional 30 days.
The proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is a state agency, the proceedings shall be in the circuit court of the county where the defendant resides. The proceedings may be brought in any circuit court if all parties stipulate and that court agrees.
In such an action a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.
The commission shall serve its answer to the complaint within 20 days after the service of the complaint. Except as provided in par. (cm)
, any other defendant may serve an answer to the complaint within 20 days after the service of the complaint, which answer may, by way of counterclaim or cross complaint, ask for the review of the order or award referred to in the complaint, with the same effect as if the defendant had commenced a separate action for the review of the order or award.
If a defendant in an action brought under par. (a)
is an insurance company, the insurance company may serve an answer to the complaint within 45 days after the service of the complaint.
The commission shall make return to the court of all documents and papers on file in the matter, all testimony that has been taken, and the commission's order, findings, and award. Such return of the commission when filed in the office of the clerk of the circuit court shall, with the papers specified in s. 809.15
, constitute a judgment roll in the action; and it shall not be necessary to have a transcript approved. The action may thereupon be brought on for hearing before the court upon the record by any party on 10 days' notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another judge.
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:
That the commission acted without or in excess of its powers.
That the findings of fact by the commission do not support the order or award.
Upon the trial of an action for review of an order or award the court shall disregard any irregularity or error of the commission, the department, or the division unless it is made to affirmatively appear that the plaintiff was damaged by that irregularity or error.
The record in any case shall be transmitted to the department or the division within 5 days after expiration of the time for appeal from the order or judgment of the court, unless an appeal is taken from that order or judgment.
Whenever an award is made against the state the attorney general may bring an action for review thereof in the same manner and upon the same grounds as are provided by sub. (1)
When an action for review involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies, a party that has been ordered by the department, the division, the commission, or a court to pay compensation is not relieved from paying compensation as ordered.
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.
Judicial Council Committee's Note, 1976: The procedure for initiating a petition for judicial review under ch. 102 is governed by the provisions of s. 102.23 rather than the provisions for initiating a civil action under s. 801.02. [Re Order effective Jan. 1, 1977]
The fact that a party appealing from a Department of Industry, Labor and Human Relations (DILHR) order as to unemployment compensation labeled his petition “under s. 227.15" [now s. 227.52], is immaterial since the circuit court had subject matter jurisdiction. An answer by DILHR that s. 227.15 [now s. 227.52] gave no jurisdiction amounted to an appearance, and DILHR could not later claim that the court had no personal jurisdiction because the appellant had not served a summons and complaint. Lees v. DILHR, 49 Wis. 2d 491
, 182 N.W.2d 245
A finding of fact, whether ultimate or evidentiary, is still in its essential nature a fact, whereas a conclusion of law accepts those facts, and by judicial reasoning results from the application of rules or concepts of law to those facts whether undisputed or not. Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175
, 212 N.W.2d 97
A challenge to the constitutionality of sub. (1) was not sustained since it was manifest from the statute that the legislature intended to have the Department of Industry, Labor and Human Relations be the real party in interest and not a mere nominal party. Hunter v. DILHR, 64 Wis. 2d 97
, 218 N.W.2d 314
When the claimant timely appealed an adverse worker's compensation decision in good faith, but erroneously captioned the appeal, the trial court abused its discretion by dismissing the action. Cruz v. DILHR, 81 Wis. 2d 442
, 260 N.W.2d 692
An employer whose unemployment compensation account is not affected by the Labor and Industry Review Commission's determination has no standing to seek judicial review. Cornwell Personnel Associates, Ltd. v. DILHR, 92 Wis. 2d 53
, 284 N.W.2d 706
(Ct. App. 1979).
An agency's mixed conclusions of law and findings of fact may be analyzed by using two methods: 1) the analytical method of separating law from fact; or 2) the practical or policy method that avoids law and fact labels and searches for a rational basis for the agency's decision. United Way of Greater Milwaukee, Inc. v. DILHR, 105 Wis. 2d 447
, 313 N.W.2d 858
(Ct. App. 1981).
A failure to properly serve the Labor and Industry Review Commission pursuant to sub. (1) (b) results in a jurisdictional defect rather than a mere technical error. Gomez v. LIRC, 153 Wis. 2d 686
, 451 N.W.2d 475
(Ct. App. 1989).
Discretionary reversal is not applicable to judicial review of Labor and Industry Review Commission orders under this chapter. There is no power to reopen a matter that has been fully determined under this chapter. Kwaterski v. LIRC, 158 Wis. 2d 112
, 462 N.W.2d 534
(Ct. App. 1990).
A Labor and Industry Review Commission decision is to be upheld unless it directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise without a rational basis. Wisconsin Electric Power Co. v. LIRC, 226 Wis. 2d 778
, 595 N.W.2d 23
An appeal under s. 102.16 (2m) (e) of a Department of Workforce Development determination may be served under sub. (1) (b) on the department or the Labor and Industry Review Commission. McDonough v. DWD, 227 Wis. 2d 271
, 595 N.W.2d 686
Under sub. (1) (a), judicial review is available only from an order or award granting or denying compensation. Judicial review by common law certiorari was not available for a claim that the Labor and Industry Review Commission failed to act within the statutory time limitations under s. 102.18 (4), which would be subject to judicial review of any subsequent order or award granting or denying compensation in that case. Vidal v. LIRC, 2002 WI 72
, 253 Wis. 2d 426
, 645 N.W.2d 870
The plaintiff complied with the requirement of sub. (1) that every adverse party be made a defendant by naming the defendant's insurer in the caption of the summons and complaint, which were timely filed and served even though the insurer was not mentioned in the complaint's body. Selaiden v. Columbia Hospital, 2002 WI App 99
, 253 Wis. 2d 553
, 644 N.W.2d 690
Sub. (5) requires an employer to make payment to a disabled employee pending appeal of a date of injury defense in an occupational disease case when the employer's liability is not disputed on appeal and the only question is who will pay benefits. Bosco v. LIRC, 2004 WI 77
, 272 Wis. 2d 586
, 681 N.W.2d 157
Because s. 102.18 (1) (bp) specifically allows for the imposition of bad faith penalties on an employer for failure to pay benefits and because sub. (5) specifically directs the employer to pay benefits pending an appeal when the only issue is who will pay benefits, an employer may be subject to bad faith penalties under s. 102.18 (1) (bp), independent from its insurer, when it fails to pay benefits in accordance with sub. (5). Bosco v. LIRC, 2004 WI 77
, 272 Wis. 2d 586
, 681 N.W.2d 157
Under Miller Brewing Co.
, 166 Wis. 2d 830
(1992), an “adverse party" for worker's compensation actions in circuit court includes any party bound by the Labor and Industry Review Commission's order or award granting or denying compensation to the claimant. The interests of an adverse party need not necessarily be adverse to the party filing a circuit court action. Xcel Energy Services, Inc. v. LIRC, 2012 WI App 19
, 339 Wis. 2d 413
, 810 N.W.2d 865
Failure to name an adverse party as a defendant under sub. (1) (a) deprives the circuit court of competency and requires dismissal of the complaint. “Adverse party" includes every party whose interest in relation to the judgment or decree appealed from is in conflict with the modification or reversal sought by the action for judicial review. Xcel Energy Services, Inc. v. LIRC, 2013 WI 64
, 349 Wis. 2d 234
, 833 N.W.2d 665
The only reasonable reading of sub. (1) (c)'s plain language is that a stipulation is only required from active parties. To require the Department of Workforce Development to obtain stipulations to venue from parties who have not responded to the action and have not expressed any interest in participating is unreasonable and does not further the purpose of preventing inconvenience or hardship to parties involved in the action. The stipulation of the parties is not required prior to the filing of the action. DWD v. LIRC, 2015 WI App 56
, 364 Wis. 2d 514
, 869 N.W.2d 163
The venue provision of sub. (1) (a) is central to the statutory scheme, and as such, failure to comply with its mandates deprived the circuit court of the competency to hear the cases. DWD v. LIRC, 2016 WI App 21
, 367 Wis. 2d 609
, 877 N.W.2d 620
Judicial Review of Workmen's Compensation Cases. Haferman. 1973 WLR 576.
Remanding record. 102.24(1)(1)
Upon the setting aside of any order or award, the court may recommit the controversy and remand the record in the case to the commission for further hearing or proceedings, or it may enter the proper judgment upon the findings of the commission, as the nature of the case shall demand. An abstract of the judgment entered by the trial court upon the review of any order or award shall be made by the clerk of circuit court upon the judgment and lien docket entry of any judgment which may have been rendered upon the order or award. Transcripts of the abstract may be obtained for like entry upon the judgment and lien dockets of the courts of other counties.
After the commencement of an action to review any order or award of the commission, the parties may have the record remanded by the court for such time and under such condition as the parties may provide, for the purpose of having the department or the division act upon the question of approving or disapproving any settlement or compromise that the parties may desire to have so approved. If approved, the action shall be at an end and judgment may be entered upon the approval as upon an award. If not approved, the department or the division shall immediately return the record to the circuit court and the action shall proceed as if no remand had been made.
Appeal from judgment on award. 102.25(1)(1)
Any party aggrieved by a judgment entered upon the review of any order or award may appeal the judgment within the period specified in s. 808.04 (1)
. A trial court may not require the commission or any party to the action to execute, serve, or file an undertaking under s. 808.07
or to serve, or secure approval of, a transcript of the notes of the stenographic reporter or the tape of the recording machine. The state is a party aggrieved under this subsection if a judgment is entered upon the review confirming any order or award against the state. At any time before the case is set down for hearing in the court of appeals or the supreme court, the parties may have the record remanded by the court to the department or the division in the same manner and for the same purposes as provided for remanding from the circuit court to the department or the division under s. 102.24 (2)
It shall be the duty of the clerk of any court rendering a decision affecting an award of the commission to promptly furnish the commission with a copy of such decision without charge.
History: 1971 c. 148
; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1977 c. 29
; 1979 c. 278
; 1983 a. 219
; 2015 a. 55
Judicial Council Note, 1983: Sub. (1) is amended to replace the appeal deadline of 30 days after service of notice of entry of judgment or award by the standard time specified in s. 808.04 (1), stats., for greater uniformity. The subsection is further amended to eliminate the superfluous provisions for calendaring and hearing the appeal. [Bill 151-S]
A court order setting aside an administrative order and remanding the case to the administrative agency disposed of the entire matter in litigation and was appealable as of right. Bearns v. DILHR, 102 Wis. 2d 70
, 306 N.W.2d 22