                                                                     2013 WI 64

                  SUPREME COURT                 OF   WISCONSIN
CASE NO.:                2011AP203
COMPLETE TITLE:          Xcel Energy Services, Inc.,
                                   Petitioner-Appellant-Petitioner,
                              v.
                         Labor and Industry Review Commission
                         and John Smoczyk,
                                   Respondents-Respondents.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 339 Wis. 2d 413, 810 N.W.2d 865
                                    (Ct. App – 2012 Published)
                                     PDC No: 2012 WI App 19

OPINION FILED:           July 11, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           January 11, 2013

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Chippewa
   JUDGE:                James M. Isaacson

JUSTICES:
   CONCURRED:            ABRAHAMSON, C.J., concurs. (Opinion filed).
                         BRADLEY, J., joins Part I of concurrence.
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the petitioner-appellant-petitioner, there were briefs
by   Timothy        S.   Crom,   Matthew   P.   Bandt   and   Jardine,   Logan   &
O’Brien, P.L.L.P., Lake Elmo, MN, and oral argument by Matthew
P. Bandt.


       For the respondents-respondents, the cause was argued by
Richard Briles Moriarty, assistant attorney general, with whom
on the brief was J.B. Van Hollen, attorney general.
                                                                                 2013 WI 64
                                                                         NOTICE
                                                           This opinion is subject to further
                                                           editing and modification.   The final
                                                           version will appear in the bound
                                                           volume of the official reports.
No.       2011AP203
(L.C. No.    2010CV362)

STATE OF WISCONSIN                                     :              IN SUPREME COURT

Xcel Energy Services, Inc.,

              Petitioner-Appellant-Petitioner,                                FILED
      v.
                                                                         JUL 11, 2013
Labor and Industry Review Commission and John
Smoczyk,                                                                    Diane M. Fremgen
                                                                         Clerk of Supreme Court

              Respondents-Respondents.




      REVIEW of a decision of the Court of Appeals.                           Reversed and

remanded.



      ¶1      PATIENCE DRAKE ROGGENSACK, J.                    This is a review of a

published     opinion      of   the    court      of   appeals1        that     reversed      a
decision of the Chippewa County Circuit Court,2                            which in turn

had   affirmed        an   order      of    the    Labor        and     Industry       Review
Commission     (LIRC)      awarding        worker's        compensation       benefits       to

John Smoczyk for his permanent total disability that resulted


      1
       Xcel Energy Servs., Inc. v. LIRC, 2012 WI App 19, 339
Wis. 2d 413, 810 N.W.2d 865.
      2
          The Honorable James M. Isaacson presided.
                                                                         No.    2011AP203



from a work-related injury during his employment by Xcel Energy

Services, Inc.            Three issues are presented.            First, Xcel claims

that        the   court   of   appeals   erred    when     it   concluded      that   the

circuit court was required to dismiss Xcel's complaint for lack

of competency based on Xcel's failure to name its insurer, ACE

American Insurance Co., as an "adverse party," pursuant to Wis.

Stat.        § 102.23(1)(a)        (2011–12).3      Second,       Xcel    raises      two

challenges to the merits of LIRC's decision, claiming that:                           (1)

there was not credible and substantial evidence in the record to

support LIRC's finding that Smoczyk was entitled to permanent

total disability benefits under the odd-lot doctrine; and (2)

LIRC acted without authority or in excess of its powers4 when it

awarded Smoczyk disability benefits after an administrative law

judge (ALJ) had ordered that further medical procedures were

required          to   determine     whether     Smoczyk    was    permanently        and

totally disabled.

       ¶2         We conclude that the circuit court had competency to

adjudicate Xcel's complaint, notwithstanding Xcel's omission of
ACE, because ACE was not an "adverse party" for purposes of Wis.

Stat. § 102.23(1)(a).              In reaching this conclusion, we reaffirm
our decision in Miller Brewing Co. v. LIRC (Miller II), 173

        3
       All subsequent references to the Wisconsin Statutes are to
the 2011–12 edition unless otherwise indicated.
        4
       Xcel's argument on this point, founded on Wis. Stat.
§ 102.23(1)(e)1., amounts to a claim that LIRC did not have the
authority to decide Smoczyk's claim contrary to the order of one
of the ALJs. For ease of reference, we refer to Xcel's argument
on this point as claiming that LIRC "exceeded its authority."

                                           2
                                                                        No.     2011AP203



Wis. 2d 700, 713–18, 495 N.W.2d 660 (1993), and conclude that an

"adverse party" under § 102.23(1)(a) is a party "in whose favor"

LIRC's award or order was made, or a party "whose interest is in

conflict with the modification or reversal" of LIRC's order or

award.       We also now withdraw language that creates a definition

of "adverse party" proffered by the court of appeals in Miller

Brewing Co. v. LIRC (Miller I), 166 Wis. 2d 830, 842, 480 N.W.2d

532 (Ct. App. 1992), that is not in accord with our definition.5

       ¶3      Additionally, rather than remanding to the court of

appeals      to review        the merits of         Xcel's   complaint,       which    the

court of appeals did not review, we affirm LIRC's award in favor

of Smoczyk.           First, based on the evidence of record, LIRC's

finding that Smoczyk is entitled to permanent total disability

benefits      on   an    odd-lot   basis       is    supported     by   credible       and

substantial evidence.             Second, Xcel has not demonstrated that

LIRC       exceeded     its   authority    in       reaching   a   conclusion         that

departed from an ALJ's order in Smoczyk's worker's compensation

proceeding before the Department of Workforce Development (DWD).

Therefore, we reverse the decision of the court of appeals and
we remand with instructions to affirm LIRC's decision awarding

permanent total disability benefits to Smoczyk.

       5
       After oral argument, LIRC submitted a letter to this
court, suggesting that we encourage the Worker's Compensation
Advisory Council to propose amendments to Wis. Stat. § 102.23
for the Legislature's consideration, clarifying which parties
are required to be included for judicial review under § 102.23.
To the extent that either the Commission or Legislature conclude
that further clarification of that language is necessary, we
rest assured that they will proceed accordingly.

                                           3
                                                                     No.     2011AP203



                                I.    BACKGROUND

     ¶4     On January 25, 2007, Smoczyk, while employed by Xcel

as an ironworker, injured his back.             After taking a short break

to rest his back, Smoczyk returned to work and finished his

shift.6

     ¶5     After experiencing significant pain over the weekend,

Smoczyk returned to work the following Monday and notified his

supervisor about the back injury.              On February 1, 2007, Smoczyk

met with Dr.       Jane Stark,       accompanied    by    a    representative      of

Xcel, Scott Crotty.           Dr. Stark diagnosed Smoczyk with a back

sprain/strain, which she concluded could reasonably be related

to his work activities.

     ¶6     Soon    thereafter,      Smoczyk    began      undergoing        physical

therapy, but in late February 2007, believing that Dr. Stark's

recommendations were not in his best interest, Smoczyk began

treatment    with    Dr.    Joseph     Hebl.       Dr.    Hebl     continued      the

recommendation      for    physical     therapy     and       imposed      light-duty

restrictions.          Soon    after     Dr.      Hebl     imposed         light-duty
restrictions, Smoczyk was laid off as part of Xcel's seasonal

layoffs; however, Smoczyk was never rehired and has not worked
since being laid off in February 2007.

     ¶7     Although      Smoczyk    experienced    some      relief    during    the
course of physical therapy, he returned to Dr. Hebl in May 2007,

and reported that his back pain had worsened.                    Over the course


     6
       Smoczyk worked four ten-hour days, and the injury occurred
on a Thursday, the end of Smoczyk's work week.

                                        4
                                                                                 No.     2011AP203



of the next two months, Smoczyk reported varying pain levels for

his back, while also reporting new pain radiating down both legs

to the bottom of his feet.                     Dr. Hebl suggested that Smoczyk

consider     a    consultation         at     the    Pain     Clinic       of    Northwestern

Wisconsin,       where     he    might      obtain       more     aggressive           treatment,

including        steroid        injections          or     possibly       spinal        surgery.

Smoczyk     expressed      some     concern         that    such    invasive           treatments

might exacerbate his condition or create new pain.

       ¶8    Notwithstanding his concerns, Smoczyk visited the Pain

Clinic on July 13, 2007, and met with Dr. Mark Schlimgen.                                     Dr.

Schlimgen recommended further physical therapy, as well as an

epidural steroid injection intended to address Smoczyk's lower

back   pain.       Smoczyk        received      epidural          steroid       injections     on

July 13      and    27,         both     of     which        provided           some     relief.

Additionally,       Smoczyk        continued         to     attend     physical          therapy

treatments and to practice                  exercises        at    home.         Smoczyk     also

continued to meet with Dr. Hebl, who maintained the light-duty

work restrictions.
       ¶9    In    early        September      2007,       Dr.     Hebl     suggested        that

Smoczyk apply for Social Security Disability benefits, based on
Dr. Hebl's opinion that Smoczyk would be unable to return to

work, and that he would be unable to pursue any other gainful
employment.        Later that month, Smoczyk met with an independent

medical examiner, Dr. John Dowdle, at the request of Xcel.                                    Dr.
Dowdle opined that the work injury in January 2007 exacerbated a

preexisting spinal condition, and that the treatments he had


                                               5
                                                                           No.     2011AP203



been receiving were "reasonable                   and    necessary. . . .          [having]

been done in [an] attempt to manage his back pain."

     ¶10    Dr. Dowdle suggested that there existed a number of

treatment options for Smoczyk.                    One was a procedure called a

medial    branch    block,        which   would     be    intended    to    temporarily

decrease Smoczyk's back pain and determine whether he might be a

candidate    for    a   subsequent        procedure,        a   radiofrequency        facet

denervation, which might have helped eliminate some of his lower

back pain.        Dr. Dowdle also recommended work restrictions:                          a

20–25 pound maximum lifting limit, minimal bending and lifting,

and avoiding prolonged single positioning.                         Additionally, Dr.

Dowdle    assessed      a     five   percent      permanent       partial        disability

rating,     and    recommended         that       Smoczyk       discontinue       physical

therapy.

     ¶11    Smoczyk returned to Dr. Hebl on October 3, 2007, and

reported worsening neck pain, as well as continuing, persistent

back and leg pain.          At that visit, Dr. Hebl removed Smoczyk from

work-availability and reiterated that Smoczyk should continue to
pursue Social Security Disability benefits.                       Thereafter, Smoczyk

was deemed eligible for Social Security disability benefits, as
well as permanent partial disability benefits for five percent

of the body as a whole and temporary total disability for the
period between February and December 2007.

     ¶12    During late fall and winter of 2007, Smoczyk continued
treatment    with       Dr.       Schlimgen,      who     discussed     Dr.       Dowdle's

recommendation      for       a   radiofrequency         rhizotomy    procedure        with


                                              6
                                                                           No.    2011AP203



Smoczyk.7        Specifically, Dr. Schlimgen noted that the recommended

procedure would address back and hip pain, but that it would not

treat Smoczyk's leg pain, which still comprised a significant

portion of his overall pain.                   Dr. Schlimgen noted that because

he could not rule out the facet joints as "being at least a

contributor"           to   Smoczyk's     back      and   hip   pain,    "it     would    be

reasonable to consider a medial branch blockade to determine if

the facet joints are contributing to this portion of his pain."

Dr. Hebl later concurred with these recommendations.

        ¶13      Smoczyk again met with Dr. Hebl in February 2008, and

reiterated         his      reluctance    to     undergo    additional         procedures,

based       on   his     concern    of    exacerbating      his    pain.         Based     on

Smoczyk's hesitance to undergo further treatment, Dr. Hebl noted

that Smoczyk was at the                  end   of    healing,     and   that     he    had a

permanent disability rating of 20 percent attributable to his

lower       back    and      leg   conditions,       as    well    as   three         percent

attributable to his neck.


        7
       Although  Dr.   Schlimgen   referred  to   "radiofrequency
rhizotomy" and Dr. Dowdle used the term "radiofrequency facet
denervation," the parties have used the terms interchangeably
throughout this litigation.   A radiofrequency facet denervation
refers to a procedure that utilizes bursts of electrical energy
in the radiofrequency range to sever the nerve supply of the
facet joints, which are found on the faces of adjacent
vertebrae. See Stedman's Medical Dictionary 1503 (27th ed.
2000); Taber's Cyclopedic Medical Dictionary 555, 1158 (20th ed.
2005). Similarly, a radiofrequency rhizotomy refers to a
procedure utilizing electrical energy to sever a spinal nerve
root to relieve pain or reduce spasticity.         See Stedman's
Medical Dictionary at 1503, 1610. Hereinafter, we use the term
radiofrequency rhizotomy to refer to that procedure.

                                               7
                                                                                No.     2011AP203



        ¶14    During summer and fall of 2008, Smoczyk underwent two

separate vocational assessments, one on his behalf conducted by

Sidney Bauer, and the other on Xcel's behalf, conducted by John

Meltzer.       Relying upon Dr. Dowdle's suggested limitations, Bauer

concluded         that        Smoczyk's            only       potential         occupational

opportunities         would      be       in    the    service       industry,        but     that

Smoczyk's physical restrictions, his education, and the limited

labor market resulted in Smoczyk's being permanently and totally

disabled under the odd-lot doctrine.                        Similarly, Bauer concluded

that    Smoczyk       was     permanently        and       totally    disabled        under    Dr.

Hebl's    opinion        as    well,       based      on    Dr.   Hebl's     recommendation

regarding permanent partial disability rating and his suggestion

that Smoczyk would be unable to return to gainful employment.

        ¶15    Xcel's vocational expert, John Meltzer, also proffered

opinions based on the medical conclusions of Drs. Dowdle and

Hebl.         Based on Dr. Dowdle's opinion, Meltzer concluded that

Smoczyk       would    have     a    60    to    70    percent       decrease     in    earning

capacity, but that with a diligent search, Smoczyk would be able
to     find    suitable        light-duty          work     within     his   home       market.

Conversely, based on Dr. Hebl's opinion, Meltzer concluded that
Smoczyk would be permanently and totally disabled for vocational

purposes.         Ultimately,         Meltzer         concluded      that    Smoczyk        could
pursue positions in the service industry, such as sales clerk,

hotel clerk, or security guard.
       ¶16     On December 16, 2008, a hearing on Smoczyk's worker's

compensation       claim       was    held      before      the   Worker's      Compensation

Division of the DWD.                 After hearing testimony from Smoczyk and
                                                 8
                                                                           No.    2011AP203



reviewing the record, the ALJ, Enemuoh-Trammell, concluded that

Smoczyk      was    entitled     to    temporary        total    disability       benefits

through February 13, 2008, when Dr. Hebl concluded that Smoczyk

had reached the end of healing.                   The ALJ declined to award any

permanent partial disability beyond the five percent that Xcel

had conceded based on Dr. Dowdle's opinion.

       ¶17     Particularly relevant to the dispute now before this

court,       ALJ   Enemuoh-Trammell        held     that       Smoczyk's     failure    to

pursue a medial branch blockade to determine his candidacy for a

radiofrequency rhizotomy precluded a determination on permanent

total disability.         Accordingly, the ALJ entered an interlocutory

order that provided that if Smoczyk failed to pursue "further

treatment" within two years of the order, Xcel could seek a

final order on the findings and conclusions at issue.

       ¶18     Soon after the ALJ's decision, Smoczyk again visited

Dr.    Hebl,       who   suggested      that      the       radiofrequency       rhizotomy

referred to by the ALJ was no longer feasible.                       This conclusion

was affirmed by Dr. Schlimgen, who noted that it was unlikely
that a rhizotomy would provide Smoczyk any relief.                               Based on

that     conclusion,       Dr.        Schlimgen        expressly     noted       that   he
"recommended        against    [rhizotomy]        as    a    treatment     option,"     and

instead       recommended        occasional         corticosteroid           injections,
physical therapy, and exercise as methods of pain management.

       ¶19    On August 11, 2009, a second DWD hearing was held,
this time before ALJ Mary Lynn Endter.                       After hearing testimony

from Smoczyk and considering the evidence of record, ALJ Endter

concluded that Smoczyk had a permanent partial disability of 60
                                            9
                                                                                 No.     2011AP203



percent, based on Xcel's vocational expert's opinion, but that

Smoczyk was not entitled to permanent total disability benefits.

        ¶20        Smoczyk then filed a timely petition for review with

LIRC,     seeking          relief     from       ALJ     Endter's         decision       denying

permanent total disability benefits.                        In a written order, LIRC

reviewed the opinions of the medical and vocational experts, the

testimony of Smoczyk, and the findings and conclusions of the

ALJs who had              reviewed    Smoczyk's        case.       LIRC    concluded that,

based on the odd-lot doctrine, Smoczyk had made a prima facie

case for permanent total disability by showing that he had been

"injured in an industrial accident and, because of [his] injury,

age,    education,          and     capacity,     [he]      is    unable    to     secure      any

continuing          and    gainful    employment."             Smoczyk     v.     Xcel      Energy

Servs., Inc., WC Claim No. 2007–009610, at 8 (LIRC, May 6, 2010)

(citing       Balczewski v.          DILHR,      76    Wis. 2d      487,    251    N.W.2d      794

(1977)).           Based     on    that   showing,        LIRC    held     that    the      burden

shifted       to    Xcel     to    show   that      there    were    jobs    available         for

Smoczyk, but that Xcel had failed to make such a showing.

        ¶21    In     particular,         LIRC    concluded        that    the    opinion       of

Smoczyk's          vocational       expert,      Bauer,     was    more    persuasive         than

that of Meltzer.               Bauer concluded that even if Smoczyk could

compete for jobs in the service industry notwithstanding his age

and    educational          background,       the      physical     components         of    those

jobs (e.g., sitting, standing) would not reasonably accommodate

Smoczyk's physical                restrictions.         Accordingly,        LIRC       concluded

that    as     of    February 13,         2008      (the    date     on    which       Dr.    Hebl

concluded that Smoczyk had reached the end of healing), Smoczyk
                                                 10
                                                                                    No.      2011AP203



was permanently          and totally           disabled,        and     that      Xcel       and    its

insurer were required to pay benefits in accordance with that

determination.

        ¶22    In     response,       Xcel     filed       a     summons         and      complaint

seeking       judicial       review     of    LIRC's       decision         in    the        Chippewa

County        Circuit     Court,       contending          that       LIRC        exceeded          its

authority       because        LIRC's        conclusion         was     not       supported         by

credible and substantial evidence in the record.                                    In response,

LIRC contended first that the circuit court lacked competency to

proceed       upon    Xcel's    complaint          and     that      the    complaint           should

therefore       be      dismissed.            LIRC       reasoned          that        Wis.      Stat.

§ 102.23(1)(a)          required      Xcel     to    name       all    adverse         parties       as

defendants in its complaint, and that Xcel had failed to name

its insurer,          ACE.      Additionally,            LIRC     contended         that      if    the

court    concluded       that     competency         was       not    at     issue,       Xcel      had

failed    to     prove    that     there       was    no    credible         and       substantial

evidence to support LIRC's findings.                       The circuit court rejected

LIRC's competency argument, but otherwise affirmed LIRC's order
granting Smoczyk permanent total disability benefits.

     ¶23       Xcel     filed     a     timely       appeal,          based       on      the      same
arguments it had raised in the circuit court.                                     The court of

appeals,       however,       declined        to     reach      the        merits       of      LIRC's
decision.        See Xcel, 339 Wis. 2d 413, ¶6.                         Instead, the court

concluded       that    ACE     was   an      "adverse         party"       under      Wis.      Stat.

§ 102.23(1)(a),          relying        upon       the     court       of     appeals'           broad

statement in Miller I, 166 Wis. 2d at 842, that an "'adverse

party' . . . includes any party bound by [LIRC's] order or award
                                               11
                                                                         No.     2011AP203



granting or denying compensation                   to    the   claimant."       On   that

basis, the court of appeals affirmed the circuit court's order

affirming LIRC, and remanded with instructions to dismiss Xcel's

complaint.       Xcel, 339 Wis. 2d 413, ¶14.                     Xcel then filed a

timely petition for review in this court, which we granted.

                              II.   STANDARD OF REVIEW

        ¶24   Xcel first argues that the court of appeals erred in

directing the circuit court to dismiss Xcel's complaint for lack

of   competency       to   proceed    due    to    ACE    not   being    named     as    an

"adverse party" under Wis. Stat. § 102.23(1)(a).                          Whether the

circuit court possessed competency to adjudicate the complaint

is a question of law that we review independently of the court

of appeals and the circuit court.                  See Miller II, 173 Wis. 2d at
711.     Similarly, determining whether ACE was an "adverse party"

under    § 102.23(1)(a),        requires      us    to    interpret     the    statutory

meaning of that term, which presents a question of law for our

independent review.           Cnty. of Dane v. LIRC, 2009 WI 9, ¶14, 315

Wis. 2d 293, 759 N.W.2d 571.

        ¶25   Next,    Xcel    argues      that,    if    we   reach   the     merits of

LIRC's decision, we should set aside LIRC's order because:                              (1)

there was not credible and substantial evidence to support a

finding that Smoczyk reasonably refused to undergo the medical

procedures suggested by the first ALJ; and (2) LIRC exceeded its

authority by awarding Smoczyk benefits contrary to the first

ALJ's    order   suggesting         that   Smoczyk       undergo   a    radiofrequency

rhizotomy before benefits could be determined.                         With regard to

LIRC's findings of fact, we will uphold those findings if there
                                            12
                                                                              No.     2011AP203



is "credible and substantial evidence in the record on which

reasonable      persons     could        rely       to   make    the    same        findings."

deBoer Transp., Inc. v. Swenson, 2011 WI 64, ¶30, 335 Wis. 2d

599, 804 N.W.2d 658 (quoting Begel v. LIRC, 2001 WI App 134, ¶5,

246     Wis. 2d      345,   631    N.W.2d       220      (internal      quotation        marks

omitted)).        The question of whether LIRC exceeded its authority

is a question of law, and we owe no deference to an agency's

determination of the scope of its powers.                             See Wis.'s Envtl.

Decade, Inc. v. Pub. Serv. Comm'n, 81 Wis. 2d 344, 351, 260

N.W.2d 712 (1978).

                                   III.    DISCUSSION

 A.     "Adverse Party" Requirement Under Wis. Stat. § 102.23(1)(a)

        ¶26    The court of appeals concluded that Xcel's failure to

name ACE as a defendant in the complaint deprived the circuit

court    of    competency     to    proceed         because     ACE     was    an    "adverse

party" required to be named under Wis. Stat. § 102.23(1)(a).

The court of appeals relied upon a definition of "adverse party"

in    Miller    I,    166   Wis. 2d       at    841–42,       that     provided       that   an

adverse party is any party "bound by the Commission's order or

award granting . . . compensation to the claimant."                            See id.       In

Miller II, we declined to address that definition from Miller I

and instead relied upon the established definition of "adverse

party," based on prior decisions of this court discussing the

term,    as    well    as   Black's       Law       Dictionary.         To     address       the

question presented, we must interpret the term "adverse party"

under    § 102.23(1)(a).           But    first,         to   provide    context       to    the


                                               13
                                                                        No.   2011AP203



meaning of LIRC's competency challenge, we begin with a brief

discussion of competency.

                               1.     Competency

     ¶27   Competency       refers    to    a    "circuit    court's      ability     to

exercise   the     subject    matter       jurisdiction       vested     in    it"   by

Article VII, Section 8 of the Wisconsin Constitution.8                        Vill. of

Trempealeau   v.    Mikrut,    2004    WI       79,   ¶9,   273   Wis. 2d     76,    681

N.W.2d 190 (emphasis added).           That section provides that circuit

courts have jurisdiction to hear "all matters civil and criminal

within this state."          Wis. Const. art. VII, § 8.                   Given this

broad constitutional grant of subject matter jurisdiction to the

circuit courts, we have recognized that "no circuit court is

without subject matter jurisdiction to entertain actions of any

nature whatsoever."          Vill. of Trempealeau, 273 Wis. 2d 76, ¶8
(quoting Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790

(1982) (internal quotation marks omitted)).                       That is, because

subject matter jurisdiction is conferred on the courts by the

constitution, it cannot be revoked by statute.                    See id.

     ¶28   Although     a    circuit       court      may   not    be   deprived     of

jurisdiction by operation of a statute, a circuit court may lack

competency to render a valid order or judgment when the parties


     8
       In some older cases, the concept of circuit court
competency was often discussed as coextensive with the court's
subject matter jurisdiction, but recent cases make clear that
the two concepts are distinct and that it is competency, not
subject matter jurisdiction, that may be lacking where statutory
prerequisites are not followed.     See Vill. of Trempealeau v.
Mikrut, 2004 WI 79, ¶¶8–9, 273 Wis. 2d 76, 681 N.W.2d 190.

                                           14
                                                                               No.     2011AP203



seeking        judicial     review        fail       to    meet       certain        statutory

requirements.           See id., ¶9.           Not every failure to comply with

statutory       requirements       will    deprive        the    court    of       competency,

however.       "Only when the failure to abide by a statutory mandate

is 'central to the statutory scheme' of which it is a part will

the circuit court's competency to proceed be implicated."                                     See

id., ¶10 (quoting State v. Bollig, 222 Wis. 2d 558, 567–68, 587

N.W.2d 908 (Ct. App. 1998)).

        ¶29    When    a party seeks           judicial        review    of    an     order or

award     by     LIRC     granting        or     denying        worker's       compensation

benefits,       Wis.      Stat.      § 102.23(1)(a)            defines     the       exclusive

statutory       scheme    by    which     the    party     may    file     a       summons    and

complaint in the circuit court.                     See Miller II, 173 Wis. 2d at
706.      As     discussed      in    greater        detail      below,       we     have    long

recognized that compliance with § 102.23(1)(a)'s "adverse party"

requirement       is     central     to    the      statutory     scheme       of     judicial

review    of    LIRC's     worker's       compensation          decisions.            See    id.;

accord Brandt v. LIRC, 166 Wis. 2d 623, 626, 480 N.W.2d 494

(1992); Holley v. DILHR, 39 Wis. 2d 260, 264, 158 N.W.2d 910

(1968).        Accordingly, failure to name an adverse party as a

defendant       under    § 102.23(1)(a)          deprives       the     circuit       court    of

competency and requires dismissal of the complaint.                                 Miller II,

173    Wis. 2d    at     706.        We   turn      now   to    the   interpretation           of

"adverse party" under § 102.23(1)(a) to determine whether ACE

was an adverse party required to have been named as a defendant

in Xcel's complaint.


                                               15
                                                                     No.     2011AP203



                 2.   Wis. Stat. § 102.23(1)(a)'s "adverse party"

        ¶30      Our interpretation of "adverse party" under Wis. Stat.

§ 102.23(1)(a) begins with the language of the statute.9                         Wis.

Indus. Energy Group, Inc. v. Pub. Serv. Comm'n, 2012 WI 89, ¶15,

342 Wis. 2d 576, 819 N.W.2d 240.                 "If the meaning of the statute

is plain, we ordinarily stop the inquiry."                    State ex rel. Kalal

v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d

633, 681 N.W.2d 110.              When examining plain meaning, we give the

statutory language "its common, ordinary, and accepted meaning,

except that technical or specially-defined words or phrases are

given their technical or special definitional meaning."                           Id.
"In determining the ordinary meaning of undefined words, '[w]e

may consult a dictionary to aid in statutory construction.'"

Cnty.       of    Dane,   315   Wis. 2d   293,    ¶23   (quoting   Spiegelberg     v.

State, 2006 WI 75, ¶19, 291 Wis. 2d 601, 717 N.W.2d 641).                       Also,

when we engage in statutory interpretation, "we are assisted by

prior       decisions      that    have   examined      the   relevant     statutes."

State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d 848.



        9
            Wisconsin Stat. § 102.23(1)(a) provides, in relevant part:

    Within 30 days after the date of an order or award
    made by the commission either originally or after the
    filing of a petition for review with the department
    under s. 102.18 any party aggrieved thereby may by
    serving a complaint as provided in par. (b) and filing
    the summons and complaint with the clerk of the
    circuit court commence, in circuit court, an action
    against the commission for the review of the order or
    award, in which action the adverse party shall also be
    made a defendant. (Emphasis added.)

                                           16
                                                                                    No.     2011AP203



       ¶31   "Adverse           party"       is    not       defined        under     Wis.        Stat.

§ 102.23(1)(a), although the language of that section governing

judicial     review        of    worker's         compensation          claims       has     existed

relatively unchanged since 1911.                            Compare § 102.23(1)(a) with

Wis. Stat. § 2394–19 (1911).                      See also Hammond-Chandler Lumber

Co. v. Indus. Comm'n of Wis., 163 Wis. 596, 602, 158 N.W. 292

(1916).           Similar            to     the     language           currently          used      in

§ 102.23(1)(a), the earliest phrasing of the relevant provision

stated    that    a    party         aggrieved         by    an     order    or     award    of     the

Industrial       Commission           (LIRC's      predecessor)             could    commence       an

action in circuit court "against the [commission] for the review

of such award, in which action the adverse party shall also be
made defendant."           § 2394–19 (1911) (emphasis added).

       ¶32   A    dictionary              definition         from    around       the     time     the

statutory language was adopted provides a common and accepted

understanding         of       the        term    "adverse."            The       Webster's        New

International         Dictionary            defines         "adverse"       as    "(1)      [a]cting

against,     or   in       a    contrary         direction;          opposed;       antagonistic;

. . . (2) [i]n hostile opposition to one's interest; . . . (5)

Law.     Having       opposing            interests;         having     interests           for    the

preservation of which opposition is essential."                                     Webster's New

International Dictionary 38 (2d ed. 1934).                                  Notably, our early

interpretations of the term "adverse party," as used in Wis.

Stat. § 2394–19 (1915), comport with the dictionary definition

of the term "adverse."                     For example, in Hammond-Chandler, 163

Wis. at 602, we held that the term "adverse party," in the

context of the statute allowing an "aggrieved" party to bring an
                                                  17
                                                                                    No.     2011AP203



action for judicial review of a worker's compensation order, was

intended to refer to "the persons interested in supporting the

award," or, similarly, "the one in whose favor the award was

made."

        ¶33    The        following          year       we     reaffirmed           our     earlier

interpretation            of     the       term     "adverse         party"       in      Gough    v.

Industrial Commission of Wisconsin, 165 Wis. 632, 633, 162 N.W.

434   (1917),        in    which       a   deceased      man's       wife    and       mother     both

claimed       worker's         compensation         benefits         for    the     man's    death.

After the Industrial Commission awarded benefits to the mother,

the wife commenced an action for judicial review, but named only

the Commission and the man's employer——but not the mother——in

the complaint.             Id.     This court held that the mother was an
"adverse       party"          required       to    be       named     under       the      statute,

recognizing that to decide the case in favor of the wife "would

necessarily require the setting aside of the award in favor of

the mother . . . . The rights, if any, therefore, of the widow

would necessarily be adverse to those of the mother."                                        Id. at

635–36.

        ¶34    Accordingly,            the    requirement        of        naming      an    adverse

party as a defendant under Wis. Stat. § 102.23(1)(a) has long

been interpreted to mean that the party seeking judicial review

of LIRC's decision must, in addition to naming LIRC, name the

party     "in        whose       favor"       LIRC       decided       the        case.           This

interpretation adheres to the common, ordinary, accepted meaning

of the term, and also comports with Black's Law Dictionary's

definition of "adverse party," as we recognized in Brandt, 166
                                                   18
                                                                                        No.        2011AP203



Wis. 2d at       630–31.           Under       that    definition,               an    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 appeal."                       Id. (internal quotation marks

omitted).

       ¶35    Furthermore,             LIRC    has     adopted             the        "in    favor        of"

definition      of       "adverse        party"       in     its        regulation               governing

judicial review of worker's compensation actions.                                           Wis. Admin.

Code   § LIRC       3.05.         Similar       to    the    provisions               of     Wis.     Stat.

§ 102.23(1)(a), the regulation provides that "[t]he action [for

judicial      review]         shall     be    commenced          against         [LIRC],           and   the

party in whose favor the order or award was made shall also be

made a defendant."              Id.
       ¶36    The     recognized         definitions             of     "adverse             party"       all

express a common conception of adversity, which is evident in

the    context           of     the     statutory           language             of         Wis.      Stat.

§ 102.23(1)(a).               Under     that    section,          the      party        empowered          to

bring a complaint is the party "aggrieved" by LIRC's decision,

and    that    party          becomes    the     plaintiff            in     the       circuit        court

action.       See § 102.23(1)(a); see also Hammond-Chandler, 163 Wis.

at    599    ("Only       a    party     aggrieved          by    a     judgment             can      appeal

therefrom.          Where        the    party        appealing          is       not        in   any      way

aggrieved,       the           appeal        should     be        dismissed."                 (Citations

omitted.)).           The       "aggrieved       party,"          or       plaintiff,            is      then

required to name the "adverse party" as a "defendant" in the

complaint.       See § 102.23(1)(a).                   Based on accepted dictionary

definitions         of    the     term        "adverse,"         i.e.,           "having          opposing
                                                 19
                                                                     No.   2011AP203



interests," for the term "adverse party" to make sense in the

context of an "aggrieved party" and "defendant," the "adverse

party" that must be named as a defendant must be a party that

was not aggrieved by LIRC's order or award on the issue raised

by the complainant.

       ¶37    With this understanding of "adverse party," we turn to

the Miller case.10         As demonstrated below, we conclude that the

court of appeals in Miller I erroneously expanded the meaning of

the term "adverse party" when it stated that, for purposes of

Wis. Stat. § 102.23(1)(a), the term "includes any party bound by

[LIRC's] order or award granting or denying compensation to the

claimant."        Miller I, 166 Wis. 2d at 842.

       ¶38    The Miller case involved an action brought by Miller

Brewing and one of its insurers, National Union Fire Insurance,

seeking judicial review of LIRC's worker's compensation award

for one of Miller's employees.                   See Miller II, 173 Wis. 2d at

704.         In   the   LIRC   proceeding,        LIRC   had   dismissed     another

insurer, Twin City Fire Insurance, based on the date of the

employee's injury and the different time periods for which the

two insurers had provided Miller coverage.                  Id. at 704–05.

       ¶39    In   Miller,     the   date    of    injury   was   highly   relevant

because, if the employee was deemed to have been injured at an

earlier date (the date on which the employee first suffered a


       10
       We use the designation "Miller" to discuss the background
facts of the case, whereas we rely on the "Miller I" and "Miller
II" designations when discussing the respective holdings in the
court of appeals and this court.

                                            20
                                                                            No.        2011AP203



wage loss), National Union would have been liable; conversely,

if the employee was deemed to have been injured at a later date

(the date employment was terminated), then Twin City would have

been liable.        See id. at 708–09.               The Department of Industry,

Labor, and Human Relations (DILHR) had first concluded that the

date of injury was the later date, but when LIRC decided the

case, it concluded that the date of injury was the earlier date.

See id.       Based on that conclusion, LIRC dismissed Twin City

because the injury had occurred outside of Twin City's coverage

period.     See id.

      ¶40    When     Miller    and    National        Union       filed     a    complaint

seeking review of LIRC's decision, they did not name Twin City

as   a    defendant     in     the    proceeding,       and        the    circuit         court

concluded that the failure to name Twin City deprived the court

of   competency.        See    id.    at    709–11.          The    court        of    appeals

affirmed the dismissal for lack of competency, but relied upon a

broader     conception of "adverse              party":       "any       party        bound    by

[LIRC's] order or award granting or denying compensation to the

claimant."     Miller I, 166 Wis. 2d at 842.

      ¶41    On review, we reaffirmed our longstanding definition

of   "adverse       party"     under       Wis.      Stat.     § 102.23(1)(a),                and

recognized two different phrasings of that definition, both of

which supported the conclusion that Twin City was an adverse

party whose absence deprived the circuit court of competency.

See Miller II, 173 Wis. 2d at 715–18.                     We first reaffirmed the

longstanding definition of "adverse party" that we had developed

in   Hammond-Chandler,         163    Wis.      at    602,    and        which    LIRC        had
                                           21
                                                                                      No.        2011AP203



incorporated into Wis. Admin. Code § LIRC 3.05, that an adverse

party is a party "in whose favor the order or award was made."

See Miller II, 173 Wis. 2d at 713–17.                                 We also reaffirmed the

Black's Law Dictionary definition that we had adopted in Brandt,

166   Wis. 2d        at    630–31,        that      "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]."                                  See Miller II, 173

Wis. 2d at 714–17 (internal quotation                            marks omitted).

       ¶42     Additionally, Miller and National Union encouraged us

to adhere to another definition of "adverse party," including

any party "whose interests were adverse to the appellant during

the administrative proceedings."                         Id. at 715–718.               However, we

declined to adopt that definition, and cautioned that there are

instances       in       which   a   party's        position           in    the    administrative

proceeding          is    not    determinative            of     adversity          upon     judicial

review.       See id. at 718–23.

        ¶43    Furthermore, and most notable for present purposes, in

Miller II we also declined to address the definition relied on

by    the     court       of    appeals      in     Miller       I,     166       Wis. 2d    at      842.

Instead,       we    concluded       that      the       existing       definitions          properly

disposed       of    the       question       of    which       parties       were     adverse         for

purposes       of    Wis.       Stat.     § 102.23(1)(a).                   See    Miller    II,       173

Wis. 2d at 716 n.8.

        ¶44    LIRC now embraces the definition adopted by the court

of    appeals        in    Miller       I,    and       urges     us    to        expand    upon       the

established          definition         that       we    reaffirmed           in    Miller        II    to
                                                   22
                                                                             No.     2011AP203



incorporate the court of appeals' broad definition.                           However, we

decline to expand the definition of "adverse party" to include

"any party bound by [LIRC's] order or award granting or denying

compensation," see id., and take this opportunity to reaffirm

our adherence to the longstanding definition that we relied upon

in   Miller        II.11       Moreover,       we    conclude      that   a    definition

proffered by the court of appeals in Miller I is erroneous, and

we hereby withdraw the language from Miller I stating that "any

party      bound    by     [LIRC's]    order        or    award   granting     or    denying

compensation"            is     an    "adverse           party"   under       Wis.      Stat.

§ 102.23(1)(a).            See Miller I, 166 Wis. 2d at 842.                 In so doing,

we   reaffirm       our       adherence   to    the       established     definition       of

"adverse party," as stated in Miller II, 173 Wis. 2d at 716–19.

      ¶45     Under our established definition, Xcel's insurer, ACE,

was not an adverse party required to be named under Wis. Stat.

§ 102.23(1)(a).            First, there is no suggestion that LIRC's award

was "in favor" of ACE, as we have interpreted that term.                                  See

id. at 713–14; see also Wis. Admin. Code § LIRC 3.05.                                Second,

Xcel's action in circuit court did not seek to reverse or modify

LIRC's decision in any way that would have conflicted with ACE's


      11
       We take this opportunity to clarify the equivalence of
the two phrasings of the "adverse party" definition discussed in
Miller II; that is, (1) a party "in whose favor an award has
been made" and (2) a party "whose interest is in conflict with
the modification" of LIRC's order sought by the complainant.
Miller II, 173 Wis. 2d at 716.        As discussed above, both
phrasings pit the party "aggrieved" by LIRC's order against a
party who was not "aggrieved" by the order (or at least that
portion challenged by the aggrieved party).

                                               23
                                                                          No.     2011AP203



interests.       Rather, the modification Xcel sought was intended to

reduce its exposure to liability for Smoczyk's permanent total

disability benefits, and although the terms of the insurance

contract between Xcel and ACE are not before this court, logic

suggests       that   the    downward      modifications         Xcel     sought       would

correspond to the interests of ACE.                  Moreover, in contrast with

the    Miller    case,      there   is    no    suggestion       that    there       is    any

coverage dispute with another insurer that would have provided

coverage during a different coverage period, and even if there

were, LIRC's award was not in favor of such other insurer such

that    the    insurer      would have     an    interest       in    upholding      LIRC's

decision.

        ¶46    Accordingly,     we       conclude       that,    under        Wis.     Stat.

§ 102.23(1)(a),       ACE     was   not    adverse      to    Xcel;     and     therefore,

ACE's absence from Xcel's complaint did not deprive the circuit

court of competency to proceed to the merits.                           Accordingly, we

reverse the court of appeals' decision.

                               B.    Xcel's Complaint

        ¶47    Having concluded that the circuit court had competency
to    decide    Xcel's      complaint,     we    turn    to     the    merits     of      that

complaint, which alleges that:                  (1) LIRC's order should be set
aside because it was not supported by credible and substantial

evidence in the record; and (2) LIRC exceeded its authority by
awarding       Smoczyk      permanent      and    total       disability        benefits,

because LIRC did not give proper deference to the first ALJ's

order    suggesting      a    radiofrequency        rhizotomy.            Xcel's       first

argument raises a question of whether LIRC's factual findings
                                           24
                                                                              No.    2011AP203



were supported by the record, while the second raises a question

of law regarding the scope of LIRC's authority.                                 We address

these claims separately.

                     1.    Credible and substantial evidence

       ¶48    Xcel        argues      that     there     was      not        credible      and

substantial evidence in the record to demonstrate that Smoczyk

reasonably refused to undergo a radiofrequency rhizotomy.                                 "The

reasonableness of an employee's neglect or refusal to submit to

treatment     is     a    question       of   fact"    for     LIRC's      determination.

Klein Indus. Salvage v. DIHLR, 80 Wis. 2d 457, 461, 259 N.W.2d

124 (1977).          It is well established that on review, we will

uphold LIRC's findings of fact, provided there is credible and

substantial evidence in the record on which reasonable persons

could rely in reaching the same findings.                        See deBoer Transp.,

335 Wis. 2d 599, ¶30.              Credible and substantial evidence is that

which   is    "sufficient          to    exclude     speculation        or    conjecture."

Bumpas v. DILHR, 95 Wis. 2d 334, 343, 290 N.W.2d 504 (1980).

Moreover,     Wis.        Stat.    § 102.23(6)        provides      that     where    LIRC's

order or award depends on a finding by LIRC, "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."

See also Milwaukee Symphony Orchestra, Inc. v. DOR, 2010 WI 33,

¶31,    324    Wis. 2d          68,     781   N.W.2d    674      ("[T]he       weight      and

credibility        of     the     evidence     are     for    the    agency,        not    the

reviewing court, to determine." (quoting Hilton v. DNR, 2006 WI

84, ¶25, 293 Wis. 2d 1, 717 N.W.2d 166 (internal quotation marks

omitted)).      The burden of showing that LIRC's decision was not
                                              25
                                                                No.     2011AP203



supported by credible and substantial evidence is on the party

seeking to set aside LIRC's findings and order.                 See Bretl v.

LIRC, 204 Wis. 2d 93, 99, 553 N.W.2d 550 (Ct. App. 1996).

      ¶49    In concluding that Smoczyk was entitled to benefits

for   permanent     total   disability,   LIRC   relied    on     the    odd-lot

doctrine    that   provides   that   "some   injured    workers       should   be

characterized as permanently, totally disabled even though they

are still capable of earning occasional income."                   Beecher v.

LIRC, 2004 WI 88, ¶2, 273 Wis. 2d 136, 682 N.W.2d 29.                 Under the

odd-lot doctrine, a worker's compensation claimant is required

to make a prima facie showing "that he has been injured in an

industrial accident and, because of his injury, age, education,

and capacity, he is unable to secure any continuing and gainful

employment."       Id., ¶3 (quoting Balczewski, 76 Wis. 2d at 495).

When the claimant makes a prima facie showing, the burden shifts

to the employer to show that the claimant is employable and that

jobs do exist for the injured claimant.          Id.

      ¶50    In its written decision in this case, LIRC set forth

the elements of a prima facie case under the odd-lot doctrine

and then applied its findings to that law.             Relevant to its odd-

lot analysis, LIRC relied on the opinions of the experts in this

case, namely those of Dr. Dowdle and Sidney Bauer, Smoczyk's

vocational expert.      In doing so, LIRC explicitly determined that

Bauer's     opinion   was   more   persuasive    than    Xcel's       vocational

expert, John Meltzer.         LIRC noted in its decision that Bauer

provided      persuasive      reasons     why     Meltzer's           employment

recommendations were not feasible in light of Smoczyk's physical
                                     26
                                                                             No.    2011AP203



restrictions and the reasonable likelihood that Smoczyk would be

able     to   compete       in    the     local     labor    market,       based    on    his

education and experience.

       ¶51    Bauer's report on Smoczyk's vocational opportunities

is in the record, as are the reports of Meltzer and Drs. Stark,

Dowdle, Hebl, and Schlimgen, upon which the vocational experts'

reports       were    based.            Accordingly,        there    is    credible       and

substantial evidence in the record to support LIRC's finding

that Smoczyk is permanently totally disabled under the odd-lot

doctrine.

       ¶52    The credibility of the doctors' opinions is a matter

entrusted to LIRC, and we will not speculate as to how LIRC

reached the findings that it did.                        LIRC's decision noted that

Dr.    Schlimgen          changed     his    recommendation          regarding      further

treatment, and on that basis, LIRC declined to draw any adverse

inference about Smoczyk's decision not to seek a radiofrequency

rhizotomy.          It is not LIRC's role to evaluate every individual

premise upon which an expert's opinion is based, nor is it the
role   of     the    courts      to   verify      that    LIRC's     decision      gave   the

proper      weight    to    experts'        intermediate      conclusions.          Rather,
LIRC's      role     is    to    make    findings        supported    by    credible      and

substantial evidence in the record.                       Similarly, our role is to
examine the record to ensure that evidence of record supports

the findings LIRC actually reached, not to reevaluate the weight
and    credibility         of    every    piece     of    evidence    upon     which      LIRC

relied.       We therefore decline to independently evaluate whether

Smoczyk should have undergone further medical procedures.
                                               27
                                                                                 No.     2011AP203



       ¶53    Moreover, Xcel's specific factual argument, that there

is not credible            and    substantial         evidence      in    the     record     that

Smoczyk      "reasonably         refused       medical     treatment,"          amounts     to    a

challenge to the doctors' medical opinions regarding the proper

course of treatment              for Smoczyk,          rather      than     a   challenge        to

LIRC's findings.           Drs. Hebl and Schlimgen considered the option

of a rhizotomy, but ultimately concluded that the procedure no

longer presented a feasible option for treating Smoczyk's pain

at the time of LIRC's review.                         The record includes multiple

references to the progression of Smoczyk's condition, including

the doctors'           statements       recognizing        the     diminished          likelihood

that   certain         treatments,       such    as    a     radiofrequency            rhizotomy,

would have any lasting effect on Smoczyk's pain.

       ¶54    We       therefore       conclude       that    there       is    credible      and

substantial evidence in the record on which a reasonable person

could rely to reach LIRC's finding that Smoczyk was not required

to   undergo       a    rhizotomy       before        being      found    permanently         and

totally disabled.
                                  2.    LIRC's authority

       ¶55    Xcel's acting without authority argument is related to
its first argument, that LIRC's decision is not supported by

credible and substantial evidence, because when a decision by
LIRC is not supported by credible and substantial evidence, the

decision is in excess of LIRC's authority.                           See M. & M. Realty

Co. v. Indus. Comm'n, 267 Wis. 52, 57, 64 N.W.2d 413 (1954).

Moreover,      as        discussed       in      greater         detail        below,      Xcel's

suggestion         that      LIRC        was      bound       by      the       first       ALJ's
                                                28
                                                                                      No.     2011AP203



recommendation, in effect, suggests that there was not credible

and   substantial           evidence       in    the        record       for    LIRC    to     make   a

different finding than the ALJ.                           Although the two arguments are

separate, the governing principles overlap.

      ¶56     When      a    party    to    a        worker's      compensation             proceeding

seeks review of an ALJ's finding or order, LIRC is not bound by

the   ALJ's      decision,       and     may         "affirm,       reverse,         set     aside    or

modify the findings or order in whole or in part, or direct the

taking      of    additional          evidence."                  Wis.       Stat.     § 102.18(3).

Moreover,        when       we   review         an        award    or     denial       of    worker's

compensation benefits, we review the decision of LIRC, rather

than the decisions of the ALJs, the circuit court, or the court

of    appeals.           See     Cnty.      of        Dane,        315       Wis. 2d       293,   ¶14;

Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 281, 195 N.W.2d

656 (1972) ("The findings before us for review are those of the

department,        not       those      earlier             made        by     the     examiner.").

Furthermore,            we       have           recognized               that         "[u]nreviewed

administrative law judge decisions regarding Chapter 102 are not

binding on the Commission," Theuer v. LIRC, 2001 WI 26, ¶13, 242

Wis. 2d 29, 624 N.W.2d 110.                     Similarly, an ALJ's failure to make

a finding on a particular issue also does not bind LIRC, and the

lack of a finding will not preclude a decision by LIRC on that

matter.      See Worsch v. DILHR, 46 Wis. 2d 504, 509, 175 N.W.2d

201 (1970).

      ¶57     Xcel's argument that LIRC exceeded its authority when

it    issued      an    order        that       "conflicted             with    the     un-appealed

holding" of the first ALJ reduces to a claim that LIRC was bound
                                                     29
                                                                             No.    2011AP203



by the ALJ's order, and that LIRC was not empowered to decide

the issue of permanent total disability before Smoczyk obtained

a   radiofrequency          rhizotomy.          Not    only      does       this   argument

disregard the non-binding effect of ALJs' findings on LIRC's

decisions,      but      it    also     ignores       LIRC's       express         statutory

authority over Smoczyk's timely appeal from the second ALJ's

order denying permanent and total disability benefits.                             See Wis.

Stat. § 102.18(3); see also Davis v. Indus. Comm'n, 22 Wis. 2d

674, 678–79, 126 N.W.2d 611 (1964) ("We are required to assume,

unless   there      is   affirmative      proof       to   the    contrary,        that the

commission acted regularly as to all matters and pursuant to the

rules    of   law     and     proper    procedures         in    its    determination.")

(internal quotation marks and citation omitted).

     ¶58      Therefore, we conclude that LIRC did not exceed its

authority when it decided Smoczyk's claim for permanent total

disability     without        requiring    him    to       undergo      further     medical

procedures     as    suggested     by     the   first      ALJ.        In    reaching    its

conclusion, LIRC addressed both ALJs' findings and determined

that the facts of record compelled a different result.                             This was

proper under the statutes governing LIRC's review, as well as

our cases discussing LIRC's discretion over ALJs' findings and

conclusions.        Accordingly, we affirm LIRC's award for Smoczyk.

                                  IV.     CONCLUSION

     ¶59      We conclude that the circuit court had competency to

adjudicate Xcel's complaint, notwithstanding Xcel's omission of

ACE, because ACE was not an "adverse party" for purposes of Wis.

Stat. § 102.23(1)(a).            In reaching this conclusion, we reaffirm
                                           30
                                                                                 No.     2011AP203



our decision in Miller II, 173 Wis. 2d at 713–18, and conclude

that an       "adverse          party" under     § 102.23(1)(a)         is       a     party    "in

whose favor" LIRC's award or order was made, or a party "whose

interest is in conflict with the modification or reversal" of

LIRC's      order     or    award.      We    also     now   withdraw        language          that

creates a definition of "adverse party" proffered by the court

of appeals in Miller I, 166 Wis. 2d at 842, which is not in

accord with our definition.

       ¶60    Additionally, rather than remanding to the court of

appeals      to review          the   merits of       Xcel's    complaint,             which    the

court of appeals did not review, we affirm LIRC's award in favor

of Smoczyk.           First, based on the evidence of record, LIRC's

finding that Smoczyk is entitled to permanent total disability

benefits      on     an    odd-lot     basis     is      supported     by    credible           and

substantial evidence.                 Second, Xcel has not demonstrated that

LIRC     exceeded         its    authority     in     reaching    a     conclusion             that

departed from an ALJ's order in Smoczyk's worker's compensation

proceeding before the DWD.                   Therefore, we reverse the decision

of   the     court    of    appeals     and    we     remand    with    instructions            to
affirm       LIRC's       decision     awarding       permanent        total           disability

benefits to Smoczyk.
       By    the     Court.—The       decision      of    the   court       of       appeals    is

reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.




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      ¶61     SHIRLEY S. ABRAHAMSON, C.J.                      (concurring).          Although

I do not join the majority opinion, I agree that the circuit

court can adjudicate Xcel's complaint even though ACE was not a

named party.        I also agree that LIRC's decision and order should

be affirmed on the merits.                I write separately to express two

concerns.

                                               I

      ¶62     One concern is that the majority opinion repeatedly

and   incorrectly      paraphrases         Article         VII,      Section      8   of   the

Wisconsin Constitution without fully and accurately stating its

terms.      The majority opinion states as follows:

      •      Article VII, Section 8 "provides that circuit courts

             have    jurisdiction         to       hear    'all      matters      civil    and

             criminal within this state.'"                     Majority op., ¶27.

      •      "[W]e have recognized that [according to Article VII,

             Section 8] 'no circuit court is without subject matter

             jurisdiction        to     entertain          actions        of    any    nature

             whatsoever.'"        Majority op., ¶27.

      •      "[B]ecause subject matter jurisdiction is conferred on

             the courts by the constitution, it cannot be revoked

             by statute."        Majority op., ¶27.

      •      "Although       a   circuit       court      may       not   be    deprived   of

             jurisdiction        by     operation         of    a   statute,      a   circuit

             court     may       lack     competency             [to      render      certain

             judgments]. . . ."           Majority op., ¶28.

      ¶63    In contrast, the Wisconsin Constitution, Article VII,

Section 8, provides as follows:                    "Except as otherwise provided

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by law, the circuit court shall have original jurisdiction in

all    matters       civil       and    criminal        within        this    state       and       such

appellate jurisdiction in the circuit as the legislature may

prescribe by law" (emphasis added).

        ¶64    For     a     full       discussion           of     the      import           of    this

constitutional         provision,            which      gets       lost      in     the       majority

opinion's      paraphrasing            and   in    various         discussions           of    subject

matter    jurisdiction           and    competency,           see     Eberhardy          v.    Circuit

Court for Wood Cnty., 102 Wis. 2d 539, 547-553, 307 N.W.2d 881

(1981).

        ¶65    Misstating this            constitutional             provision          has,       in my

opinion, led to a confusing body of law on the meaning and use

of     the     concepts          of     "subject             matter        jurisdiction"                and

"competency."          This confusion has taken on a life of its own

over    the    years       and    shows      no   sign       of    abating.             See    Shopper

Advertiser, Inc. v. DOR, 117 Wis. 2d 223, 236-40, 344 N.W.2d 115

(1984)       (Abrahamson,         J.,    concurring           in    part     &     dissenting           in

part).
                                                  II

        ¶66    My     second      concern         is        that    the      majority          opinion

perpetuates uncertainty in the law.                           Plaintiffs are going to be

uncertain regarding whom to name as "adverse parties" under Wis.

Stat.    § 102.23.           A    simple      error         may    cause     plaintiffs            to   be

thrown out of court.

       ¶67     LIRC    asked      the     court        to    adopt     broad       language         from

Miller I.       This would have thrown the plaintiff in the present



                                                  2
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case out of court but might have brought more certainty to the

law.        The majority opinion is unwilling to do so.

        ¶68      Instead, the majority opinion withdraws the following

language from Miller I:1                 "any party bound by [LIRC's] order or

award granting or denying compensation is an 'adverse party.'"

Majority op., ¶44.              Thus, the majority opinion accomplishes what

the Miller II2 court was unwilling to do.

        ¶69      A goal in interpreting the text of Wis. Stat. § 102.23

is to create certainty for the parties.                             Under the statute, a

complaint        against       LIRC    for review of             its     order      or     award——in

which the adverse party is also to be made a defendant——is filed

in   circuit         court     and     served       upon     a    commissioner             or    agent

authorized by the commission to accept service.                                         Such service

constitutes          complete        service     on    all        parties.               Wis.    Stat.

§ 102.23(1)(b).              The   commission         then       mails      one     copy    to    each

other defendant.

        ¶70      No plaintiff should lose his, her, or its day in court

by failing to name a party as a defendant or naming the wrong

party       as   a defendant          under    Wis.    Stat.       § 102.23.              Plaintiffs

should       not    be    defeated      in    their    redress         of    grievances          by   a

confusing          maze   of   statutes       and     judicial         opinions          instructing

them whom to name as a defendant for review of a LIRC order or

award.


        1
       Miller Brewing Co. v. LIRC (Miller I), 166 Wis. 2d 830,
842, 480 N.W.2d 532 (Ct. App. 1992).
        2
       Miller Brewing Co. v. LIRC (Miller II), 173 Wis. 2d 700,
704, 495 N.W.2d 660 (1993).

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       ¶71    I therefore unequivocally and firmly recommend, as the

Assistant         Attorney      General    requested         of    the    court,           that   the

Worker's Compensation Advisory Council review this decision and

propose to the legislature revisions to Wis. Stat. § 102.23 to

clarify      who    must     be   included      as    a     party    in    judicial          review

governed by Wis. Stat. § 102.03.3

       ¶72    The Wisconsin Worker's Compensation Advisory Council

was created in 1975 to advise on policy matters concerning the

development and administration of the workers' compensation law.4

The Council         is    composed    of    five      management,         five        labor,      and

three non-voting insurance members appointed by the secretary of

the Department of Workforce                 Development            and    is     chaired by        a

department employee.              "The Council provides a vehicle for labor

and    management          representatives           to     play    a     direct           role   in

recommending changes in the workers' compensation law to the

legislature."5

       ¶73    Until       the     Wisconsin     Worker's          Compensation             Advisory

Council and the legislature act, to avoid confusion I propose

that       LIRC     consider        adopting         the     practice           of     providing

information        with    its     order   or       award    instructing             the    parties

about who is to be named as an "adverse party" in subsequent

review.       "When an agency appends a notice to its decision and


       3
       Letter dated Jan. 16, 2013, on file with the court.                                        See
majority op., ¶2 n.5.
       4
           Wis. Stat. § 102.14(2).
       5
       17 Thomas M. Domer & Charles F. Domer, Wisconsin Practice
Series, Workers' Compensation Law § 2.8 (2012-2013 ed.).

                                                4
                                                                           No.    2011AP203.ssa


the notice clearly directs a party how to appeal, the notice

should remove any confusion created by the statutes about whom

to name and serve."6

     ¶74     The legislature and the court have similarly suggested

elsewhere that the administrative entity lead the way.                                    See,

e.g., Wis. Stat. § 227.48(2) (providing that "[e]ach decision

shall include notice of any right of the parties to petition for

rehearing    and     administrative         or     judicial       review         of   adverse

decisions,     the       time    allowed     for        filing    each       petition       and

identification       of    the    party     to     be     named    as       respondent.");

Sunnyview     Village,          Inc.   v.        Wis.     Dep't       of     Admin.,        104

Wis. 2d 396, 412, 311 N.W.2d 632 (1981) (court recommends that

governmental entities adopt practice of providing information on

which government entity to be named and served as a respondent)

(cited in All Star Rent A Car, Inc. v. DOT, 2006 WI 85, ¶46, 292

Wis. 2d 615,       716    N.W.2d 506        (court       has     "repeatedly          exhorted

administrative agencies to include with their decisions clear

notices    explaining       the    procedures        that      must     be       followed    to
obtain judicial review.")); Wis. Envtl. Decade, Inc. v. Pub.

Serv. Comm'n, 84 Wis. 2d 504, 534, 267 N.W.2d 609 (1978) (court

directs PSC to identify principal parties who must be served).

     ¶75     Action by LIRC would quell the confusion perpetuated

by the majority opinion.

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




     6
       All Star Rent A Car, Inc. v. DOT, 2006 WI 85, ¶47, 292
Wis. 2d 615, 716 N.W.2d 506.

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     ¶77   I   am   authorized   to   state   that   Justice    ANN   WALSH

BRADLEY joins Part I of this concurring opinion.




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