A report or record described in subd. 1.
, or 3.
that is admitted or received into evidence by the division constitutes substantial evidence under s. 102.23 (6)
as to the matter contained in the report or record.
The division may, with or without notice to any party, cause testimony to be taken, an inspection of the premises where the injury occurred to be made, or the time books and payrolls of the employer to be examined by any examiner, and may direct any employee claiming compensation to be examined by a physician, chiropractor, psychologist, dentist, or podiatrist. The testimony so taken, and the results of any such inspection or examination, shall be reported to the division for its consideration upon final hearing. All ex parte testimony taken by the division shall be reduced to writing, and any party shall have opportunity to rebut that testimony on final hearing.
shall not apply to proceedings under this chapter, except as to a witness who is any of the following:
About to go out of the state, not intending to return in time for the hearing.
So sick, infirm, or aged as to make it probable that the witness will not be able to attend the hearing.
A member of the legislature, if any committee of the legislature or of the house of which the witness is a member is in session and the witness waives his or her privilege.
Whenever the testimony presented at any hearing indicates a dispute or creates a doubt as to the extent or cause of disability or death, the division may direct that the injured employee be examined, that an autopsy be performed, or that an opinion be obtained without examination or autopsy, by or from an impartial, competent physician, chiropractor, dentist, psychologist or podiatrist designated by the division who is not under contract with or regularly employed by a compensation insurance carrier or self-insured employer. The expense of the examination, autopsy, or opinion shall be paid by the employer or, if the employee claims compensation under s. 102.81
, from the uninsured employers fund. The report of the examination, autopsy, or opinion shall be transmitted in writing to the division and a copy of the report shall be furnished by the division to each party, who shall have an opportunity to rebut the report on further hearing.
The contents of certified reports of investigation made by industrial safety specialists who are employed, contracted, or otherwise secured by the department or the division and who are available for cross-examination, if served upon the parties 15 days prior to hearing, shall constitute prima facie evidence as to matter contained in those reports. A report described in this paragraph that is admitted or received into evidence by the division constitutes substantial evidence under s. 102.23 (6)
as to the matter contained in the report.
If the division has reason to believe that the payment of compensation has not been made, the division may on its own motion give notice to the parties, in the manner provided for the service of an application, of a time and place when a hearing will be held for the purpose of determining the facts. The notice shall contain a statement of the matter to be considered. All provisions of this chapter governing proceedings on an application shall apply, insofar as applicable, to a proceeding under this subsection. When the division schedules a hearing on its own motion, the division does not become a party in interest and is not required to appear at the hearing.
The division or any party, including the department, may require any person to produce books, papers, and records at the hearing by personal service of a subpoena upon the person along with a tender of witness fees as provided in ss. 814.67
. Except as provided in sub. (2s)
, the subpoena shall be on a form provided by the division and shall give the name and address of the party requesting the subpoena.
A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4)
and must be served in the manner provided in s. 805.07 (5)
. The attorney shall, at the time of issuance, send a copy of the subpoena to the hearing examiner or other representative of the division responsible for conducting the proceeding.
Any person who shall willfully and unlawfully fail or neglect to appear or to testify or to produce books, papers and records as required, shall be fined not less than $25 nor more than $100, or imprisoned in the county jail not longer than 30 days. Each day such person shall so refuse or neglect shall constitute a separate offense.
Except as provided in this subsection and s. 102.555 (12) (b)
, in the case of occupational disease, the right of an employee, the employee's legal representative, or a dependent to proceed under this section shall not extend beyond 12 years after the date of the injury or death or after the date that compensation, other than for treatment or burial expenses, was last paid, or would have been last payable if no advancement were made, whichever date is latest, and in the case of traumatic injury, that right shall not extend beyond 6 years after that date. In the case of occupational disease; a traumatic injury resulting in the loss or total impairment of a hand or any part of the rest of the arm proximal to the hand or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision, or any permanent brain injury; or a traumatic injury causing the need for an artificial spinal disc or a total or partial knee or hip replacement, there shall be no statute of limitations, except that benefits or treatment expense for an occupational disease becoming due 12 years after the date of injury or death or last payment of compensation, other than for treatment or burial expenses, shall be paid from the work injury supplemental benefit fund under s. 102.65
and in the manner provided in s. 102.66
and benefits or treatment expense for such a traumatic injury becoming due 6 years after that date shall be paid from that fund and in that manner if the date of injury or death or last payment of compensation, other than for treatment or burial expenses, is before April 1, 2006. Payment of wages by the employer during disability or absence from work to obtain treatment shall be considered payment of compensation for the purpose of this section if the employer knew of the employee's condition and its alleged relation to the employment.
This section does not limit the time within which the state may bring an action to recover the amounts specified in ss. 102.49 (5)
If an employee or dependent shall, at the time of injury, or at the time the employee's or dependent's right accrues, be under 18 years of age, the limitations of time within which the employee or dependent may file application or proceed under this chapter, if they would otherwise sooner expire, shall be extended to one year after the employee or dependent attains the age of 18 years. If, within any part of the last year of any such period of limitation, an employee, the employee's personal representative, or surviving dependent be insane or on active duty in the armed forces of the United States such period of limitation shall be extended to 2 years after the date that the limitation would otherwise expire. The provision hereof with respect to persons on active duty in the armed forces of the United States shall apply only where no applicable federal statute is in effect.
Except as provided in par. (b)
, in a claim under s. 102.44 (2)
, testimony or certified reports of expert witnesses on loss of earning capacity may be received in evidence and considered with all other evidence to decide on an employee's actual loss of earning capacity.
Except as provided in par. (c)
, the division shall exclude from evidence testimony or certified reports from expert witnesses under par. (a)
offered by the party that raises the issue of loss of earning capacity if that party failed to notify the division and the other parties of interest, at least 60 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved. Except as provided in par. (c)
, the division shall exclude from evidence testimony or certified reports from expert witnesses under par. (a)
offered by a party of interest in response to the party that raises the issue of loss of earning capacity if the responding party failed to notify the division and the other parties of interest, at least 45 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved.
Notwithstanding the notice deadlines provided in par. (b)
, the division may receive in evidence testimony or certified reports from expert witnesses under par. (a)
when the applicable notice deadline under par. (b)
is not met if good cause is shown for the delay in providing the notice required under par. (b)
and if no party is prejudiced by the delay.
Unless otherwise agreed to by all parties, an injured employee shall file with the division and serve on all parties at least 15 days before the date of the hearing an itemized statement of all medical expenses and incidental compensation under s. 102.42
claimed by the injured employee. The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured employee in obtaining treatment including the injured employee's destination, number of trips, round trip mileage, and meal and lodging expenses. The division may not admit into evidence any information relating to medical expenses and incidental compensation under s. 102.42
claimed by an injured employee if the injured employee failed to file with the division and serve on all parties at least 15 days before the date of the hearing an itemized statement of the medical expenses and incidental compensation under s. 102.42
claimed by the injured employee, unless the division is satisfied that there is good cause for the failure to file and serve the itemized statement.
History: 1971 c. 148
; 1971 c. 213
; 1973 c. 150
; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1975 c. 147
; 1975 c. 199
; 1977 c. 29
; 1979 c. 278
; 1981 c. 92
; 1981 c. 317
; 1981 c. 380
; 1981 c. 391
; 1985 a. 83
; 1989 a. 64
; 1991 a. 85
; 1993 a. 81
; 1995 a. 27
; 1997 a. 38
; 1999 a. 9
; 2001 a. 37
; 2003 a. 144
; 2005 a. 172
; 2007 a. 185
; 2009 a. 180
; 2011 a. 183
; 2013 a. 36
; 2015 a. 55
; s. 35.17 correction in (1) (d) 2.
See also ch. DWD 80
, Wis. adm. code.
A plaintiff-employer was not deprived of any substantial due process rights by the department's refusal to invoke its rule requiring inspection of the opposing parties' medical reports when the plaintiff had ample notice of the nature of the employee's claim. Theodore Fleisner, Inc. v. DILHR, 65 Wis. 2d 317
, 222 N.W.2d 600
Under the facts of the case, a refusal to grant an employer's request for adjournment was a denial of due process. Bituminous Casualty Co. v. DILHR, 97 Wis. 2d 730
, 295 N.W.2d 183
(Ct. App. 1980).
Sub. (1) (d) does not create a presumption that evidence presented by treating physicians is correct. The statute enforces the idea that LIRC determines the weight to be given medical witnesses. Conradt v. Mt. Carmel School, 197 Wis. 2d 60
, 539 N.W.2d 713
(Ct. App. 1995), 94-2842
LIRC's authority under sub. (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 s. 102.18 (1) (a). Baldwin v. LIRC, 228 Wis. 2d 601
, 599 N.W.2d 8
(Ct. App. 1999), 98-3090
In the absence of testimony in conflict with a claimant's medical experts, LIRC may reject the expert evidence if there is countervailing testimony raising legitimate doubt about the employee's injury. Kowalchuk v. LIRC, 2000 WI App 85
, 234 Wis. 2d 203
, 610 N.W.2d 122
It was reasonable for LIRC to conclude that the statute of limitations under sub. (4) for death benefits begins to run at the time of death, rather than the time of injury. International Paper Co. v. LIRC, 2001 WI App 248
, 248 Wis. 2d 348
, 635 N.W.2d 823
Neither sub. (1) (g) or (d) provides a statutory right to cross-examine an independent physician appointed by the department. When the legislature drafted sub. (1) (g), it chose to use the general term “rebut." Because it did not specify the right to cross-examination, it appears the legislature left to the department's discretion whether to allow cross-examination in circumstances where it might provide relevant and probative evidence. Sub. (1) (d) governs experts that are presented by a party to establish a prima facie case, not experts appointed by the department to provide an impartial report. LIRC did not violate the plaintiff's due process rights when it declined to remand for cross-examination. Aurora Consolidated Health Care v. Labor and Industry Review Commission, 2012 WI 49
, 340 Wis. 2d 367
, 814 N.W.2d 824
Prehearing discovery under Wisconsin's worker's compensation act. Towers. 68 MLR 597 (1985).
Apportionment of liability. 102.175(1)(1)
If it is established at the hearing that 2 or more accidental injuries, for each of which a party to the proceedings is liable under this chapter, have each contributed to a physical or mental condition for which benefits would be otherwise due, liability for such benefits shall be apportioned according to the proof of the relative contribution to disability resulting from the injury.
If after a hearing or a prehearing conference the division determines that an injured employee is entitled to compensation but that there remains in dispute only the issue of which of 2 or more parties is liable for that compensation, the division may order one or more parties to pay compensation in an amount, time, and manner as determined by the division. If the division later determines that another party is liable for compensation, the division shall order that other party to reimburse any party that was ordered to pay compensation under this subsection.
If it is established by the certified report of a physician, podiatrist, surgeon, psychologist, or chiropractor under s. 102.17 (1) (d) 1.
, a record of a hospital or sanatorium under s. 102.17 (1) (d) 2.
, or other competent evidence that an injured employee has incurred permanent disability, but that a percentage of that disability was caused by an accidental injury sustained in the course of employment with the employer against whom compensation is claimed and a percentage of that disability was caused by other factors, whether occurring before or after the time of the accidental injury, the employer shall be liable only for the percentage of permanent disability that was caused by the accidental injury. If, however, previous permanent disability is attributable to occupational exposure with the same employer, the employer is also liable for that previous permanent disability so established.
A physician, podiatrist, surgeon, psychologist, or chiropractor who prepares a certified report under s. 102.17 (1) (d) 1.
relating to a claim for compensation for an accidental injury causing permanent disability that was sustained in the course of employment with the employer against whom compensation is claimed shall address in the report the issue of causation of the disability and shall include in the report an opinion as to the percentage of permanent disability that was caused by the accidental injury and the percentage of permanent disability that was caused by other factors, including occupational exposure with the same employer, whether occurring before or after the time of injury.
Upon request of the department, the division, the employer, or the employer's worker's compensation insurer, an injured employee who claims compensation for an injury causing permanent disability shall disclose all previous findings of permanent disability or other impairments that are relevant to that injury.
History: 1979 c. 278
; 1993 a. 81
; 2015 a. 55
; s. 35.17 correction in (3) (a).
Findings, orders and awards. 102.18(1)(a)
All parties shall be afforded opportunity for full, fair, public hearing after reasonable notice, but disposition of application may be made by compromise, stipulation, agreement, or default without hearing.
Within 90 days after the final hearing and close of the record, the division shall make and file its findings upon the ultimate facts involved in the controversy, and its order, which shall state the division's determination as to the rights of the parties. Pending the final determination of any controversy before it, the division, after any hearing, may, in its discretion, make interlocutory findings, orders, and awards, which may be enforced in the same manner as final awards.
The division may include in any interlocutory or final award or order an order directing the employer or insurer to pay for any future treatment that may be necessary to cure and relieve the employee from the effects of the injury or to pay for a future course of instruction or other rehabilitation training services provided under a rehabilitation training program developed under s. 102.61 (1)
If the division finds that the employer or insurer has not paid any amount that the employer or insurer was directed to pay in any interlocutory order or award and that the nonpayment was not in good faith, the division may include in its final award a penalty not exceeding 25 percent of each amount that was not paid as directed.
When there is a finding that the employee is in fact suffering from an occupational disease caused by the employment of the employer against whom the application is filed, a final award dismissing the application upon the ground that the applicant has suffered no disability from the disease shall not bar any claim the employee may have for disability sustained after the date of the award.
If the division finds under par. (b)
that an insurer or self-insured employer is liable under this chapter for any health services provided to an injured employee by a health service provider, but that the reasonableness of the fee charged by the health service provider is in dispute, the division may include in its order under par. (b)
a determination made by the department under s. 102.16 (2)
as to the reasonableness of the fee or, if such a determination has not yet been made, the division may notify, or direct the insurer or self-insured employer to notify, the health service provider under s. 102.16 (2) (b)
that the reasonableness of the fee is in dispute.
If the division finds under par. (b)
that an employer or insurance carrier is liable under this chapter for any treatment provided to an injured employee by a health service provider, but that the necessity of the treatment is in dispute, the division may include in its order under par. (b)
a determination made by the department under s. 102.16 (2m)
as to the necessity of the treatment or, if such a determination has not yet been made, the division may notify, or direct the employer or insurance carrier to notify, the health service provider under s. 102.16 (2m) (b)
that the necessity of the treatment is in dispute.
If the division finds under par. (b)
that an insurer or self-insured employer is liable under this chapter for the cost of a prescription drug dispensed under s. 102.425 (2)
for outpatient use by an injured employee, but that the reasonableness of the amount charged for that prescription drug is in dispute, the division may include in its order under par. (b)
a determination made by the department under s. 102.425 (4m)
as to the reasonableness of the prescription drug charge or, if such a determination has not yet been made, the division may notify, or direct the insurer or self-insured employer to notify, the pharmacist or practitioner dispensing the prescription drug under s. 102.425 (4m) (b)
that the reasonableness of the prescription drug charge is in dispute.
If the division determines that the employer or insurance carrier suspended, terminated, or failed to make payments or failed to report an injury as a result of malice or bad faith, the division may include a penalty in an award to an employee for each event or occurrence of malice or bad faith. That penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. If the penalty is imposed for an event or occurrence of malice or bad faith that causes a payment that is due an injured employee to be delayed in violation of s. 102.22 (1)
or overdue in violation of s. 628.46 (1)
, the division may not also order an increased payment under s. 102.22 (1)
or the payment of interest under s. 628.46 (1)
. The division may award an amount that the division considers just, not to exceed the lesser of 200 percent of total compensation due or $30,000 for each event or occurrence of malice or bad faith. The division may assess the penalty against the employer, the insurance carrier, or both. Neither the employer nor the insurance carrier is liable to reimburse the other for the penalty amount. The division may, by rule, define actions that demonstrate malice or bad faith.
If an insurer, a self-insured employer, or, if applicable, the uninsured employers fund pays compensation to an employee in excess of its liability and another insurer or self-insured employer is liable for all or part of the excess payment, the department or the division may order the insurer or self-insured employer that is liable for that excess payment to reimburse the insurer or self-insured employer that made the excess payment or, if applicable, the uninsured employers fund.
If 2 or more examiners have conducted a formal hearing on a claim and are unable to agree on the order or award to be issued, the decision shall be the decision of the majority. If the examiners are equally divided on the decision, the division may appoint an additional examiner who shall review the record and consult with the other examiners concerning their impressions of the credibility of the evidence. Findings of fact and an order or award may then be issued by a majority of the examiners.
Any award which falls within a range of 5 percent of the highest or lowest estimate of permanent partial disability made by a practitioner which is in evidence is presumed to be a reasonable award, provided it is not higher than the highest or lower than the lowest estimate in evidence.
Except as provided in s. 102.21
, if the department or the division orders a party to pay an award of compensation, the party shall pay the award no later than 21 days after the date on which the order is mailed to the last-known address of the party, unless the party files a petition for review under sub. (3)
. This paragraph applies to all awards of compensation ordered by the department or the division, whether the award results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department or the division.
The department shall have and maintain on its staff such examiners as are necessary to hear and decide claims for compensation described in s. 102.16 (1) (b)
and to assist in the effective administration of this chapter.
The division shall have and maintain on its staff such examiners as are necessary to decide claims for compensation described in s. 102.16 (1) (c)
and to assist in the effective adjudication of claims under this chapter.
Examiners under pars. (a)
shall be attorneys and may be designated as administrative law judges. Those examiners may make findings and orders and may approve, review, set aside, modify, or confirm stipulations of settlement or compromises of claims for compensation.
A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department, the division, or the commission receives the petition within 21 days after the department or the division mailed a copy of the examiner's findings and order to the last-known addresses of the parties in interest. The commission shall dismiss a petition that is not filed within those 21 days unless the petitioner shows that the petition was filed late for a reason that was beyond the petitioner's control. If no petition is filed within those 21 days, the findings or order shall be considered final unless set aside, reversed, or modified by the examiner within that time. If the findings or order are set aside by the examiner, the status shall be the same as prior to the setting aside of the findings or order. If the findings or order are reversed or modified by the examiner, the time for filing a petition commences on the date on which notice of the reversal or modification is mailed to the last-known addresses of the parties in interest. The commission shall either affirm, reverse, set aside, or modify the findings or order, in whole or in part, or direct the taking of additional evidence. The commission's action shall be based on a review of the evidence submitted.
Within 28 days after the date of a decision of the commission, the commission may, on its own motion, set aside the decision for further consideration.
On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and, after further consideration, do any of the following:
Affirm, reverse or modify, in whole or in part, the order or award.
Remand the case to the department or the division for further proceedings.
While a petition for review by the commission is pending or after entry of an order or award by the commission but before commencement of an action for judicial review or expiration of the period in which to commence an action for judicial review, the commission shall remand any compromise presented to it to the department or the division for consideration and approval or rejection under s. 102.16 (1)
. Presentation of a compromise does not affect the period in which to commence an action for judicial review.
If it appears to the division that a mistake may have been made as to cause of injury in the findings, order, or award upon an alleged injury based on accident, when in fact the employee was suffering from an occupational disease, within 3 years after the date of the findings, order, or award the division may, upon its own motion, with or without hearing, set aside the findings, order or award, or the division may take that action upon application made within those 3 years. After an opportunity for hearing, the division may, if in fact the employee is suffering from disease arising out of the employment, make new findings, and a new order or award, or the division may reinstate the previous findings, order, or award.
In case of disease arising out of employment, the division may from time to time review its findings, order, or award, and make new findings, or a new order or award, based on the facts regarding disability or otherwise as those facts may appear at the time of the review. This subsection shall not affect the application of the limitation in s. 102.17 (4)
See also LIRC and s. HA 4.04
, Wis. adm. code.
Committee Note, 1971: The intent is to authorize the commission within its absolute discretion to reopen final orders on the basis of mistake or newly discovered evidence within a period of one year from the date of such order where this is found to be just. It is intended that the commission have authority to grant or deny compensation, including the right to increase or to decrease benefits previously awarded. [Bill 371-A]
Interlocutory orders issued by the department in worker's compensation cases are not res judicata. Worsch v. DILHR, 46 Wis. 2d 504
, 175 N.W.2d 201
When the department reverses an examiner's findings and makes independent findings, the latter should be accompanied by a memorandum opinion indicating not only prior consultation with the examiner and review of the record, but a statement or statements of the reasons for reaching a different result or conclusion, particularly when the credibility of witnesses is involved. Transamerica Insurance Co. v. DILHR, 54 Wis. 2d 272
, 195 N.W.2d 656
(1972). See also Mervosh v. LIRC, 2010 WI App 36
, 324 Wis. 2d 134
, 781 N.W.2d 236
The department could properly find no permanent disability in the case of a successful fusion of vertebrae and still retain jurisdiction to determine future disability when doctors testified that there might be future effects. Vernon County v. DILHR, 60 Wis. 2d 736
, 211 N.W.2d 441
In a case involving conflicting testimony in which the department reverses an examiner's findings, fundamental fairness requires a separate statement by the department explaining why it reached its decision, as well as specifically setting forth in the record its consultation with the examiner with respect to impressions or conclusions in regard to the credibility of witnesses. Simonton v. DILHR, 62 Wis. 2d 112
, 214 N.W.2d 302
Sub. (5) is inapplicable if at the original hearing the examiner considered the possibility of both accidental injury and injury caused by occupational disease and denied the applicant benefits. Murphy v. DILHR, 63 Wis. 2d 248
, 217 N.W.2d 370
An award will be affirmed if it is supported by any credible evidence. When there are inconsistencies or conflicts in medical testimony, it is for the department and not the courts to reconcile inconsistencies. Theodore Fleisner, Inc. v. DILHR, 65 Wis. 2d 317
, 222 N.W.2d 600
The authority granted under sub. (3) to modify the findings of a hearing examiner does not extend to the making of findings and an order on an alternative basis of liability neither tried by the parties nor ruled on by the examiner. When another basis of liability is applicable, the examiner's findings must be set aside and an order directing the taking of additional testimony entered, directing the examiner to make new findings as to the substituted basis. Joseph Schlitz Brewing Co. v. DILHR, 67 Wis. 2d 185
, 226 N.W.2d 492
The dismissal of an application that was neither based upon a stipulation or compromise nor entered after a hearing was void. The original application was valid though made many years earlier. Kohler Co. v. DILHR, 81 Wis. 2d 11
, 259 N.W.2d 695
The department 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 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 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 v. LIRC, 157 Wis. 2d 801
, 460 N.W.2d 835
(Ct. App. 1990).