STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GREGORY W STEBLER, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04004681BO

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed. The commission has considered the petition and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


Prior to the determination at issue, the claimant had last worked approximately two weeks in July of 2001. Prior to that work, he had worked about one year on a seasonal basis, as a carpenter for a construction corporation. His last day of actual work in that employment was in approximately March of 2001. He underwent rotator cuff and carpal tunnel surgeries in April and May of 2001. Pursuant to a claim which he filed for worker's compensation (WC) related to those injuries, he was paid weekly temporary total disability (TTD) benefits through September of 2001.

On October 18, 2001, the employer's WC carrier notified the claimant that based on the report of its independent medical examiner (IME), the claimant had reached the end of healing with a 2% permanent partial disability (PPD) at each wrist. It allocated payments due him and/or received as follows: 17.6 weeks of PPD at the maximum rate of $184.00, for a total of $3,238.40, and TTD due and paid of $11,835.00. The PPD and TTD payments totaled $15,073.40. The notification also included the insurer's conclusion that it and the employer were no longer liable for additional benefits.

Following the WC insurance carrier's decision that it was no longer liable for further benefits, the claimant filed an application for hearing with the Worker's Compensation Division.

In November of 2001, the claimant entered into an Individualized Plan for Employment with the Division of Vocational Rehabilitation (DVR) which set forth a plan for retraining that included attending college with a goal of employment in business administration, marketing or finance. The insurance carrier engaged the services of a professional counselor to determine if the program selected by DVR was appropriate for the claimant and whether DVR abused its discretion in selecting such program. The counselor's ultimate conclusion, set forth in a May 3, 2002, report, was that although the claimant's goal of obtaining a degree in accounting was not the most appropriate for him, it was in the general field, business administration, which was appropriate. The counselor found that DVR did not abuse its discretion in certifying the claimant for school.

Subsequently, the parties entered into a compromise agreement. The compromise agreement, dated June 10, 2002, provided for a lump sum payment to the claimant of $79,576.63, reimbursement to the claimant of out-of-pocket expenses, and payment of outstanding medical expenses. The compromise agreement was approved by an amended order of the WC ALJ having jurisdiction over the case, issued on July 1, 2002. The order provided for a lump sum payment of $20,000.00 to the claimant, fees to his attorney of $15,915.33, other disbursements to medical care providers, and the additional lump sum of $43,354.07 to be deposited in an interest bearing bank account in the claimant's name, having withdrawals restricted to the sum of $1,700.00 per month.

The claimant attended various educational institutions from November of 2001 until May of 2004. The claimant received an undergraduate degree in business administration and finance. The claimant filed an unemployment claim after receiving his penultimate WC payment in August of 2004.

The claimant contended that the payments made pursuant to the compromise agreement and amended order constituted TTD or another type of payment usable as base period wages for unemployment insurance qualifying purposes. The commission disagrees.

Wisconsin Statute § 108.02(4m), provides as follows:

BASE PERIOD WAGES. "Base period wages" means:

(a) All payments for wage-earning service made to an employee during his or her base period as a result of employment for an employer;

*                     *                     *

(d) For an employee who, as a result of employment for an employer, receives temporary total disability or temporary partial disability payments under ch. 102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under ch. 102, all payments that the employee would have been paid during his or her base period as a result of employment for an employer, but not exceeding the amount that, when combined with other wages, the employee would have earned but for the injury or illness;


The claimant argues that certain provisions of ch. 102 in regard to PPD and TTD, including Wis. Stat. § 102.32(6), which outlines when PPD payments must be made, and Wis. Stat. § 102.42(9), which directs the department regarding its use of an employee vocational/rehabilitative review service, as well as other provisions relating to vocational rehabilitation contained in Wis. Stat. § 102.43(5), which provide that rehabilitative training and counseling may be part of TTD if the department determines additional training is warranted, support his contention. The claimant further points out that, pursuant to Wis. Stat. § 102.61(1m)(c) and (d), employers shall pay the reasonable cost of rehabilitative training as recommended by the counselor, including tuition, fees, books, maintenance and travel expenses. He also points to subsection (1r), which relates to conditions for eligible training. He asserts, in effect, that his rehabilitative plan for a degree in business administration, approved by DVR, qualifies as TTD or its equivalent for purposes of establishing unemployment insurance base period wages.

However, the compromise provided that there was a dispute between the parties as to the nature and extent of disability and the parties agreed to compromise. The compromise agreement does not indicate that the monies paid to the claimant, including the amount directly deposited in the bank, were vocational rehabilitation benefits or even intended to be used for vocational rehabilitation. The sums agreed to be paid in the compromise were not designated as representing any form of temporary disability payment, or any vocational rehabilitation expense. In the compromise, the employer and its insurance carrier did not agree that the claimant was entitled to additional compensation, let alone money for vocational rehabilitation. The employer and its insurance carrier agreed to pay the money to settle any claims the claimant had or may have in the future. The compromise agreement constituted a full settlement of any and all current and future liability of the employer and its insurance carrier under ch. 102, including, but not limited to, Wis. Stat. § 102.61.

The commission therefore finds that in the claimant's relevant base period for the claim at issue, he had $0 base period wages from the construction corporation.


DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, as of week 33 of 2004, the claimant has $0 of base period wages within the base period consisting of quarters 2, 3 and 4 of 2003 and quarter 1 of 2004.

Dated and mailed February 18, 2005
steblgr . usd : 132 : 1 : BR 305  BR 346

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The claimant reasons that because TTD ended when he reached the end of healing, and because the IME found and the insurance carrier paid 2% PPD at each wrist, the remaining amount paid in the compromise must be for vocational rehabilitation which the employer's vocational rehabilitation expert agreed the claimant was in need of. However, that does not mean the payments constitute TTD. The hearing record does not reflect what the claimant's doctor opined was his permanent disability. If the claimant's doctor maintained he had permanent partial disability in excess of 2% at each wrist, it could be argued that a portion of the payments would constitute payment to forgo claims for current and future PPD.(1)

The compromise provides payment not only for existing claims, but for any further claims the claimant may have based on the injury for which he sought compensation. For example, the claimant has compromised his right to be reimbursed in the event he incurs additional medical expenses in treating the injury, and has compromised his right to seek compensation for any claimed safety violation or unsafe employment condition that may have been a substantial factor in his injury. In addition, there is nothing in the compromise or the ALJ's order that requires the claimant to pursue a course of retraining in order to withdraw the $1700.00 per month.

The Worker's Compensation Division documented the compromise payments as PPD equivalent to $184.00 for 432.48 weeks of compensation at the PPD rate of $184.00. However, the $79,576.63 is coded COMPNONC, a code used by the WC Division which stands for "PPD Compromised Nonscheduled." That code is used when a variety of issues have been compromised. If only one issue is compromised a more specific code is used. For example, if vocational rehabilitation was the only issue compromised the code would be "VOCREHABC."

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Footnotes:

(1)( Back ) The claimant submitted to the commission additional documents which include his own doctor's PPD assessment. Consideration of such documents would merely confirm the commission's reasoning. The IME found 2% PPD at the right and left wrists which was paid. But the claimant's doctor found 5% PPD at the left wrist, 5% PPD at the right wrist, 5% PPD at the right shoulder, and 5% PPD at the left shoulder. Thus the amount of PPD to which the claimant was entitled was in dispute.

 

uploaded 2005/02/28