KRISTIN ROSSOW, Applicant
WEST BEND COUNTRY CLUB, Employer
WEST BEND MUTUAL INSURANCE CO, Insurer
The applicant and the respondents (West Bend Country Club and West Bend Mutual Insurance Company) each submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on March 22, 2006. Briefs were submitted by the parties. At issue are the correct average weekly wage, and the amount of temporary disability due the applicant as the result of a conceded work injury to her left knee that occurred on October 4, 2003.
The commission has carefully reviewed the stipulation and the arguments submitted by the parties and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
At the time she was injured, the applicant was also working at a full-time job as a medical records clerk for Aurora Health Center. She did not lose any time from either job until she underwent knee surgery on January 13, 2004, but the surgery rendered her unable to work at either job until July 6, 2005. On that date, she reached a healing plateau and returned to her employment with WBCC, but she was physically unable to return to a full schedule. She had lost her job with Aurora Health Center on April 15, 2004, after her allotted medical leave had expired.
The first issue is average weekly wage. Respondents assert that under Wis. Stat. § 102.11(1)(a), the applicant's "hourly earnings" for WBCC were $6.00 per hour, and that the normal full-time schedule for the employer's waitresses is 32 hours per week, which respondents argue results in an average weekly wage of $192.00 (6 x 32). Of course, this ignores the department's and the commission's longstanding interpretation of the statute to include tips in the calculation of average weekly wage. Also, the assertion that 32 hours is full-time for the employers' waitresses is based on the first sentence of paragraph 10 of the stipulation which reads:
"West Bend Country Club contends normal full-time employment for waitresses is 32 hours per week, according to its Employee Handbook and provisions regarding eligibility for health-care and other fringe benefits."
The applicant denies that this constitutes a stipulation that full-time work as a waitress for the employer is less than 40 hours. She asserts that all the above quote indicates is that for purposes of eligibility for health care and other fringe benefits, a full-time workweek is 32 hours. The commission agrees with the applicant, and would add that the sentence begins with WBCC "contends," which is merely acknowledgement of a contention, not a true agreement as is found in the language of the other paragraphs in the stipulation. Respondents have not rebutted the presumption of Wis. Stat. § 102.11(1)(a)4., that a 40-hour workweek applies.
Accordingly, the average weekly wage must be calculated under Wis. Stat. § 102.11(1)(a), by multiplying (the hourly wage plus tips/incentives) times (40 hours). The administrative law judge accepted the department's calculation, which uses this method, except that instead of using 10 weeks for calculating the average tip/incentive rate, they used 8 weeks. This is apparently because during the first two weeks of the 10-week period no tips/incentives are listed as having been received, presumably because these were the first two weeks of the applicant's employment. Using 8 weeks, the average tip rate is $5.68 per hour, but using 10 weeks the rate comes out to $4.62 per hour. The department's calculation method is not strictly in keeping with the statutory language to use an employee's "hourly earnings," (1) and eliminates two weeks of a 10-week calculation period, making a significant difference. The applicant had only asked that the $4.62 figure be used. Accordingly, the commission will modify the calculation to use $4.62, which when added to the $6.00-per-hour wage makes an average hourly rate of $10.62. Multiplying that rate times 40 results in an average weekly wage of $424.80, and a temporary total disability rate of $283.20 (the department's calculation yielded a TTD rate of $311.58).
The applicant argues that for the period after she went back to work for WBCC on August 8, 2004, her temporary partial disability should be computed based on the average weekly wage she was earning both from WBCC and from Aurora Health Center. She cites language from Wis. Stat. § 102.43(2), which refers to the proportion the "actual wage loss" bears to the average weekly wage, and argues that wages from the second job should be included in the concept of actual wage loss. There is no authority for this interpretation, which would be inconsistent with the statutory scheme to hold employers liable for wage loss incurred as the result of injuries sustained by employees in their employment. The phrase "actual wage loss" clearly is intended to refer to wage loss sustained from the employer in whose employment the employee is injured. The statutory scheme may seem inequitable to an individual in circumstances such as the applicant has found herself, because she lost a full-time job due to a work injury sustained in her part-time employment. However, the Worker's Compensation Act is statutory, and it provides no exception for an individual in the applicant's circumstances. The Act is a compromise between the opposing interests of employers and employees, and an effort by the legislature to balance competing societal interests. (2) In this context, it should be recognized that the expansion of the applicant's part-time hours to a 40-hour workweek, and the resulting increase in her average weekly wage, to a great extent addresses the equities of her circumstances.
The correct average weekly wage is $424.80. The stipulated period of temporary partial disability is from August 8, 2004 to July 6, 2005. The stipulation includes the stated fact that respondents have paid "$7,479.22 in temporary total disability and temporary partial disability." The parties have asked that after resolving the average weekly wage issue, the commission calculate the amounts of temporary partial disability and temporary total disability due, minus the $7,479.22 previously paid. The stipulation does not specify for what period(s) the $7,479.22 was paid, or how or if that amount was divided between temporary total disability and temporary partial disability. The commission is disinclined to make the calculations for the parties, only to have one or both of them request an amended order because the commission made incorrect assumptions based on the evidence available. In order to make this decision appealable, the commission will order payment of $100.00 towards the temporary disability benefits remaining due, minus a 20 percent attorney's fee. The applicant shall recompute the temporary disability due in accordance with the commission's finding of an average weekly wage of $424.80, and submit those calculations to the respondents for immediate payment. Should respondents have a legitimate basis for disputing the calculations, the department shall retain jurisdiction to resolve such dispute.
NOW, THEREFORE, this
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Daniel J. Kelley
Attorney William R. Sachse
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