ARTHUR J RETTKE, Applicant

BELLIN MEMORIAL HOSPITAL, Employer

ST PAUL FIRE & MARINE INS CO, Insurer

The commission issued an amended order dated October 11, 2005 holding that the applicant's weekly wage as of July 8, 2001 was $872.00. The employer appealed the commission's order to circuit court. The parties subsequently stipulated through the order of the circuit court the matter be remanded to the commission to be reconsidered only on the issue of the proper wage rate. Pursuant to the circuit court order the commission established a briefing schedule and both parties submitted briefs on the issue of the correct weekly wage. Based on the evidence in the record and the briefs submitted by both parties the commission finds that the applicant's weekly wage as of July 8, 2001, based on the applicant's hourly wage in 2001 of $18.60 per hour, expanded to a full-time wage of $747.20 per week on an average basis.

The employer contended that the applicant's weekly wage should be computed as a part-time worker and should not be expanded to equate to a 40-hour weekly wage. Wisconsin statute sec. 102.11(1) provides that the wage of an injured employee is expanded to a full-time wage unless the employee is a member of a part-time category of employees or the employee restricts his access to the labor market. (See also Wis. Admin. Code § DWD 80.51.) The evidence in this case did not indicate the applicant was a member of a part-time category of employees. Under Wis. Stat. § 102.11(1)(f) the weekly temporary disability benefits for a part-time employee who restricts his or her availability in the labor market to part-time work and is not employed elsewhere, may not exceed the average weekly wages of the part-time employment. The evidence indicates that following his repeat laminectomy at the L4-5 level on October 30, 1995 the applicant attempted to return to full-time work and was able to work full-time for one week. The applicant testified that he attempted to return to work full-time but he was having pain at the end of the day, and during the day and by the end of the week he was feeling sore and tired and suffered a muscle spasm while driving. The applicant was subsequently put on a four-hour per day work restriction which became permanent.

The employer contends that the applicant restricted his access to the labor market and therefore his wage may not be expanded to a full-time wage. The evidence did not indicate the applicant voluntarily restricted his availability in the labor market. The applicant was willing and ready to work on a full-time basis when he returned to work in 1996, and did work one full week but found that due to the ongoing pain and disability he was unable to continue working on a full-time basis which was also documented by his treating physician. The applicant suffered from an occupational disease type lower back injury which was at least caused in part by his work exposure with the employer. The evidence does not indicate the applicant restricted his work, if offered work that he could perform within his physical restrictions.

The employer contends that if an employee has for whatever reason restricted his or her availability in the labor market to part-time work the law recognizes that it is not unfair to base his or her worker's compensation benefits to the part-time wage rate in effect at the time of injury, since under these circumstances the employee's part-time earnings are a true reflection of earnings. However, under the circumstances presented in this case, the commission finds that the applicant's part-time wages should be expanded to full-time wages because the applicant has not voluntarily restricted his availability in the labor market to part-time work, but rather attempted to return to full-time work, but was unable to perform the work due to his ongoing restrictions caused by his occupational back injury. The evidence does not in any way indicate that the applicant has otherwise limited his availability in the labor market to part-time work, but rather he is limited to part-time work due to the restrictions and ramifications of his work-related occupational back injury. The evidence does not indicate that the applicant voluntarily chose to restrict his availability in the labor market, and under these circumstances the commission agrees with the applicant's assertion that where, as here, the applicant's disabling medical condition arises out of occupational activities which have given rise in part at least to the reduction of work hours following which the activities continue and the disability progresses, the resulting reduction to part-time work is not used to reduce the average weekly wage for benefit purposes. The matter is remanded to the department for calculation and permanent total disability benefits from July 8, 2001 forward using an hourly wage of $18.68 per hour expanded to 40 hours per week at $747.20 per week.

Dated and mailed December 29, 2006
rettkar . wpr : 175 : 9  ND § 4.8  § 4.11

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Richard Fortune
Attorney Patricia A. Chucka

Appealed to Circuit Court.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/01/02