Wis.LIRC WC Decision: Springer, Gerald - November 6, 2007 - ND � 5.40 -- In claim for vocational rehabilitation benefits, where applicant was required to perform assignments, prepare charts, complete problems, and complete tests and quizzes during the two-week period prior to his first day of class, these pre-semester assignments were sufficient to meet the statutory requirement under Wis. Stat. � 102.61 that the applicant be receiving instruction in a course of instruction on a regular basis during the weeks in question.

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

GERALD SPRINGER, Applicant

UNITED PROPERTIES, Employer

STATE FARM FIRE & CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-044473

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order dated November 21, 2006. Briefs were submitted by both parties. At issue is whether the applicant is entitled to benefits for a two-week period before each semester because the training program he was enrolled in is an accelerated program which requires assignments before the start of each semester.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the Findings and Interlocutory Order of the administrative law judge. The commission makes the following:

MODIFIED FINDINGS OF FACT

Delete the second, third, fourth, fifth and sixth sentences in the first paragraph on page 4 of the administrative law judge's Findings of Fact and substitute therefor:

The pre-semester assignments are sufficient to meet the requirement to provide for instruction on a regular basis for each of the weeks claimed except for the week of December 21, 2004 to December 28, 2004, and from December 21, 2005 to December 28, 2005. Therefore the applicant is entitled to benefits for 12 weeks claimed before each semester in the accelerated program. The retraining benefits are being paid at the rate of $256.00 per week while the semester is in session. Therefore, the applicant is entitled to 12 weeks of benefits due for the pre-semester work and the employer is directed to pay the sum of $3,072.00.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part in accordance with the above findings. Within 30 days from the date of the commission's order, the employer and its insurer shall pay to the applicant as accrued additional retaining benefits the sum of $2,457.60; and to the applicant's attorney the sum of $614.40 as attorney's fees. Additionally, respondent and insurer shall pay reasonable and necessary medical expenses related to this work injury along with mileage expenses. The employer and insurer are entitled to take a credit against the amount to which the applicant is otherwise entitled under this order, for any corresponding payments of Worker's Compensation Benefits which have all ready been made. Jurisdiction is reserved for such further orders or awards as may be warranted.

Dated and mailed November 6, 2007
springe . wmd : 175 : 8 ND � 5.40

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Pursuant to Wis. Stat. § 102.61, an employee is entitled to receive and has received compensation under the chapter, and is entitled to and is receiving instructions under 29 USC 701 to 797(b), as administered by the state in which the employee resides, shall in addition to other indemnity be paid the actual and necessary expenses of travel, and the actual and necessary cost of maintenance. Also, pursuant to Wis. Admin. Code § DWD 80.49 Sub. 4(b) Retraining Program means a course of instruction on a regular basis, which provides an employee with marketable job skills or enhances existing job skills to make them marketable.

The issue in this case is whether the applicant was receiving instruction in a course of instruction on a regular basis during the weeks in question prior to the start of the regularly scheduled semester in his accelerated Supervisory Management-Training Program.

In Johnson v. LIRC, 177 Wis. 2d 736 (Ct. App. June 16, 1993) the Wisconsin Court of Appeals dealt with the issue of what constitutes instruction on a regular basis under the Act. In Johnson, the injured employee qualified for vocational rehabilitation benefits and was certified for home based training. The employee had previous work experience sewing and under the home based enterprise program, the employee would become self-employed and self-supporting as a tailor. DVR purchased the sewing equipment and supplies for the employee, and she received instructions on the use of the equipment from the equipment retailer. The retailer was also available for consultation if the employee experienced any problems.

In the Johnson case, the employee applied for retraining benefits for the orientation services she received from the retailer in the use of her sewing equipment. In the Johnson case, the commission affirmed the denial of eligibility for retraining benefits, and stated that the statute and rules clearly envision the employee would be enrolled in a formal class of training such as a retraining program in order to be eligible. The commission noted that the program established for the employee by DVR did not provide instruction which required regular attendance, and was merely an orientation to operate the equipment, which utilized her existing skills to establish a home based business.

The court of appeals in affirming the commission in the Johnson case pointed out that its holding was not as narrow as the commission's interpretation. The court of appeals stated that recipients of benefits under Wis. Stat. § 102.61 are not limited to those receiving the retraining services in DVR, and includes recipients of job placement, on the job training, and home based enterprise services, who will be eligible if their individualized written rehabilitation programs provide for instruction on a regular basis. The court of appeals noted in the Johnson case that if the employee's home based enterprise program required that she take a class in accounting, such training would qualify under Wis. Stat. § 102.61. Further, the court of appeals also noted that the statute does not require that the training be taught by educational institutions or be limited to classroom instruction only. The court of appeals stated that instruction which takes place on a regular basis may qualify.

The administrative law judge concluded in our current case that the pre-semester assignments were sufficient to meet the statutory requirement and concluded the applicant is entitled benefits during the two-week period before each semester in the accelerated program. The commission agrees. Under the facts presented in this particular case, the applicant has established that he was receiving instruction in his accelerated program during the two-week period prior to each semester. The applicant presented uncontradicted testimony that he was required to perform assignments, prepare charts, complete problems, and complete tests and quizzes during the two-week period prior to his first day of class. Under the specific auspices of the accelerated program, as outlined at Waukesha Area Technical College, such assignments for the two-week period prior to the semester fall under the definition of receiving instruction under the statute and meets the requirement for instruction on a regular basis.

The court of appeals made clear in the case of Johnson v. LIRC that the statute does not require the training be limited to classroom instruction only but rather to instruction which takes place on a regular basis. The guidelines presented for the accelerated program clearly indicate that all the students are expected to do readings and prepare materials on a consistent basis during the two-week period prior to the start of the actual classroom attendance for each semester. The guidelines appear to be quite strict, and if a student fails to appear for their first class that student will be dropped from the accelerated program.

The employer argues in its petition for commission review that it should not be required to pay for any preparation required for the classes prior to the start of the actual semester. The employer notes that it has paid vocational rehabilitation benefits for each week of school except for the 14 weeks of the interim between semesters. However, since the applicant is enrolled in an accelerated program the applicant is required to comply with the requirements of that program. The commission finds that in this case the applicant's activities in taking quizzes and performing written work assignments, as well as preparing papers, charts and presentations during the two-week period prior to each semester, meets the requirement for receiving instruction on a regular basis under the statute.

The applicant testified that it could take a week or two to prepare the reports or quizzes required by the professors and he always needed the full two weeks. The applicant also testified that he sometimes had to work with partners or in teams in which he was required to meet at school during the two weeks prior to the semester.

Under the facts specifically delineated in this case, individuals enrolled in the accelerated program and the Supervisory Management Program at Waukesha Technical College, are receiving instruction on a regular basis during the two weeks prior to the start of the semester according to the guidelines and requirements of that program. The fact that the students are not required to sit in the classroom during the two weeks prior to the semester is not required under the holding in Johnson v. LIRC to receive benefits.

The remaining issue in this case involves the three-week period between the end of the fall semester and the beginning of the winter session in January 2005 and January 2006. The applicant did submit a copy of a letter from Ms. Felder dated December 12, 2005, outlining the assignments which were to be completed prior to the first day of class during the following semester for the class in Principles of Negotiations. The applicant testified that pre-class work could take a week or two to prepare the quizzes, and he always needed the full two weeks. The guidelines for accelerated classes indicate it is the student's responsibility to complete the assignment before the first class, and most assignments are made two weeks before the start of class.

In this case, there are three weeks in the semester break between December 21, 2004 and January 11, 2005, and December 21, 2005 and January 11, 2006. The first week of the winter break from December 21, 2004 to December 28, 2004 and from December 21, 2005 to December 28, 2005, encompasses the Christmas holiday. The applicant testified only that his pre-class work involved two weeks for preparation and not three, and therefore the pre-class assignment would not have been an issue during the week of Christmas in either 2004 or 2005. Therefore the commission reverses the administrative law judge's determination that the applicant is eligible for payment of benefits pursuant to Wis. Stat. § 102.61 for the week of December 21, 2004 to December 28, 2004, and from December 21, 2005 to December 28, 2005.

cc:
Attorney Richard A. Fortune
Attorney Michael C. Frohman

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