THOMAS C ROTH, Applicant

JONES DAIRY FARM, Employer

FIREMANS FUND INS CO, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on November 2, 2007. Jones Dairy Farm and Fireman's Fund Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are the average weekly wage applicable to the conceded work injury of September 16, 2002, as well as nature and extent of disability and liability for medical expense.

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

The administrative law judge found the average weekly wage was $717.12, which he computed by dividing the amount the applicant earned in the 52 weeks prior to his injury ($37,290.14) by 52. This method of computing average weekly wage is set forth in Wis. Stat. § 102.11(1)(d). ⁽¹⁾

The applicant asserts that the ALJ should have applied Wis. Admin. Code ch. DWD 80.51(1), ⁽²⁾

The ALJ's computation is based on an informally-created department policy that the 90-day (or 13-week) rule set forth in DWD 80.51(1), is inapplicable if during the 90-day period, the worker's scheduled work hours vary by more than five hours per week. During the weeks in question the applicant's weekly hours varied from as low as 35.30 to as high as 63.70. The average approximated 50.

As noted by the administrative law judge, another method of computing average weekly wage is found in Wis. Stat. § 102.11(1)(a)3. That involves multiplying the injured worker's hourly wage by the number of hours in the normal full-time workweek as established by the employer, generally 40 hours. The applicant's hourly wage was $13.80, which for a 40-hour week would compute to $552.00. The department appropriately applies the calculation method that results in the highest average weekly wage.

The calculation method resulting in the highest weekly wage in the applicant's case involves application of the unambiguous provisions of Wis. Admin. Code ch. DWD 80.51(1). There is no provision in that code rule relative to a week-to-week variance in the number of work hours. The commission infers from the plain language of the rule that its intent is to address those circumstances in which an individual's normal work hours were increased or decreased for a substantial period of time prior to the date that individual sustained his/her work injury. The rule establishes a 90-day (13-week) period as the measure of such substantial period of time. While application of this rule may not always result in the most equitable result, its provisions are straightforward, and the rule constitutes a reasonable response to the issue of fluctuating hours. It applies more specifically to the applicant's circumstances than does any other provision in the statutes or the rules, and therefore the commission will apply it in this case.

The department's informal policy regarding week-to-week variances in hours appears to constitute an attempt to make a substantive change in the method of calculating average weekly wage under DWD 80.51(1). However, such changes should be accomplished by statute or through the formal, administrative rule-making process set forth in Chapter 227 of the statutes.⁽³⁾  Recently, the court of appeals reversed a commission decision that had approved the department's application of the offset provisions of Wis. Stat. § 102.44(5), based on the department's interpretation of a statutory phrase that was inconsistent with the plain language of that phrase.⁽⁴⁾  The court acknowledged the department's and the commission's practical motives in interpreting the statute as they had, but held that the plain meaning of the statute must be enforced, and that it was for the legislature to make substantive changes to the provisions of the Worker's Compensation Act. Similarly, in the applicant's case the department's interpretation of DWD 80.51(1), is at odds with the plain meaning of that rule, and for that reason must be rejected by the commission.

It is worth noting that as the applicant has argued in his petition, the department's interpretation of the rule could lead to absurd results. For instance, an individual who worked each of 12 weeks at 55 hours per week, but in one week worked only 49 hours, would lose the protection of the rule based on the one week of 49 hours. An individual who worked on 35 hours for 12 weeks, but 41 hours in one week, might receive a higher average weekly wage than would be appropriate.

The applicant's average weekly wage for the compensable work injury on September 16, 2002, was therefore $971.14, resulting in the maximum temporary total disability rate of $647.00 per week. The administrative law judge found that the periods claimed for temporary disability (temporary total disability and temporary partial disability) were conceded, but his order does not set forth the dates and amounts claimed for this compensation, nor does the hearing record include that information. Neither is there any indication one way or the other concerning the applicability of the social security offset provisions of Wis. Stat. § 102.44(5), which the file does indicate were applicable in a previous compensation claim. Rather than attempt to guess at the exact dates and figures due, the commission will remand the matter to the department for recalculation of the amounts due in accordance with its finding of the maximum temporary total disability rate.

It is conceded that the applicant sustained 10 percent permanent functional disability of the whole body, which at the applicable rate of $212.00 per week results in a total of $21,200.00. Respondents have paid $53,610.00 in disability payments, for which they shall receive a credit against payments due. The applicant's attorney is entitled to a 20 percent fee against the additional amounts due after offset of the $53,610.00 previously paid.

The applicant also incurred reasonably required medical expense of $121.89 from the U.W. Medical Health Foundation.

The applicant may require additional medical treatment and/or sustain additional disability, including loss of earning capacity, and therefore jurisdiction will be reserved with respect to all issues other than those finally resolved in this decision.

NOW, THEREFORE, this

Additionally, the matter is remanded to the department for recalculation of the amounts due the applicant and his attorney for temporary disability and permanent functional disability, in accordance with the above findings that include offset of previous payments. After it completes its recalculations, the department shall issue a formal order requiring immediate payment of the amounts calculated to be due the applicant and his attorney. That order shall be appealable only with respect to the specifics of the department's recalculation. The commission's findings regarding average weekly wage, the $129.89 in medical expense, and the 10 percent permanent functional disability sustained as of the date of hearing, are final.

Jurisdiction is reserved for such further findings and orders as may be required.

Dated and mailed Juen 26, 2008
rothth . wpr : 185 : 8 ND § 4.5

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: No credibility issues arose in the commission's review of this case.

cc: Attorney Russell W. Devitt
Attorney Richard T. Mueller

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(1)( Back ) Wis. Stat. § 102.11(1)(d) provides in relevant part:

...average weekly earnings shall in no case be less than actual average weekly earnings of the employee for the 52 calendar weeks before his or her injury within which the employee has been employed in the business, in the kind of employment and for the employer for whom the employee worked when injured.

(2)( Back ) Wis. Admin. Code ch. DWD 80.51(1) provides:

(1) In determining daily earnings, if the number of hours a full-time employee worked had been either decreased or increased for a period of at least 90 total days prior to the injury, then this revised schedule worked during those 90 days shall be considered to be normal full-time employment.

(3)( Back ) See Schoolway Transportation Company, Inc. v. Division of Motor Vehicles, 72 Wis. 2d 223, 227, 240 N.W.2d 403 (1976).

(4)( Back ) Michels Pipeline Construction and Bituminous Casualty Corp. v. LIRC and David P. Benites, Ct. App. Case No. 2007AP607 (Dist. II), March 12, 2008 (recommended for publication).

uploaded 2008/07/18