DOUGLAS ALLAN HELKE, Applicant
WEYERHAEUSER COMPANY, Employer
WEYERHAEUSER COMPANY, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division 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 the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed October 27, 2009
helkedo : 185 : 5 ND 5.3, 5.11
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Respondent Weyerhaeuser Company did not contest the administrative law judge's findings regarding the permanent partial disability at the applicant's wrists, or regarding the medical mileage expense. The petition was limited to the issue of how to properly calculate the compensation due for the renewed periods of temporary total disability and temporary partial disability that occurred in 2008. The administrative law judge calculated the compensation due for those renewed periods by comparing the date-of-injury wage to the maximum wage rate for that year, and then applying that same proportion to the temporary disability rate in effect at the commencement of the renewed periods of temporary disability. The applicant was earning the maximum wage on the date of injury, and therefore the administrative law judge utilized the maximum rate for the renewed periods. Respondents argue that the administrative law judge should have calculated the applicant's temporary disability rate based on the wages lost from the new employment at which he was working in 2008, without reference to his date-of-injury wage or his date-of-injury maximum temporary disability rate.
Weyerhaeuser makes the equitable argument that the applicant had retired from its employment in 2006, and was working at a new job for a new employer when the renewed periods of temporary disability occurred on dates beginning in March and ending in September 2008. The argument continues that because the applicant's "actual wage loss" was from his new employer, the renewed periods of temporary disability should be based on the wages from that new employer.
Retirement is not synonymous with a withdrawal from the labor market.(1) Even though the applicant had retired from Weyerhaeuser he had found new employment, and he remained attached to the labor market. Weyerhaeuser's equitable argument that the applicant's temporary disability rate should be based only on the wages lost from this new employment is directly contrary to the provisions of Wis. Stat. 102.43 (7)(c). That statute provides that an individual who sustains a renewed period of temporary disability occurring more than two years after the date of injury, and who has returned to work for at least 10 days preceding the renewed period of disability, and who was entitled to maximum weekly benefits at the time of injury, shall be paid for the renewed period of disability at the maximum rate in effect at the commencement of the renewed period. This description fits the applicant's circumstances exactly, and Wisconsin's Worker's Compensation system is statutory.(2) The administrative law judge properly applied the statute.
The commission additionally notes in passing that while there was wage loss from the applicant's new job, the medical disability causing his renewed periods of temporary disability arose from the effects of his 2004 work injuries. His employment circumstances might have been entirely different had he not sustained the work injuries.
cc:
Attorney Mark W. Parman
Attorney John M. Yackel
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