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

JEFFREY A TRUESDALE, Worker

CURWOOD INC, Employer

FIDELITY & GUARANTY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2008-013039


This matter came before the Worker's Compensation Division of the Department of Workforce Development (department) acting under its authority under Wis. Stat. § 102.17(2). At issue is the liability of the employer and its insurer (collectively, the respondent) for temporary disability compensation. Following a pre-hearing conference, an administrative law judge (ALJ) for the department issued his decision under Wis. Stat. § 102.18(1). 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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

As noted above, there has been no hearing. However, there is no real dispute about the facts, and neither party objects to proceeding on this issue without a hearing.

The employer schedules its workers on a 3-weeks on, 1 week off, schedule. The injured worker in this case was working on this schedule before his injury.

On December 8, 2007, the worker hurt his knee at work. The respondent's medical expert diagnosed a knee strain, and opined the worker would need work restrictions until June 8, 2007. The file does not contain an opinion from the worker's treating doctor or other medical expert; again, this case arises on the department's own motion. The worker never missed time from work for his injury, but has continued to work his 3-on, 1-off, schedule.

The respondent has refused to pay temporary total disability during the "off" weeks following the injury while the worker remained in a healing period subject to restrictions. As noted above, the department, under its authority to monitor claims on its own volition, investigated the nonpayment. Following a prehearing conference, the ALJ issued an order requiring the respondent to pay temporary total disability for five of the "off weeks" and to pay a small amount of temporary partial disability for one of the "on weeks."

The respondent argues that since the worker is back working a normal full-time schedule--the same schedule he was working before he was injured--he should not be getting temporary total disability for the "off week." The respondent asserts that paying temporary total disability for the off week violates the basic principle that temporary disability compensates actual current wage loss--and here the worker has no real wage loss. The ALJ (and the department1(1)) take the position that an employee receives temporary total disability for any calendar week during his or her healing period when he or she is not offered work, regardless of what the normally-scheduled hours are.

The statutes and administrative code sections cited by the respondent and the ALJ provide:

Wis. Stat. 102.43 Weekly compensation schedule. If the injury causes disability, an indemnity shall be due as wages commencing the 4th calendar day from the commencement of the day the scheduled work shift began, exclusive of Sundays only, excepting where the employee works on Sunday, after the employee leaves work as the result of the injury, and shall be payable weekly thereafter, during such disability. If the disability exists after 7 calendar days from the date the employee leaves work as a result of the injury and only if it so exists, indemnity shall also be due and payable for the first 3 calendar days, exclusive of Sundays only, excepting where the employee works on Sunday. Said weekly indemnity shall be as follows:

(1) If the injury causes total disability, two-thirds of the average weekly earnings during such disability.
(2) If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to the injured employee's average weekly wage at the time of the injury.
(3) If the disability caused by the injury is at times total and at times partial, the weekly indemnity during each total or partial disability shall be in accordance with subs. (1) and (2), respectively.
(4) If the disability period involves a fractional week, indemnity shall be paid for each day of such week, except Sundays only, at the rate of one-sixth of the weekly indemnity.

Wis. Admin. Code § DWD 80.47 Medical release of employee for restricted work in the healing period. Even though an employee could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employee is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period.

Clearly, the statutory scheme sets up a payment scheme based on a weekly rate, and provides that compensation is paid at the full rate when an employee is totally disabled. The commission reads the language from Wis. Stat. 102.43 (intro.)

If the injury causes disability, an indemnity shall be due as wages commencing the 4th calendar day from the commencement of the day the scheduled work shift began ... and shall be payable weekly thereafter, during such disability.

to mean that indemnity for temporary disability shall be paid at a weekly rate or on a weekly basis during the healing period. Wisconsin Admin. Code § 80.47 provides further that if an employee is able to work with restrictions, but the employer provides no work, the employee remains totally disabled. However, the commission does not read the statutes and rule to mean that a temporary total disability must be paid for every calendar week in the healing period in which an employee is not scheduled to work, regardless of an employer's normal scheduling practices and regardless of an employee's actual wage loss.

As the respondent notes, the Supreme Court emphasized the importance of actual wage loss in Employers Mut. L. Ins. Co. v. Industrial Commission, 230 Wis. 670, 681, 284 N.W. 548 (1939):

When an employee is injured and is wholly or partially disabled he ceases ordinarily to earn wages and as a result sustains a wage loss. Under such circumstances he is entitled to compensation. But if his employer continues to pay him his full wages he cannot collect compensation from him because he has in fact sustained no wage loss. He is, of course, entitled to compensation, but if he is paid full wages during the time of his disability he obviously has sustained no wage loss. Whether the employer carries his own compensation risk or has it carried by an insurance company, can be of no materiality. One who has sustained no wage loss cannot recover compensation based on a theoretical loss of wages. Compensation must bear some reasonable relation to the loss which an injured employee has sustained.

In Employers Mut., the employee was not provided with work. Despite the fact there were calendar weeks in which the employer did not provide work, the court held the employee was not entitled to temporary disability compensation because the employer continued to pay his full wages and he had no wage loss. On this point, the court noted that one cannot recover compensation for temporary disability "based on a theoretical loss of wages."

The commission declines to reject the underlying rationale of the Employers Mut. case because of its age or the subsequent promulgation of Wis. Admin. Code DWD 80.47.(2) A subsequent case states essentially the same proposition:

... The amount to which the employee may be entitled for partial disability must be based upon an actual wage loss sustained, for it is provided in sec. 102.43 (2), Stats. 1947, that if an injury causes disability to an employee an indemnity shall be due as follows:

"If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to his average weekly wage at the time of his injury."

The statute means what it says, that for a partial disability "one who has sustained no wage loss cannot recover compensation based on a theoretical loss of wages." [citing Employers Mut., supra].

Delta Oil Co. v. Industrial Commission, 273 Wis. 2d 265, 291 (1956).

The commission concludes that when an employee returns to or continues in the same three weeks on, one week off swing schedule that he worked before his injury, the employer is providing or furnishing work in all four weeks of the period. To find that an employee who continues to work in an established swing schedule has a total wage loss during the off-week in the schedule is to assume theoretical wage loss. Taking that approach to its logical conclusion, an employee would get a full temporary total disability payment for the "off week" in the swing schedule even if he or she made exactly the same wages (or even more) during the "on-weeks" following his injury.

In this case, the worker's average weekly wage is $1,348.01. That figure was derived under Wis. Stat. 102.11(1)(d) based on a 52-week average of his wages in the 52 weeks before his injury of $71,968.74.(3) In fact, he earned those wages in only 39 of those weeks. If a worker's "average weekly wage" is based on a 52-week average, then it seems logical that his "wage loss" (calculated based on average weekly wage minus wages actually earned) for the purposes of his temporary disability compensation should, if practical, be based on a 52-week basis as well.

In this case, then, the wages that the worker earned in the 4-week period of the swing schedule shall be averaged, and then compared to the worker's average weekly wage of $1,384.01. If the 4-week average of the wages earned is less than the average weekly wage, temporary partial disability should be paid based on the wage loss percentage as set out in Wis. Stat. § 102.43(2) for each week in that period. If the 4-week average exceeds the average weekly wage, there is no actual wage loss and no compensation for temporary disability is due.

The commission acknowledges that its approach involves some delay because the 4-week average cannot be determined until the 4 weeks have passed. Further, the commission's approach will probably require adding in weeks after the end of healing to get a full 4-week average for the last cycle. Finally, in the "on-weeks" the worker will receive more than his average weekly wage when the temporary partial disability compensation is added to his actual earnings wage (though this is offset by the absence of any actual wage in the off-week.) However, the approach best reconciles the facts of this particular case with the supreme court's mandate that temporary disability compensation "bear a reasonable relationship to a worker's actual wage loss" and not be based on a "theoretical loss of wages."

The record as it stands does not provide the amount of the worker's earnings in the full twenty weeks necessary to calculate compensation due for the five cycles at issue. The commission therefore calculates the temporary partial disability for the four cycles that it does have earnings figures, and reserves jurisdiction if there are problems for the remaining cycles which would run through the end of healing on June 8, 2007.

Based on the foregoing, the commission determines that the worker is entitled to compensation for temporary partial disability for the periods (both dates inclusive) from:

This totals $1,931.04. The respondent shall calculate and pay compensation for the remainder of the worker's healing period in the manner set out above.

This order shall be left interlocutory solely on the issue of the calculation of the worker's temporary disability during his healing period.

NOW, THEREFORE, the Labor and Industry Review Commission makes this:

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall:

1. Pay to the worker, Jeffrey A. Truesdale, One thousand nine hundred thirty-one dollars and four cents ($1,931.04) in disability compensation.

2. Calculate and pay temporary disability compensation for the remainder of the worker's healing period in the manner set out above.

Jurisdiction is retained to permit further orders and awards as are necessary and consistent with this decision.

Dated and mailed December 28, 2009
trusedj . wrr : 101 : 1 ND 5.4, 5.10

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This case presents a purely legal issue. No hearing was held and the facts are undisputed. Consequently, a credibility conference with the ALJ was unnecessary.

cc: Attorney Kurt Anderson

[Editor's note--A chart is omitted.]



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Footnotes:

(1)( Back ) As indicated in letters from department personnel prior to the prehearing conference.

(2)( Back ) In an even older case, the court held that a statutory provision purporting to authorize payment of compensation that does not bear a reasonable relationship to a worker's actual wage loss would give rise to grave constitutional questions. Struck & Irwin Fuel Co. v. Industrial Commission, 269 N.W.2d 319, 323 (1936).

(3)( Back ) The department's website also indicates that it averages wages over the cycle used when an employee works a "swing schedule" for the purposes of determining average weekly wage. http://dwd.wisconsin.gov/wc/insurance/training/ttd/full_time_ee_alt.htm/garu

 


uploaded 2010/02/01