LESLIE FORMELLA, Applicant
MIDWEST EXPRESS AIRLINES INC, Employer
FEDERAL INSURANCE CO, 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, except that it makes the following modifications:
1. In the last full paragraph beginning on the first page of the ALJ's decision, delete "$23,604.96" and substitute "$28,786.48".
2. Delete the material beginning with the last paragraph beginning on page 6 of the ALJ's decision and ending with the first paragraph beginning on page 8 of the ALJ's decision, and substitute:
"The applicant was earning $27.88 per hour at the time of her injury. While the normal full-time work week established by the employer for its flight attendants was less than the 24-hour week presumed by Wis. Stat. § 102.11(1)(a), the applicant herself worked considerable overtime and earned $47,698.26 in the 52 weeks preceding her injury. Her average weekly wage, therefore, is $917.27, as calculated under Wis. Stat. § 102.11(1)(d), which is higher than the wage determined under Wis. Stat. § 102.11(1)(a) under the facts of this case.
"As a result of her June 26, 2007 work injury, the applicant is entitled to compensation for temporary partial disability for the weeks ending on July 1, July 15, July 22, and August 5, 2008 in the total amount of $1,512.20 based on an average weekly wage of $917.27 and a temporary total disability rate of $611.51 (two-thirds of $917.20), calculated as set out in the Appendix attached to this decision.
"The applicant is also entitled to temporary total disability from July 2 through July 29, 2007, a period of one week, and from August 5, 2007 though June 30, 2008, a period of 47 weeks. At the weekly rate of $611.51, the amount to which the applicant is entitled in temporary total disability during these periods is $29,352.84.
"The applicant is also entitled to permanent partial disability at seven percent compared to loss of the left arm at the shoulder, and at seven percent compared to loss of the right arm the shoulder. Applying the multiple injury multiplier under Wis. Stat. § 102.53(4), the applicant is entitled to 77 weeks of permanent partial disability for her bilateral shoulder injury, all of which has now accrued. At the applicable rate of $252 per week (the statutory maximum for injuries sustained in 2007), the applicant is entitled to $20,174 in permanent partial disability compensation.
"The additional amount of disability compensation awarded under this order is $22,252.36, which equals the amount awarded for temporary partial disability ($1,512.20), temporary total disability ($29,352.64), and permanent partial disability compensation ($20,174.00), less the amount previously paid ($28,786.48). The applicant agreed to the direct payment of an attorney fee, set under 102.26 at 18 percent of the additional disability compensation awarded under this order, or $4,005.42 (0.18 times $22,252.36). That amount, plus attorney costs of $223.74, shall be deducted from the additional disability compensation awarded, and paid the applicant's attorney within 30 days. The remainder, $18,023.20, shall be paid to the applicant within 30 days.".
3. Delete the ALJ's Interlocutory Order, and substitute the second and third paragraphs of the commission's Interlocutory Order set out below.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
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 pay all of the following:
1. To the applicant, Eighteen thousand, twenty-three dollars and twenty cents ($18,023.20) in disability compensation.
2. To the applicant's attorney, Michele A. Peters, the sum of Four thousand five dollars and forty-two cents ($4,005.42) in fees and Two hundred twenty-three dollars and seventy-four cents ($223.74) in costs.
3. To Collection Associates (Collection for Anesthesiology Associates of Wisconsin), Three hundred forty-three dollars and forty cents ($343.40).
4. To Athletic & Therapeutic Institute, Twenty-six thousand two hundred fifty-two dollars and fifty cents ($26,252.50).
5. To Biomet, Twenty-six dollars and forty cents ($26.40).
6. To PRM (Collection for Kinex Medical Co.), Three hundred fifty dollars and no cents ($350.00).
7. To OAC (Collection for Medical Diagnostic Imaging), Seven hundred fifty-eight dollars and eighty-six cents ($758.86).
8. To Title 19, c/o Dean Health Insurance, Inc., as reimbursement for work-related medical expenses, One thousand eight hundred eighty-eight dollars and seventy-two cents ($1,888.72).
9. To Humana, as reimbursement for work-related medical expenses, Ten thousand nine hundred ninety dollars and sixty-eight cents ($10,990.68).
10. Jurisdiction is reserved for further findings and awards as are appropriate and consistent with this decision.
Dated and mailed March 8, 2010
formell . wmd : 101 : 1 ND
4.5
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The employer and its insurer (collectively, the respondent) have conceded a compensable injury in this case. Two issues remain on appeal: the calculation of the average weekly wage, and the extent of permanent partial disability.
1. Average weekly wage.
At the time of her injury, the applicant was employed as a flight attendant for the employer. She was paid $27.88 per hour according to her paystubs from the time of the injury. See exhibit J.
Under the worker's compensation law, a worker's average weekly wage--the basis of a worker's disability compensation rate--is generally based on the higher of two calculations: one done under Wis. Stat. 102.11(1)(a) (or, if appropriate, Wis. Stat. 102.11(1)(b) or (c)), and a second calculation under Wis. Stat. 102.11(1)(d).(1)
a. The calculation under Wis. Stat. § 102.11 (1)(d).
The calculation under Wis. Stat. § 102.11(1)(d) is straightforward in this case. That section provides:
102.11(1)(d) Except in situations where par. (b) applies, 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. Calendar weeks within which no work was performed shall not be considered under this paragraph. This paragraph applies only if the employee has worked within a total of at least 6 calendar weeks during the 52 calendar weeks before his or her injury in the business, in the kind of employment and for the employer for whom the employee worked when injured. For purposes of this section, earnings for part-time services performed for a labor organization pursuant to a collective bargaining agreement between the employer and that labor organization shall be considered as part of the total earnings in the preceding 52 calendar weeks, whether payment is made by the labor organization or the employer.
Here, the parties agree that the department correctly calculated the applicant's earnings during the 52 week period preceding the injury to be $47,698.26. Dividing that figure by 52 yields an average weekly wage based on actual earnings under Wis. Stat. § 102.11(1)(d) at $917.27.
b. The calculation under Wis. Stat. § 102.11 (1)(a).
The calculation under Wis. Stat. § 102.11(1)(a) is more complicated. Wisconsin Stat. § 102.11(1)(a) provides in relevant part:
102.11(1)(a) 1. Daily earnings shall mean the daily earnings of the employee at the time of the injury in the employment in which the employee was then engaged. In determining daily earnings under this subdivision, any hours worked beyond the normal full-time working day as established by the employer, whether compensated at the employee's regular rate of pay or at an increased rate of pay, shall not be considered.
...
3. The average weekly earnings shall be arrived at by multiplying the employee's hourly earnings by the hours in the normal full-time workweek as established by the employer, or by multiplying the employee's daily earnings by the number of days and fractional days in the normal full-time workweek as established by the employer, at the time of the injury in the business operation of the employer for the particular employment in which the employee was engaged at the time of the employee's injury, whichever is greater.
4. It is presumed, unless rebutted by reasonably clear and complete documentation, that the normal full-time workweek established by the employer is 24 hours for a flight attendant, 56 hours for a firefighter, and not less than 40 hours for any other employee. If the employer has established a multi-week schedule with regular hours alternating between weeks, the normal full-time workweek is the average number of hours worked per week under the multi-week schedule.
The accompanying departmental footnotes, set out in DWD, Worker's Compensation Law of Wisconsin with Amendments to December 2007 (WKC-1-P, R.03/2008), provide:
40The intent of this provision is that earnings on a normal full-time basis shall be the basis for payment of compensation. Where board or lodging is furnished the employee as a part of the consideration, the fair value of these benefits is to be added to the money wage in computing the compensation due. Any bonus, tip or premium is also part of the wage and must be reported as such by the employer in the first report of injury (form WKC-12).
Where the worker at the time of injury is working part-time, the wage is to be extended to a normal full time basis by multiplying the hourly basis by the number of hours of the full time working day for the employment involved, and by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employee was engaged at the time of the injury.
...
In no case is less than actual average weekly earnings to be taken, provided the employee has worked within each week of at least six calendar weeks during the 52 weeks preceding the injury in the business in the kind of employment and for the employer for whom he or she worked when injured. Except for this provision, overtime is not taken into consideration.
The court has held that where a given number of hours per week are worked the total number of hours is to be taken and that "premium" wage is to be considered in determining weekly wage for compensation purposes. "Overtime" means only time beyond the number of hours usually worked by the employee. In no case shall average weekly earnings be less than 24 times normal hourly earnings at the time of injury.
432001 Wis. Act 37, effective January 1, 2002, created rebuttable presumptions that the normal full-time workweek for flight attendants is 24 hours, 56 hours for firefighters, not less than 40 hours for other employees and the average number of hours worked per week for multi-week schedules with regular hours alternating between weeks.
In this case, the applicant testified she worked about 35 hours per week. The employer and its insurer (collectively, the respondent) challenge this number, asserting that the applicant's own exhibit J establishes only 34.5 hours per week. The respondent further asserts that even fewer weekly hours are shown in its exhibit 3.
Regardless of exactly how many hours the applicant averaged per week worked in the year before her injury, it is clear that it was more than the 24 hours presumed to be a normal full-time workweek for a flight attendant under Wis. Stat. § 102.11(1)(a)4. The applicant argues that she has therefore rebutted the presumption that the "normal full-time workweek established by the employer is 24 hours for a flight attendant."
Indeed, the applicant has proven that she averaged more than 24 hours per week. But that is not the same as saying "normal full-time workweek established by the employer ... for a flight attendant" is more than 24 hours. In fact, the applicant testified that typically flight attendants worked about 20 duty hours a week, that she personally worked about as much as 11/2 flight attendants, and that the average flight attendant did about 80 hours a month. Transcript, page 59.
The record also indicates that the employer guaranteed minimum flight time of 78 hours a month, which shows up on the bimonthly pay stub as 39 "FA Guarantee hours." See exhibit J. The applicant characterized this as "minimum duty time," but added that was the number of hours the average flight attendant worked. Transcript, page 59. Again, this would be about 20 hours a week.
The employer's normal 20-hour workweek for flight attendants was corroborated by the employer's worker's compensation case manager, David Okel, who testified:
Q. And how is over -- How do[] flight attendants receive over time?
A. I'm sorry, I don't --
Q. I know if scheduled for certain period of work hours, how do they go back getting over time or more than their scheduled hours?
A. Flight attendants can pick up extra trips usually and I'm not the person who handles their schedules. But the way I understand it, flight attendants have a guarantee of 78 hours per month and anything over that they would pick up trips here and there or charters would be added on top of that.
Transcript, page 107.
Thus, while the applicant herself may have worked over 24 hours on a regular basis, the hearing record shows that the normal full-time workweek established by the employer for a flight attendant is about 20 hours. A flight attendant may work overtime--in the sense of hours over the regular schedule--by picking up extra trips or charters, as the applicant did here. However, as set out above, "overtime" is not included in the average weekly calculation under Wis. Stat. § 102.11(1)(a).
A 20-hour workweek for a flight attendant normally would be expanded to the 24-hour minimum under Wis. Stats. § 102.11(1)(a) and (f). However, the law does not support expanding the applicant's hours to 40 hours for the purposes of the Wis. Stat. § 102.11(1)(a) on these facts. Stated another way, the statute does not provide that--simply because the applicant works more than the 20 hour schedule provided by the employer, and the 24-hour "normal full-time workweek'" presumed by statute for flight attendants--she is entitled by default to the 40-hour presumption that applies by statute to "other employees".
The commission appreciates that since the September 11, 2001 terrorist attacks, the duties of flight attendants have been changed and expanded. Arguably, flight attendants are more like "any other employee" for whom a 40-hour full-time workweek is presumed under Wis. Stat. § 102.11(1)(a)4. This argument is somewhat supported by one of the department's publications which states that flight attendants are part of a class, but
May also be full-time (scheduled 35 or more hrs) when duties include other than time in flight.
Exceptional Employment and Special Earnings/Wage Situations, http://dwd.wisconsin.gov/wc/insurance/exceptemp_wkc13a.htm.
Here, however, the record does not establish that the applicant worked in any capacity other than as a flight attendant. While some of her duties as a flight attendant necessarily were performed before the aircraft left the ground, they remained the duties of a flight attendant. The applicant did not obtain extra pay by performing duties other than those of a flight attendant. Instead, she simply worked overtime by taking more flights. While perhaps Wis. Stat. § 102.18(1)(d) should be modified to presume a 40-hour full-time workweek for flight attendants, the commission must apply the statute as it is written.
In sum, the average weekly wage under Wis. Stat. § 102.11(1)(a), "arrived at by multiplying the employee's hourly earnings by the hours in the normal full-time workweek as established by the employer" is 20 hours times $27.88 per hour, or $557.60 per week. Expanded under Wis. Stat. § 102.11(a) and (f) to 24 hours times $27.88 per hour, the average weekly wage would be $669.12. Expansion to a 40 hour week, however, is not supported by the facts and or applicable statutes.
c. Conclusion
The average weekly wage calculated under Wis. Stat. § 102.11(1)(d), which is higher than that calculated under Wis. Stat § 102.11(1)(a), applies in this case. The average weekly wage determined under Wis. Stat. § 102.11(1)(d), of course, is based on what the applicant actual earnings in the year preceding her injury, and it picks up the "overtime" the applicant worked beyond the normal 20-hour work week the employer maintained for flight attendants. Again, this calculation yields an average weekly wage of $917.27, which shall be used as a basis for the disability indemnity rates in this case.
2. PPD
The respondent also challenges the ALJ's award for permanent partial disability. The applicant has undergone surgeries on both of her shoulders due to the work injury. After she recovered from surgery, her surgeon, Dr. Pennington, briefly allowed her to return to work without restrictions. When her symptoms returned, the doctor imposed permanent restrictions as of September 17, 2008. The applicant briefly worked in excess of those restrictions until September 28, 2008 when she was laid off. She testified, however, that she had pain while working during that period.
When Dr. Pennington assessed the permanent restrictions against lifting more than 50 pounds above shoulder with no repetitive motion, he also noted a lack of 10 degrees range of motional in all motion planes. He estimated permanent partial disability at 7 percent at each shoulder on this basis. See exhibits C and E, September 17, 2008 note of Pennington.
The respondent's medical examiner is Marc Aschliman, M.D., who examined the applicant on November 3, 2008. He noted the applicant had a right shoulder adhesive capsualitis and a left shoulder labral tear, both caused by repetitive work exposure, and both treated surgically with excellent results. He noted Dr. Pennington's initial release to work without restriction and a full range of motion. Accordingly, he opined the applicant had no permanent partial disability.
The ALJ, who had the opportunity to observe the applicant as she testified, believed the applicant's testimony that she had pain upon returning to work at full duty. In addition, Dr. Pennington noted a loss of range of motion in all planes. Given those findings, and the two shoulder surgeries, Dr. Pennington's disability estimate is entirely reasonable and adopted by the commission.
3. Recalculation of award.
The commission recalculated the disability award to reflect the change in temporary disability compensation amounts due to the lower average weekly wage rate adopted by the commission. The recalculated rate also reflects the additional accrual of permanent disability compensation, given passage of time since the ALJ issued her order.
The commission also amended the ALJ's preliminary recital with respect to the amounts paid prior to the hearing by the respondent. While the lower figure ($23,604.96) stated in the preliminary recital of the decision corresponds to the amount she cited, without objection, when stating the issues at the beginning of the hearing, the ALJ's decision later cites the higher figure ($28,786.48) in explaining the award. Since neither party objected to the ALJ's use of the higher figure in calculating the award, the commission has adopted it on the assumption they agree it represents more up-to-date information than was provided to the ALJ at the hearing.
Finally, the commission did not confer with the presiding ALJ concerning the credibility of the witnesses who testified at the hearing. The calculation of the applicant's average wage presented only legal questions, as the material facts on the issue were uncontroverted. The commission did not reach a different result than the ALJ based on a different impression of the credibility of the witnesses testifying before her.
cc:
Attorney Michele A. Peters
Attorney Richard H. Porter
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