CONNIE HICKS, Applicant
GREATER BELOIT PUBLISHING CO, Employer
SOCIETY INSURANCE CO, Insurer
In December 2008, the applicant filed an application for hearing regarding a left shoulder injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on January 5 and March 8, 2010.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and the parties stipulated to an average weekly wage of $258.26. At issue was whether the applicant was an employee of the named employer. Also at issue was whether the applicant sustained an injury arising out of her employment with the employer, while performing services growing out of an incidental to that employment. If such an injury is established, ancillary issues include the nature and extent of disability, and the respondent's liability for medical expenses.
On April 15, 2010, the ALJ issued her decision. The respondent filed a timely petition for commission review. 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:
1. Is the applicant a covered employee?
a. Facts.
The applicant delivers newspapers for the employer, which operates a daily newspaper. The first issue in this case is whether the applicant is an employee of the employer.
The respondent offered the testimony of Corey Scales, the employer's distribution manager, who supervises carriers (the people who deliver newspapers for the employer.) The employer classifies the routes handled by the carriers as motor routes or foot routes. Motor routes have to be done by vehicle because a person cannot get the papers delivered on time by foot.
The employer does not care what kind of vehicle the carrier on a motor route uses, nor does it care whether the motor carriers use subcontractors to make deliveries. The applicant did obtain substitute carriers to deliver her route when she was injured or otherwise unavailable, specifically her son (Paul), a "neighbor kid" (Josh), and a third person (Crystal). She paid them whatever she got from the employer. The employer did not tell her how much to pay. However,
Mr. Scales testified that the employer did have problems with the way one of the substitute carriers did his job.
The employer has a customer list that remains the property of the employer. The employer determines which customers carriers will deliver to, and it sets up the routes. Carriers can try to sell subscriptions on their routes to increase their profits.
The employer determines where at a given household (the porch, the front stoop, etc.) the paper should be delivered. Delivery times are set by the employer. According to Mr. Scales, while the employer gives the drivers a route with delivery customers on it (and what it thinks would be the fastest delivery pattern), the employer does not care what order the motor carrier or driver does the route in. According to the applicant, she pretty much had to follow the order of delivery provided by the employer, as she had to deliver to businesses before residential customers and was criticized by the employer if she did not.
If a carrier failed to deliver a paper on time, he or she could be fined. Customers can complain to the employer if there is a delivery problem; in fact, the employer maintains a website to handle complaints. The employer does give the carriers a handout they can provide to their customers so the customers can contact the carrier directly. However, aside from that, there really is no easy way for customers to contact the carriers directly. If a customer contacts the carrier directly about a missed delivery, the carrier would not be penalized, but if he contacted the newspaper directly, the carrier would be.
By and large, customers pay the employer directly. The applicant apparently did have one customer she collected from directly.
The employer pays the carriers both per paper delivered ($0.099 per), and a mileage amount (21 cents per mile) based on route mileage as calculated by the distribution manager. It does not appear to the commission that the written agreements the applicant has with the employer actually provides for payment of the mileage.
The applicant did not make deliveries for any entity other than the employer. The only material or equipment she used was her car, which was her own personal vehicle.
b. Applicable statute.
For the purposes of determining whether the applicant is an employee of the employer, the relevant statutes are:
102.07 Employee defined. "Employee" as used in this chapter means:
(6) Every person selling or distributing newspapers or magazines on the street or from house to house. Such a person shall be deemed an employee of each independent news agency which is subject to this chapter, or (in the absence of such agencies) of each publisher's (or other intermediate) selling agency which is subject to this chapter, or (in the absence of all such agencies) of each publisher, whose newspapers or magazines the person sells or distributes. Such a person shall not be counted in determining whether an intermediate agency or publisher is subject to this chapter.
(8) (a) Except as provided in par. (b), every independent contractor is, for the purpose of this chapter, an employee of any employer under this chapter for whom he or she is performing service in the course of the trade, business, profession or occupation of such employer at the time of the injury.
(b) An independent contractor is not an employee of an employer for whom the independent contractor performs work or services if the independent contractor meets all of the following conditions:
1. Maintains a separate business with his or her own office, equipment, materials and other facilities.
2. Holds or has applied for a federal employer identification number with the federal internal revenue service or has filed business
or self-employment income tax returns with the federal internal revenue service based on that work or service in the previous year.
3. Operates under contracts to perform specific services or work for specific amounts of money and under which the independent contractor controls the means of performing the services or
work.
4. Incurs the main expenses related to the service or work that he or she performs under contract.
5. Is responsible for the satisfactory completion of work or services that he or she contracts to perform and is liable for a failure to complete the work or service.
6. Receives compensation for work or service performed under a contract on a commission or per job or competitive bid basis and not on any other basis.
7. May realize a profit or suffer a loss under contracts to perform work or service.
8. Has continuing or recurring business liabilities or obligations.
9. The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures.
(8m) An employer who is subject to this chapter is not an employee of another employer for whom the first employer performs work or service in the course of the other employer's trade, business, profession or occupation.
c. Discussion.
Wisconsin Stat. § 102.07(6) provides that "every person ... distributing newspapers ... from house to house" is an employee of the independent news agency or the publisher's selling agency whose newspaper he or she delivers. The respondent, however, contends that the applicant is not its employee, but an independent contractor excluded from the definition of "employee" under Wis. Stat. § 102.07(8)(b). Thus, the commission, like the ALJ, shall consider the nine factors in the excluded independent contractor statute, Wis. Stat. § 102.07(8)(b). If any one factor is not present, however, the applicant would not be an independent contractor excluded from the definition of "employee" under that statute. Acuity Mutual Insurance v. Olivas, 2007 WI 12, 63, 298 Wis. 2d 640.
The first factor requires an independent contractor to "maintains a separate business with his or her own office, equipment, materials and other facilities." Applying virtually identical wording regarding the definition of "employee" in the unemployment insurance statutes,(1) the court of appeals has stated:
the focus of this requirement is "whether a separate business, i.e., an enterprise created and existing separate and apart from the relationship with the putative employer, is being maintained with the individual's own resources."
Gilbert v. LIRC, [2008 WI 173], 315 Wis. 2d 736, 39.
In this case, the applicant performed only delivery services for the employer, under contracts that require the applicant to perform the services the way the employer wants it done. The commission has held in prior worker's compensation cases that an independent contractor may have a business with relationship only one customer. See Floerchinger v. Nestle Transportation, WC claim no. 2000-017699 (LIRC, Aug. 15, 2001), aff'd per curiam, appeal no. 02-1013 (Wis. Ct. App. Nov. 7, 2002), and Jarrett v. B&D Motors, WC claim no. 96041644 (LIRC, March 12, 1998), affirmed Jarrett v. LIRC, 2000 WI App. 46 17, 233 Wis. 2d 174, 185 (Ct. App. 2000). However, Floerchinger and Jarrett both involved truck drivers who owned and operated their own semi-tractors.
Unlike the injured workers in Jarrett and Floerchinger, the applicant does not own or use a semi-tractor or similar vehicle. Ownership of such a vehicle is at least some evidence of a separate business that is not dependent on an employer-employee relationship, in contrast to simply using one's car to do work for one's employer. Thus, in Floerchinger, the commission noted:
Had Nestle ceased to exist as a business entity, the applicant could have conducted his business with numerous other transportation companies, just as he had in the past.
For this proposition, Floerchinger cited Blose v. Roberts Trucking Inc. and West Bend Mutual Insurance Co., WC Claim No. 1998040771 (LIRC, Dec. 8, 1999), where the commission looked to the "survival of the individual's independently established business if the relationship with the putative employer ceases to exist." The commission further noted in Blose that "the applicant freely chose to continue his business relationship with the carrier, but he was not dependent on it because he could, and actually did, find truck hauling work through other businesses."
In the case now before the commission, the applicant used her personal car to deliver newspapers. If the applicant did not deliver newspapers for the employer, she would have not been delivering anything for anyone else as part of a separate business. She did not make deliveries for anyone else while she worked for the employer. There is no evidence, as was present in Floerchinger and Blose, that she had made deliveries for other entities in the past.
Regarding the first factor, the commission has also
...determined that the first part of the nine-part test, that is, that the worker maintains a separate business with his or her own office, equipment, materials, and other facilities, was not met ... [where a]ccording to the evidence presented, [a] drywall installer kept his supplies in a bucket in the basement, did not have an office or home office, did not have a business card, did not set aside any space for business purposes, did not have a business phone line or office equipment, and did not keep any records except those needed for income tax purposes.
Acuity Mutual Insurance v. Olivas, 298 Wis. 2d 640, 69, note 29.
In this case, the applicant did not advertise and had no business equipment other personal automobile. She did not lease any space for business purposes. She did not list her home address as her business address, bur rather listed the employer's address. Transcript, page 50. The commission concludes that the applicant does not meet the first factor of Wis. Stat. § 102.07(8)(b).
The commission concludes the applicant does not meet the second factor either. Regarding the similarly-worded "operates under contracts" in unemployment insurance law,(2) the court of appeals has noted that this factor
requires multiple contracts, whether "with separate entities, or multiple serial contracts with the putative employer if such contracts are shown to have been negotiated 'at arm's length,' with terms that will vary over time and will vary depending on the specific services covered by the contract..." [Citations omitted.]
Gilbert v. LIRC, 315 Wis. 2d 736, 42. Here, the applicant and employer had essentially the same contact they entered into several times. See exhibits 12 and 17. However, neither the contracts nor actual practice are indicative of arm's length negotiation regarding the contracts' terms. The employer, not the applicant, primarily controlled the means and method of performing the services. The route had to be delivered by vehicle, to certain customers at certain times, to certain places at the customer's homes. Complaints would come to the employer, who would at times rectify the situation itself.
In contrast, in Jarrett, the court noted:
B & D concedes that it arranged where Jarrett would pick up and deliver certain loads. Jarrett, however, supplied and maintained the truck. The details of the work, including choosing a route, were left to Jarrett. He also had the right to turn down a load.
Jarrett v. LIRC, 233 Wis. 2d 174, 21. The court also noted that the contract is the best evidence of a worker's right of control, and that it left the details of the work to Jarrett. Jarrett v. LIRC, 233 Wis. 2d 174, 21, note 9. The same, frankly, cannot be said neither about the contract in this case, nor about the actual practice.
Another factor is who incurred the main expenses related to the service or work that the applicant performed. Wis. Stat. 102.07(8)(b)4. The applicant's tax returns show no business expenses in 2007, her last full year as a motor carrier for the employer. Further, the applicant was paid a mileage rate by the employer to cover her business expenses.(3)
Earlier tax returns (from 2005 and 2006), to be sure, show large amounts of vehicle expenses claimed by the applicant. And the contracts in force from 2005 through 2008 state that the motor vehicle used for delivery would be provided at the carrier's expense. Exhibits 12 and 17, provision X. Those contracts make no provision for mileage, as far as the commission could determine. But at the time of the injury in 2008, the employer was paying mileage. It is reasonable to conclude, thus, that in 2007 and 2008 (and likely prior years), the employer was paying a large share of the only expense incurred--that is, the vehicle expenses--through its payment of mileage. In the absence of evidence regarding how much expense the applicant incurred vis--vis the mileage reimbursement, the commission concludes that the employer incurred the main expenses related to the services the applicant provides. Consequently, the applicant does not meet the factor in Wis. Stat. § 102.07(8)(b)6.
The applicant also does not meet the seventh and ninth factors, which require that the applicant may realize a profit or suffer a loss under contracts to perform work or service, and that the success or failure of her business depends on the relationship of business receipts to expenditures. The only real expense the applicant incurs is related to motor vehicle, which again she uses for her personal use. She was reimbursed for mileage expenses. The commission acknowledges that she incurs repair and insurance expenses for motor vehicle, but again, she operated it for personal use as well her work for the employer. An unexpected repair to a motor vehicle that the applicant also operates for personal use might mean the applicant would pay more in a given week than she received for her carrier duties. However, that does not constitute the kind of cost overrun that could result in "a loss under contracts to perform work or service" contemplated in the statute. Further, the commission concludes that the applicant's business success is less related to the relationship of business receipts to expenditures, than to how much labor she was willing to provide. See: Acuity Mutual Insurance v. Olivas, 298 Wis. 2d 640, 71.
In sum, the applicant does not meet all the conditions in Wis. Stat. § 102.07(8)(b). She is not removed from the definition of "employee" on that basis.
d. Applicant as employer
The respondent next argues that the applicant is not a covered employee under Wis. Stat. § 102.07(8m), because she hired substitute workers to handle her route and is therefore herself an employer subject to Wis. Stat. ch 102. The applicant did arrange for three substitute workers to do her route, Paul, Crystal and Josh. However, the respondent's argument, as framed in its brief, refers solely to the arrangement with Paul, Crystal and Josh after the date of injury on March 1, 2008. The respondent does not appear to argue the applicant was an employer when she was injured.
Moreover, the contracts the applicant had with the employer put the onus of obtaining substitutes on the applicant. Exhibits 12 and 17, provision 1. The term "substitute" implies Paul, Crystal, Josh, were not employees of the applicant, but substitutes for the applicant in the performance of her services to the employer. The commission concludes that Paul, Crystal, and Josh are properly characterized either as "employees" of the employer directly under Wis. Stat. § 102.07(6), or as "helpers" or "assistants" of the applicant who are employees of the named employer as contemplated in Wis. Stat. § 108.07(4).
2. Disability issues.
The next issues involve the cause, nature and extent of disability.
a. Injury and treatment.
The applicant slipped and fell on ice while delivering papers on March 1, 2008. She presented at the emergency room that day, stating that she slipped and fell on her left elbow, hurting the left upper arm and right upper back. The examining doctor noted pain in the left elbow and left upper arm, but a full range of motion in the left elbow. The pain symptoms were, however, aggravated by movement. Pain medication and a sling were prescribed. See exhibits D and 9.
The first notation of left shoulder pain, specifically, is a note documenting treatment with Jacky-ky Wang, M.D., on March 7, 2008. The doctor noted the fall on March 1, and that the applicant had problems lifting her left shoulder pain, with pain on shoulder motion. He diagnosed a left rotator cuff strain versus tear.
When the applicant's complaints continued, Dr. Wang ordered an MRI which he reported on March 21, 2008 as showing a left rotator cuff tear and impingement syndrome. He referred the applicant to orthopedics, where she began treating with E. Ho, M.D., on April 18, 2008. Dr. Ho described x-rays as showing degenerative changes about the acromioclavicular joint, and the MRI as suggestive of a labral tear as well as intersubstance tearing of the rotator cuff tendon. He believed that she ultimately would require surgery.
Indeed, the applicant has subsequently undergone three separate operations (on August 6, 2008, April 6, 2009, and August 27, 2009) each involving multiple procedures.
After her injury, the applicant was kept off work by Dr. Ho, until he released her to work on light duty restrictions on December 10, 2008. Exhibit 8; see also exhibit B. Specifically, on December 10, 2008, Dr. Ho set a 15-pound lifting limit and a restriction against above shoulder lifting. He did state: "At this point, I do not think she can do her paper route any more and I have given her a note in that regard."
A report of the respondent's medical examiner, David Solfelt, M.D., states that Dr. Ho released the applicant to full duty work on May 20, 2009, with permanent partial disability at 20 percent compared to permanent total disability. Exhibit 4, page 5. This would have been about six weeks after the April 6, 2009 surgery. The commission could not locate this treatment note from Dr. Ho in the record.
The records include a note documenting treatment with John F. Orwin, M.D., on July 29, 2009. Exhibit F. This note refers to the prior surgeries in
August 2008 and April 2009, and adds:
She is here today reporting continued pain and pain that is completely resolved at any point subsequent to the initial surgery.
This does stem from a fall while delivering newspapers as part of her work on March 1, 2008. She is here today for definitive diagnosis and treatment options, as she has not been offered further guidelines by Dr. Ho.
Dr. Orwin recommended further diagnostic testing, and ultimately performed the applicant's third shoulder surgery on August 27, 2009. His operative note gives this history:
Connie Hicks is a 52-year old female with left shoulder pain. She is status post rotator cuff repair done at an outside institution for apparently a small rotator cuff tear. She has now had chronic pain and loss of motion in her shoulder. She apparently was taken back to surgery where an exam under anesthesia and a manipulation gave her improvement of motion, but she never went on to have significant relief of her symptoms. In fact, she never did any postoperative rehab after her manipulation and therefore developed loss of motion once again....
b. Expert medical opinion.
Regarding the cause, nature and extent of her disability, the applicant offers the expert medical opinion of a treating doctor Wang, whose opinion is at exhibit C. For a description of the accidental event causing the work injury, and for diagnosis and a description of disability, Dr. Wang refers to his attached treatment notes. These, of course, describe the slip and fall on left elbow, the emergency room treatment on March 1, and the presenting problems with the left shoulder which he diagnosed as a left rotator cuff tear. Dr. Wang's practitioner's report opines the work accident caused the injury directly and by precipitating, aggravating, and accelerating beyond normal progression a pre-existing disabling condition.
The applicant also submits a report from Dr. Ho, whose opinion is at exhibit B. For a description of the accidental event causing the work injury, and for diagnosis and a description of disability, Dr. Ho also refers to his attached treatment notes. These document an onset of left shoulder pain symptoms on March 1, 2008, with a fall on ice while delivering papers on a newspaper route. Regarding diagnostic impression, the doctor's notes refer to left shoulder pain and derangement and include the August 8, 2008 operative note diagnosing left shoulder impingement syndrome with focal full thickness tear and left shoulder acromioclavicular arthrosis.
Dr. Ho opined the March 1, 2008 work event directly caused the applicant's disability. He referred to his treatment notes regarding work restrictions, and declined to rate permanent disability noting in his report dated in early
December 2008 that the applicant was still treating.
The applicant further submits a report from Dr. Orwin dated August 17, 2009, at exhibit E. He described the March 1, 2008 work event as "employee slipped and fell on ice at work, injuring her left arm and shoulder." He opined, too, that the applicant remained in a healing period and subject to work restrictions from
July 29, 2009 to the date of the report and continuing, that the applicant need additional treatment from the work injury, and that she would remain in a healing period until that treatment was provided. He, too, opined that the slip and fall on ice on March 1, 2008 directly caused the applicant's disability. He declined to rate permanent disability, noting it was too early and he anticipated--as of the date of his report--further surgery.
The respondent's medical expert, David A. Solfelt, M.D., issued three reports giving a single, consistent opinion on causation. Specifically, Dr. Solfelt opined that the applicant's condition is simply a manifestation of the pre-existing degenerative changes, noting the absence of a full thickness tear on imaging, the fact she could finish out her shift on March 1, 2008, that her presentation to the emergency room on March 1 seemed inconsistent with a rotator cuff tear, and that she did not actually complain to a doctor about a shoulder pain until a few days after March 1.
In his second report, dated July 2, 2009, Dr. Solfelt opined that, regardless of causation, the applicant would remain in a healing period from the April 2009 surgery until October 2009, though she could work with restrictions including no lifting of more than 10 pounds at or above chest height. In his third report, dated December 18, 2009, Dr. Solfelt opined that the applicant would not reach an end of healing from the August 2009 surgery until August 2010, when he anticipated permanent disability in the range from 8 to 12 percent. His report makes clear his opinion that neither the surgeries nor the attendant disability were related to a March 1, 2008 work injury.
c. Discussion.
The commission is satisfied that the applicant fell on the ice onto her left elbow while delivering papers on March 1, 2008, injuring her left shoulder in the process. In other words, on March 1, 2008, the applicant sustained an injury arising out of her employment with the employer, while performing service growing out of an incidental to that employment.
On this point, the commission notes that the treating doctors all attribute the applicant's shoulder problems to the fall. The medical record establishes that when she presented at the emergency room on March 1, 2008, the applicant stated she slipped and fell on her left elbow, hurting the left upper arm and right upper back. Falling and landing on one's left elbow is a reasonable mechanism for a left shoulder injury. The applicant complained of left shoulder pain to Dr. Wang only six days later. The applicant testified credibly to an increase in left shoulder pain with the fall, and the ALJ believed her.
The respondent argues that none of the knew of, much less addressed, prior left shoulder complaints that the applicant had which in fact resulted in a 1% permanent partial disability rating in 2003. See exhibit 1. Indeed, there are medical notes as recently as 2006 in which the applicant told a treating doctor she had chronic left shoulder complaints. Exhibit F, note of Bentowski dated September 16, 2006. The respondent cites the Pressed Steel line of cases,(4) contending that the opinions of the applicant's treating doctors should be rejected because they are premised on an inaccurate or incomplete history.
However, in response to this contention, the commission considers the materiality of the inaccuracy in the history. While the applicant had had prior left shoulder treatment as recently as September 2006, she began treating regularly after the March 1, 2008 incident and eventually underwent surgery. The applicant's prior complaints for similar complaints left shoulder pain 18 months earlier are relatively less material, when the shoulder pain starts or becomes disabling shortly after traumatic fall onto the elbow of the same arm. Further, that Dr. Wang had some appreciation of a pre-existing shoulder condition, as he opined the work injury precipitated, accelerated, and aggravated such a condition beyond normal progression. Dr. Ho similarly noted that the x-rays showed degenerative changes.
The next issue is the extent of disability. The medical establishes that the remained in a healing period from the date of injury to at least the date of hearing. The supreme court has held:
The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.
Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).
Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) added:
An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...
Larsen Co., 9 Wis. 2d at 386.
The supreme court also has held that the commission cannot order payment of temporary total disability after a worker's condition has stabilized and he or she is awaiting surgery, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960); GTC Auto Parts v. LIRC, 184 Wis. 2d 450 (1994). However, the holdings in the Larsen Co. and GTC Auto cases turn on whether a doctor credibly opines the applicant has reached a healing plateau and is subject only to permanent disability during the period at issue. ITW Deltar v. LIRC, 226 Wis. 2d 11, 21 (Ct. App. 1999). Further, in GTC Auto, the applicant declined to have the recommended surgery. In Larsen, a treating doctor had rated permanent disability before the surgery was proposed.
In this case, the records of Drs. Wang, Ho and Orwin indicate that the applicant remained symptomatic and has continued treating from the date of injury to the date of hearing. Dr. Solfelt, the respondent's medical expert, does report that Dr. Ho rated permanent partial disability at 20 percent and released the applicant to full duty work on May 20, 2009, about six weeks after the applicant's second surgery and months before the third. However, the commission does not find this to be a credible opinion that the applicant had reached a healing plateau as of May 20, 2009.
Indeed, Dr. Solfelt himself opined that the applicant would have not reached an end of healing from the April 2009 surgery until October 2009, by which time she had undergone the intervening third surgery in August 2009. In other words, the respondent's examiner did not share Dr. Ho's belief the applicant had reached an end of healing by the end of May 2009. Further, when the applicant began treating with Dr. Orwin in July 2009, Dr. Orwin noted that Dr. Ho had no treatment options. Moreover, Dr. Orwin reported the applicant's condition worsened between April and July 2009. The commission therefore concludes that while Dr. Ho may have had no further treatment to offer by May 2009, that did not mean the applicant had reached a healing plateau.
After the applicant began treating with Dr. Orwin, of course, she underwent a third surgery on August 2009, which both Dr. Orwin and Dr. Solfelt opined disabled her to at least the date of hearing. Because the commission is satisfied the applicant underwent all three surgeries to cure and relieve the effects of the work injury, there is substantial medical support for finding that the applicant remained in a healing period to the date of hearing.
The commission is also satisfied that the applicant could not have returned to work delivering papers from the date of injury to the date of the hearing. Indeed, Dr. Ho so opined in December 2008, and the commission cannot conclude that her condition improved sufficiently thereafter to permit the applicant to have returned to her work delivering papers subject to temporary restrictions during her healing period.
The respondent also argues that the employer continued to pay the applicant after March 1, so that she is ineligible for temporary disability. However, the applicant testified, credibly, that she paid all the money she received from the employer to the substitute drivers and that she did not work delivering papers after March 1. Mr. Scales testified he saw at work after that, but she testified, again credibly, that she only accompanied the substitute drivers--one of whom was her son--occasionally when they picked up papers or drove the route. January 2010 transcript, page 25, 29.
The respondent also asserts that the applicant is not disabled because she was able to work for another employer. Specifically, the applicant worked about 161 hours as a cook at R&S Lanes after she was injured. As the applicant notes, there is no direct reduction in temporary disability due to those wages under Wis. Stat. 102.43(2) and (6). The applicant held her job at R&S Lanes when she was injured (January 2010 transcript, page 26) and the commission cannot conclude from the record that the applicant's stipulated average weekly wage are based on an "expanded wage" under Wis. Stat. 102.11(1)(a). See Wis. Stat. 102.43(6)(a) and (b).(5)
The respondent argues that--the issue of direct reduction under Wis. Stat. § 102.42(2) and (6) aside--working as a cook is inconsistent the claim of a disabling left shoulder injury. However, the commission does not read Dr. Solfelt's report to address the issue of employment as a cook. The commission thus is disinclined to rely on its intuition to conclude that the applicant could not have been disabled from her shoulder injury because she could work as a cook. See: Leist v. LIRC, 183 Wis. 2d 450, 461-62 (1994). Indeed, the record suggests otherwise, given the applicant's treatment for left shoulder complaints on a regular basis after March 2008, including substantial operative treatment, despite her employment as a cook at R&S Lanes.
3. Award.
Based upon the foregoing, the applicant is entitled to temporary total disability from March 1, 2008 to March 8, 2010, a period of 105 weeks and two days. At the weekly rate of $172.17 (two-thirds the stipulated average weekly of $258.76), the total amount due in temporary disability is $18,135.24.
The applicant authorized the withholding of attorney fee, set under Wis. Stat. 102.26 at 20 percent of the amount awarded, or $3,627.05. That amount, together with attorney costs of $173.85 shall be withheld from the award and paid to the applicant's attorney in 30 days. The remainder, $14,334.34, shall be paid to the applicant within 30 days.
The applicant has also incurred expenses for medical treatment to cure and relieve the effects of the work injury as follows: from Joints in Motion, LLC, $7,218.75, of which the worker's compensation insurer has paid $472.50, and $6,746.25 remains outstanding; from UW Health Physicians, $3,052.00, all of which is outstanding; and from Aurora Pharmacy, $25.00, all of the applicant paid out-of-pocket.
The applicant had not yet reached a healing plateau as of the date of hearing. Consequently, this order shall be left interlocutory for additional awards of temporary disability, permanent disability, and medical expenses as may arise in after the date of hearing.
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.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Connie Hick, the sum of Fourteen thousand three hundred thirty-four dollars and thirty-four cents ($14,334.34) in disability compensation and Twenty-five dollars and no cents ($25.00) in out-of-pocket medical expenses.
2. To the applicant's attorney, James A. Meier, the sum of Three thousand six hundred twenty-seven dollars and five cents ($3,627.05) in attorney fees and One hundred seventy-three dollars and eight-five cents ($173.85) in costs.
3. To Joints in Motion, LLC, Six thousand seven hundred forty-six dollars and twenty-five cents ($6,746.25) in medical treatment expense.
4. To UW Health Physicians, Three thousand fifty-two dollars and no cents ($3,052.00) in medical treatment expense.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed January 27, 2011
hicksco . wrr : 101 : 5 ND6 2.14, 6.6
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney James A. Meier
Attorney Jack Ebbott
Appealed to circuit court
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