GERHARD SCHWENK, Applicant

WAUKESHA ELECTRIC SYSTEMS INC, Employer

FIDELITY & GUARANTY INS UNDERWRITERS, 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.
January 31, 2011

BY THE COMMISSION:
schwenk:wsd:101:1 ND6 6.4

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant was born in 1939. He worked for the employer for over 36 years, both in the maintenance department and doing purchasing. He left his job with the employer in June 2003 under what the employer called a "reduction in force." The applicant testified that, had he not been laid off, he would have continued working for the employer. Indeed, he testified that he in fact applied for other jobs after his layoff but was unable to find employment. In 2003, of course, the applicant would have been 64 years old.

In 1999, while working for the employer, the employee had sustained an injury to his shoulder requiring a rotator cuff repair the following year. In August 2007, after he had stopped working for the employer, he began experiencing an increase in pains in the same shoulder. There was no re-injury but on repeat imaging a re-tear of the rotator cuff was disclosed. He consequently underwent a repeat surgery in May of 2008. There is a report from his treating surgeon, Rick F. Papandrea, M.D. at Exhibit C. There is no dispute that the repeat surgery was due to the work-related injury.

In this case, the employer and its insurer (collectively, the respondent) asserts that the applicant has retired and removed himself from the labor market, so that he should not receive temporary disability while he recovers from surgery. On this point, the respondent notes that Dr. Papandrea reported that the applicant "eventually retired" following his first surgery in 1999.

However, the applicant contends he did not actually retire, noting he owns two rental properties in Wisconsin and a ranch in North Dakota. Both of these properties require a substantial amount of labor and the employee has been providing it himself since leaving his job with the employer. Indeed, he testified he had to hire someone to help maintain the rental properties in Wisconsin while he was recovering from his surgery.

The respondent points out that the applicant did not actually pay himself wages to do the work on his rental properties or on his ranch. The respondent also argues that actual wages are necessary for a payment of temporary disability. On this point, the respondent notes a previous commission decision, Keys v. Tower Automotive, WC Claim No. 2002-043158 (LIRC October 29, 2007), which discussed two supreme court cases--Employers Mut. L. Ins. Co. v. Industrial Commission, 230 Wis. 270, 281 (1939) and Delta Oil v. Industrial Commission, 273 Wis. 285, 291 (1956)--and particularly language in Employers Mutual stating that "one who has sustained no wage loss cannot recover compensation based on a theoretical loss of wages."

In Keys v. Tower Automotive, however, the commission explained that the language from Employers Mutual should not be read too expansively. The commission observed that to do so would run contrary to prior holdings that workers remain eligible for temporary disability after being laid off for economic reasons, or after they were fired, because their ability to work remains impaired, citing Brakebush Bros. Inc. v. LIRC, 210 Wis. 2d 623 (1997).

This case, the commission is satisfied, involves more than a theoretical loss of wages. The applicant applied for work with other employers after he was terminated by the employer during the reduction in force in 2003. He remained self-employed and attached to the labor market as of the point of his surgery. He had to hire a worker to do the work on his rental property that he was unable to do while he convalesced. Transcript page 15. His ability to earn wages is now impaired by the work injury, and he is entitled to temporary disability compensation.

cc: Attorney Robert Ward
Attorney Ahmed Quereshi

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