PHILLIP OLSON, Applicant
BILL GILLIAM D/B/A GILLIAMS, Employer
WIS WC UEF, 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. Delete the text beginning with second full paragraph beginning on page 4 of the ALJ's decision through the text ending with the fourth full paragraph on page 5 of the ALJ's decision and substitute:
"Mr. Olson's wage rate was in dispute. He worked one day and was paid $35.00. He understood that he would be paid $35.00 on every day that he worked. The Wisconsin State Fair runs for 11 days. The value of lodging in 2005 was $7.40 per day. His daily wage was thus $42.40; on a seven-day basis his average weekly wage was $296.80. As he was under age 27 on the day of injury, he is presumed to have the maximum average weekly wage for permanent partial disability benefits.
"Based on the foregoing circumstances, the applicant sustained an accident causing injury on August 6, 2005, while performing services as an employee of William Gilliam, d/b/a Gilliam Concessions, as the employer, growing out of and incidental to that employment. His average weekly wage was $296.80.
"As a result of this injury, the applicant was temporarily totally disabled from August 6, 2005 to August 10, 2005, a period of 2 days; from June 1, 2006 to December 1, 2006, a period of 26 weeks; and from May 22, 2008 to September 9, 2008, a period of 15 weeks and 3 days. These periods are all payable at a weekly rate of $197.87 (two-thirds of $296.80), yielding a total in temporary disability of $8,277.42.
"As a further result of this injury, the applicant sustained a permanent partial disability to the left eye and benefits for such disability are set out on the department's worksheet marked as hearing exhibit B, payable at a weekly rate of $242.00 for 196.20 weeks for a total of $47,480.40. This entire amount was accrued and payable.
"Another result of this injury requires that the applicant's medical expenses as listed in section Q of hearing exhibit A shall be resolved by the employer and UEF. The employer and UEF shall also pay the applicant's out-of-pocket costs of $10.00.
"The fee of the applicant's attorney is set at $11,151.56, pursuant to a request under § 102.26, Wis. Stats. The attorney also had costs of $693.55."
2. Delete the ALJ's Interlocutory Order and substitute the second, third and fourth paragraphs of the ALJ's decision.
The findings and order of the administrative law judge, as modified, are affirmed.
Within 30 days from the date of this order, the employer (Bill Gilliam) and the insurer (WIS WC UEF) shall pay all of the following:
1. To the applicant, Phillip Olson, the sum of Forty-three thousand nine hundred twelve dollars and seventy-one cents ($43,912.71) in disability compensation and Ten dollars and no cents ($10.00) in medical expense.
2. To the applicant's attorney, David Erspamer, the sum of Eleven thousand one hundred fifty-one dollars and fifty-six cents ($11,151.56) in attorney fees and Six hundred ninety-three dollars and fifty-five cents ($693.55) in costs.
The parties shall resolve the medical expenses.
Jurisdiction is reserved for future orders and awards as are warranted and consistent with this decision.
Dated and mailed
June 30, 2011
olsonph . wmd : 101 : 9 ND6 2.2; 4.4; 4.5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The applicant was one of three men working at a "balloon toss" concession stand at the Wisconsin State Fair on the date of injury. One of the other two men, Ralph Peach, hired him. A third fellow, Stan Minker, also worked at the stand. The Wisconsin Worker's Compensation Uninsured Employer's Fund (the Fund) argues that Bill Gilliam, the named employer, did not hire the applicant directly.
However, the applicant testified that Peach told him that Bill Gilliam owned and operated the business, which was why the stand bore Gilliam's name and why the applicant received a Sam's card identifying him as a Gilliam employee. Transcript, page 67. Peach did not testify. Mr. Gilliam did deny ever operating a balloon toss game or hiring Mr. Peach.(1) However, the ALJ was not required to credit Mr. Gilliam's testimony. On this record, the ALJ reasonably concluded that Mr. Peach was Mr. Gilliam's agent and therefore had the authority to hire the applicant and operate the business under Gilliam's name.
The other issue that the Fund raises is that Mr. Minker was not actually an employee, but someone who sold concession toys. However, Mr. Gilliam himself testified that sometimes friends helped out at his business. Transcript, page 27. Again, the applicant testified that Mr. Minker was the third man working at the stand. The applicant's testimony is credible and establishes that Mr. Minker was also an employee of Mr. Gilliam's on the date of injury. Thus, Mr. Gilliam meets the definition of subject employer under Wis. Stat. § 102.04(1)(d)1 which includes every person who usually employs three or more employees.
Regarding the injury, again as the ALJ points out, the applicant was struck in the eye by a dart thrown by one of the employer's customers. His medical evidence--including the opinion of his medical expert--is credible and completely consistent with the ALJ's award.
Finally, the Fund raises the issue of the average weekly wage. According to the applicant, when he was hired by Mr. Peach he was told he would make at least $35 a day and possibly a percentage of the take. However, the applicant added that Peach told him that he had to pay the other employees, which included Mr. Minker and Peach himself. Transcript, p. 68, lines 12-16. The applicant also testified that he was promised room and board, which is set at a daily rate of $7.40 per day by administrative rule. See Wis. Adm. Code § DWD 80.49 and § DWD 72. Adding these together, the applicant could reasonably expect to be paid $42.40 per day.
The fair ran for 11 days. The commission, like the ALJ, concludes that the applicant would have been required to work every day, or seven days a week.
Wisconsin Stat. § 102.11(1)(a) provides:
102.11 Earnings, method of computation. (1) The average weekly earnings for temporary disability, permanent total disability, or death benefits for injury in each calendar year on or after January 1, 1982, shall be not less than $30 nor more than the wage rate that results in a maximum compensation rate of 110 percent of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year. The average weekly earnings for permanent partial disability shall be not less than $30 and, for permanent partial disability for injuries occurring on or after May 6, 2010 [May 1, 2010], and before January 1, 2011, not more than $438, resulting in a maximum compensation rate of $292, and, for permanent partial disability for injuries occurring on or after January 1, 2011, not more than $453, resulting in a maximum compensation rate of $302. Between such limits the average weekly earnings shall be determined as follows:
(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.
2. a. In this subdivision, "part time for the day" means Saturday half days and any other day during which an employee works less than the normal full-time working hours established by the employer.
b. If at the time of the injury the employee is working part time for the day, the employee's daily earnings shall be arrived at by dividing the amount received, or to be received by the employee for such part-time service for the day, by the number of hours and fractional hours of the part-time service, and multiplying the result by the number of hours of the normal full-time working day established by the employer for the employment involved.
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.
As provided in Wis. Stat. § 102.11(1)(a)3, average weekly wages can either be determined by multiplying average weekly hours times the average hourly earnings, or by multiplying the employee's daily earnings by the number of days in the normal work week. The commission concludes that on the facts of this case, the average weekly wage should be determined by multiplying the daily wage of $42.40 times the 7-day week the applicant was expected to work. His weekly wage, then, would be $296.80.
The Fund suggests that the commission determine an average hourly wage and then multiply that times the presumed normal full-time work week of 40 hours under Wis. Stat. § 102.11(1)(a)4. While that possibly is one option, the statute also allows for the simpler calculation--at least in this case--of multiplying the daily earnings times the number of days worked in a normal week.
The employer also questions the use of the presumption in Wis. Stat. § 102.11(1)(g) which provides:
102.11(1)(g) If an employee is under 27 years of age, the employee's average weekly earnings on which to compute the benefits accruing for permanent disability or death shall be determined on the basis of the earnings that the employee, if not disabled, probably would earn after attaining the age of 27 years. Unless otherwise established, the projected earnings determined under this paragraph shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable.
The court of appeals has discussed the commission's role in applying Wis. Stat. § 102.11(1)(g) as follows:
The statute does not ask the Commission to determine what a twenty-seven year old would have received for the work the younger employee was doing at the time of injury; rather, the statute directs the Commission to determine what the younger worker would probably earn in the job that he or she would hold after attaining the age of twenty-seven. In adopting sec. 102.11 (1)(g), the legislature recognized that a young worker's wages may be utterly inadequate to form a reliable basis on which to compute his or her probable earnings as a mature member of the labor force. In fixing an award to a young employee, the Commission need not assume that the injured worker would have remained in the same job or at the same company until the age of twenty-seven. In addition to the actual earnings at the time of injury, the Commission may consider the qualifications of the employee and his or her educational level and experience.
Evans Brothers v. LIRC, 113 Wis. 2d 221, 227-28 (Ct. App. 1983).
In addition, the supreme court--considering a predecessor to Wis. Stat. § 102.11(1)(g) with essentially identical language but for a statutory age of 21--addressed the question of whether the projected average weekly earnings should be based on what the worker would earn immediately upon reaching the stated age, or upon an unlimited amount of time after reaching that age. Badger Carton Company v. Industrial Commission, 195 Wis. 327, 330, 218 N.W. 190 (1928). The court concluded that the proper construction of the statute requires:
a consideration of what the employee would probably earn within a reasonable time after arriving at majority; and in fixing the award the commission is entitled to consider, among other things, in addition to the actual earnings prior to the injury, the qualifications of the employee, his education and experience.
Id., 195 Wis. at 330-31.
Prior to his injury, the applicant worked at Link Brothers and Economart where he stacked shelves and unloaded boxes. He has been an occasional carnival worker in the past. Exhibit 22 includes the applicant's wage record and it appears fair to say that he earned somewhere between $5,000 and $11,000 per year from 2004 to 2009. He did not graduate from high school and reads at a third grade level. Neither party submitted a report from a vocation expert.
On this record, the amount the applicant would probably have earned after age 27 has not been established, much less that it would have been lower than the maximum weekly wage for permanent partial disability in 2005, which is $363. See 2003-04 Wis. Stat. § 102.11(1)(intro.) In short, the ALJ properly determined that the maximum wage presumption applies, and the applicant's award should be calculated based on the maximum permanent partial disability rate of $363.
cc:
Attorney David M. Erspamer
Attorney Angela D. McKenzie
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