RUSSELL D SANDERSON, Applicant

SANDERSONS HOME IMPROVEMENT, Employer

SOCIETY INSURANCE A MUTUAL 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. Timely petitions for review were filed by each party.

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 seventh through eleventh paragraphs of the ALJ's Findings of Fact and Conclusions of Law (the section entitled "Average Weekly Wage"), and substitute:

"Applicant Sanderson testified that what he earns varies from year to year, but that he tries to earn $28.00 per hour for a forty hour week. He contends his average weekly wage should be $1,120, or $28.00 per hour times 40 hours. He has provided the schedule C from his federal tax return for 2008, the year preceding his injury, and it shows a net profit of $21,459. Exhibit H.

"A worker's average weekly wage is generally determined under a two-pronged test. The first prong is the worker's normal full-time hourly wage multiplied by the number of full-time hours for his or her job, which is presumed to be 40 hours for most occupations. See Wis. Stat. § 102.11(1)(a). This figure is compared to the worker's actual average weekly earnings for the 52 weeks before his or her injury while working for the employer. See Wis. Stat. § 102.11(1)(d). The higher figure is the average weekly wage.

"There are no special statutes or rules governing sole proprietors. However, the department has written a 'training resource' for insurers and self-insurers that it maintains on its website. The training resource states:

To establish the Average Weekly Wage (AWW) for sole proprietors, husband and wife businesses, and partners use the reported net earnings in the tax year prior to the year in which the injury occurred. Presume that the claimant worked all 52 weeks of that prior year unless there is documentation to the contrary.

"Under the department's training resource, a 52-week year is assumed, 'unless there is documentation to the contrary.' Applicant Sanderson testified that he only worked 23 weeks in calendar year 2008. Specifically, he testified that he was disabled from an ear condition (Meniere's disease1(1)) which kept him off work for 12 to 16 weeks. He also testified he could not work another 7 to 11 weeks because of the weather as siding and window work cannot be done in extreme cold (transcript, 15-16). Nearly all of the work that Applicant Sanderson does is outside work though he did testify he 'occasionally ... might get a bathroom.' Transcript, page 46. Indeed, he testified that the worker's compensation insurer considers his work 'seasonal.' Transcript, 23.

"While Applicant Sanderson's testimony is not written 'documentation' as that term is commonly understood, if credible it may serve as the basis for a finding of fact. Certainly Applicant Sanderson is competent to testify as to how many weeks he worked in a prior year. Moreover, what Applicant Sanderson was told by the worker's compensation insurer about the nature of his business would constitute a non-hearsay admission of a party opponent.

"Further, there is documentary support for Applicant Sanderson's testimony. He introduced his tax returns for 2006 and 2007, and they show income of about $53,000 in each of those years. This suggests, and Applicant Sanderson testified to this effect, that had he not been disabled by Meniere's disease, he would have earned more in tax year 2008 than the $21,459 on which his average weekly wage is based. In short, the 2006 and 2007 tax returns corroborate Applicant Sanderson's testimony that he was, in fact, disabled for many weeks due to the Meniere's disease.

"Applicant Sanderson has established that in 2008, the tax year before his injury, he did not work a 52-week year. In 2008, Applicant Sanderson did not operate his sole proprietorship in 14 weeks due to Meniere's disease. Nor did he operate his business in another 9 weeks for weather-related reasons. In all, Applicant Sanderson worked only 29 weeks in 2008, the tax year preceding his injury. Dividing the net profit shown in his schedule C for that year, $21,459, by 29 weeks yields an average weekly wage of $739.97.".

"Applicant Sanderson is entitled to temporary total disability benefits from February 27 to October 12, 2009 (both dates exclusive), a period of
32 weeks and four days. At the weekly rate of $493.31 (two-thirds his average weekly wage of $739.97), he is entitled to $16,114.90 in temporary disability during this period. Department records show the insurer has paid disability indemnity of $3,733.35, leaving a net amount due in temporary disability benefits of $12,381.55.

"Applicant Sanderson approved the direct payment of an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the net amount due in temporary disability benefits, or $2,476.31. That amount, together with costs of $310.85 shall be deducted from Applicant Sanderson's award and paid to his attorney within 30 days. The remainder, $9,594.29, shall be paid to Applicant Sanderson within thirty days. Attorney fees at a rate of 20 percent are approved on any indemnity benefits paid in the future.".

3. Delete the 18th paragraph of the ALJ's Findings of Fact and Conclusions of Law.

4. Delete the ALJ's Interlocutory Order and substitute the second, third and fourth paragraphs of the commission's Interlocutory Order.

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

The findings and order of the administrative law judge, 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, Russell D. Sanderson, the sum of Nine thousand five hundred ninety-four dollars and thirty-nine cents ($9,594.39) in disability compensation and Four hundred forty-six dollars and twenty-five cents ($446.25) in out-of-pocket medical expenses.
2. To the applicant's attorney, Travis K. Glandt, the sum of Two thousand four hundred seventy-six dollars and thirty-one cents ($2,476.31) in fees and Three hundred ten dollars and eighty-five cents ($310.85) in costs.
3. To BayCare Clinic, Sixteen dollars and twenty-nine cents ($16.29) for medical treatment expense.
4. To Aurora Medical Center, the sum of Ten dollars and eighty-six cents ($10.86) for medical treatment expense.
5. To Aurora Reed Avenue Clinic, the sum of Twenty-two dollars and forty-one cents ($22.41) for medical treatment expense.
6. To Golden Rule, the sum of One thousand four hundred thirty-three dollars and nine cents ($1,433.09) in reimbursement of medical expenses paid.

The employer and its insurer shall pay the expenses associated with the continued treatment of the applicant's right elbow condition.

Jurisdiction is reserved for further findings, orders and awards as may be warranted.

Dated and mailed
April 30, 2012
sanders . wmd : 101 : 5 ND6 4.7; 4.8

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Both the employer and its insurer (collectively, the respondent) and the applicant filed petitions for commission review in this case. The commission dealt with the issue raised by the applicant in the material inserted into the ALJ's decision by amendment.

Prior to amending the ALJ's decision, the commission conferred with the presiding ALJ concerning the applicant's credibility and demeanor. She credited his testimony that he was unable to work due to Meniere's disease. Regarding the seasonal nature of his work, she noted that the weeks the applicant said he worked did not correlate with the weeks in which he paid himself. However, the ALJ also noted, and the commission agrees, that as a sole proprietor the applicant was likely to pay himself when he was paid by his customers or when he needed money rather than when he actually performed work. She also noted that the testimony states that he might get an occasional bathroom, indicating that he did some inside work. After considering the entire record, however, the commission is satisfied that the applicant did little work inside and that his business was seasonal.

On appeal, the respondent contended the applicant has not established disability from a compensable injury, offering the report of Steven Grindel, M.D. Dr. Grindel opined that the applicant suffered only a contusion to his right elbow, and that the work injury of February 9, 2009 did not lead to the need for cubital tunnel surgery. On this point, Dr. Grindel noted that EMG testing done before the work injury had previously led to a diagnosis of cubital tunnel syndrome.

However, like the ALJ, the commission adopts the opinion of the applicant's treating doctor, Shawn Hennigan, M.D. The applicant testified credibly that, after he fell, he had constant pain in his right elbow and arm making it difficult to use his arm even to eat. An MRI of the right elbow done on March 11, 2009 was interpreted to show a healing subacute fracture or osteoarthritic change at the margin of the radial head. Based on the MRI findings, and particularly the applicant's persistent symptoms beginning with the fall, Dr. Hennigan credibly opined that the work injury on February 8, 2009 directly caused the applicant's disability from cubital tunnel syndrome.

cc: Attorney Travis Glandt
Attorney Robert Dean

Appealed to circuit court.  Affirmed January 24, 2013.

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(1)( Back ) A diagnosis of Meniere's disease was noted during treatment with Dr. Phillips on February 27, 2009. Exhibit C.

uploaded  2012/10/01