STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WILLIAM MITCHELL, Applicant

BARRON ELECTRIC COOP, Employer

REESE & ASSOCIATES, Employer

FEDERATED RURAL ELECTRIC INS, Insurer

BERKELEY ADMINISTRATORS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95035326

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 sixth paragraph of the ALJ's Findings of Fact and substitute:

"At the request of Attorney Duplessie, the applicant was examined by Dr. Becker on February 19, 1996. Dr. Becker's report is dated February 23, 1996, and is attached to his WC-16-B of the same date. In his report, Dr. Becker finds the applicant suffered a work injury on April 17, 1995, and that as a result of this injury he had surgery on August 24, 1995. Dr. Becker found that the applicant had a five percent permanent partial disability as well as reaching a healing plateau on October 10, 1995.

"The record indicates that, after sustaining the April 17, 1995 work injury, the applicant first missed work from April 21 through May 8, 1995, that he returned to work in the week of May 8, 1995 and was paid for two week's work, and that he did not work for Reese and Associates thereafter. On this basis, it is determined that the applicant was temporarily disabled from April 21 through May 8, 1995, inclusive (2 weeks and three days); that he returned to work from May 9 through May 22, 1995, inclusive; and that he was again temporarily disabled from May 23 through October 9, 1995, inclusive (a period of 20 weeks).

"The record also indicates that during this later period of temporary disability, the applicant worked at Sand Lake Dump, beginning sometime in the summer of 1995, a job he had held the previous summer as well. In the summer of 1995, the applicant earned $6.25 per hour at the dump, working about a 12-hour week, until the first week of November. According to Respondent's exhibit 12, the accuracy of which the applicant does not dispute, he worked 51 hours in August 1995, 49.5 hours in September 1995, and six hours on Saturday, October 7, 1995. This totals 106.5 hours of employment at Sand Lake Dump during the applicant's healing period.

"The applicant also sold scrap metal, as part of a personal side business, at various points during his healing period. The applicant has dealt in scrap metal all his life. Because the applicant was already dealing in scrap at the time of his work injury, none of the earnings for that business may be deducted from his temporary total disability under sec. 102.43 (6), Stats.

"The record does not support a similar conclusion with respect to the applicant's job at Sand Lake Dump. While he had worked for the dump in the past, the record does not establish he was employed at the dump on the date of injury. Moreover, the applicant does not dispute the respondent's contention that his temporary disability should be offset by these earnings.

"Accordingly, the applicant is entitled to 2.5 weeks of temporary total disability for the period from April 21 to May 8, 1995, inclusive. At a weekly rate of $200 (two-thirds of his average weekly wage of $300), the applicant is entitled to $500 in compensation for this period.

"The applicant is also entitled to $2,000 in temporary total disability for the 10-week period from May 23 through July 31, 1995, inclusive.

"However, from August 1 through October 9, 1995, a period of ten weeks, the applicant's temporary disability rate is subject to an offset for his earnings at Sand Lake Dump. His temporary disability benefits during this 10-week period are calculated by starting with the applicant's average weekly wage of $300, yielding $3,000 in lost wages. At $6.25 per hour for 106.5 hours, the applicant in fact earned $665.63 during that same period, resulting in an actual wage loss of $2,334.37. The proportion of the applicant's actual wage loss to his average weekly wage is thus 0.778125 to one ($2,334.37 to $3,000), yielding a temporary partial disability rate under sec. 102.43 (2), Stats., of $155.63 per week (0.778125 times $200 per week.) For the ten-week period from August 1 through October 9, 1995, inclusive, then, the applicant was entitled to $1,556.30 in temporary partial disability compensation.

"In sum, the applicant is entitled to $4,056.30 in temporary disability benefits.

"In addition, the applicant suffered a five percent permanent partial disability compared to permanent total disability. This entitles him to 50 weeks of permanent disability, at the weekly rate of $164 (the statutory maximum for injuries sustained in 1995), for a total of $8,200, accruing as of October 10, 1995.

"The total amount awarded to the applicant under this order in temporary disability and permanent partial disability, then is $12,256.30. The applicant approved an attorney fee under sec. 102.26, Stats., at twenty percent of the total fee, the total amount due the applicant's attorney is $2,451.26. After deducting the fee, and costs of $102.50, the amount due the applicant is $9,702.54.

"However, the parties appear to agree that the respondent previously paid a lump sum payment of $2,000 to the applicant and his attorney, evidently $1,600 to the applicant and $400 to his attorney. In addition, the parties appear to agree that the employer has paid the applicant and his attorney $705.20 per month toward the permanent disability, beginning in June 1996. Assuming these payments have continued as represented by the parties, the respondent will have paid, by the end of January 1997, an additional $1,128.32 to the applicant's attorney and $4,513.28 to the applicant himself.

"In sum, then, the employer is apparently entitled to a credit of $6,113.28 towards the amount due the applicant, and of $1,528.32 towards the amount due the applicant's attorney. The amounts remaining to be paid within 30 days, then, are $3,589.26 to the applicant, and $922.94 to the applicant's attorney in fees and $102.50 in costs.

"Additionally the following medical bills shall be paid: to Shell Lake Chiropractic, $116; to Spooner Community Memorial Hospital, $542.41; and to Saint Mary's Medical Center, $7,514.75. The applicant also incurred medical expenses at the Branham-Healy Orthopedic Clinic, in the amount of $87, and at the Duluth Clinic, Ltd., in the amount of $4,459.05, which were paid by an insurer. If the paying insurer was an insurer other than Berkeley Administrators, the insurer shall be reimbursed these sums."

2. Delete the ALJ's Order and insert:

"Within 30 days from the date of this order, as modified, the respondent and the insurer shall pay all of the following:

"(1) to the applicant, William Mitchell, Three thousand five hundred eighty-nine dollars and twenty-six cents ($3,589.26) in disability compensation.

"(2) to the applicant's attorney, Curtiss Lien, the sum of Nine hundred twenty-two dollars and ninety-four cents ($922.94) in fees and One hundred two dollars and fifty cents ($102.50) in costs.

"(3) to Shell Lake Chiropractic, One hundred sixteen dollars ($116).

"(4) to Spooner Community Memorial Hospital, Five hundred forty-two dollars and forty-one cents ($542.41).

"(5) to St. Mary's Medical Center, Seven thousand five hundred fourteen dollars and seventy- five cents ($7,514.75).

"(6) to the insurer who paid the Duluth Clinic, Ltd., bill (if other than Berkeley Administrators), Four thousand four hundred fifty-nine dollars and five cents ($4,459.05).

"(7) to insurer who paid the Branham-Healy bill, (if other than Berkeley Administrators) Eighty-seven dollars ($87)."

ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed January 31, 1997
mitchwi.wmd : 101 : 8  ND § 5.10

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Credibility was not an issue in the commission's modification of the ALJ's order, so a credibility conference was not necessary under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

cc: ATTORNEY RICHARD D DUPLESSIE
WELD RILEY PRENN & RICCI

GREG COON
CLAIM EXAMINER, REESE & ASSOCIATES

ATTORNEY CURTISS N LEIN
LEIN LAW OFFICES

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