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

CHARLEEN M MARNNE, Applicant

ADAMS COLUMBIA ELECTRIC COOP, Employer

FEDERATED RURAL ELECTRIC INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95009936

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.

ORDER

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

Dated and mailed: March 12, 1998
marnnch : 101 : 8 ND � 4.8

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The ALJ's factual findings are not in dispute. The applicant worked part time for the employer, an electrical cooperative, as a meter reader. Each month, she and about seventy-five other part-time workers read meters during the same three or four-day period. The meter readers are all paid mileage and the same hourly rate. The employer schedules the particular days each month that it wants the meters read well in advance. While the employer requires the meter readers to drop off their readings by a specific time, it does not set the hours during the three or four-day period when the meter readers are supposed to work. The worker in this case has no other part-time job, although the record does not indicate she limits herself to part- time work. However, the majority of the employer's meter readers do work at other jobs, though many are retired. There are twenty-five other electrical cooperatives in the state; one has full-time meter readers.

An injured worker's temporary disability rate is based on his or her average weekly wage. The general rule is that part- time hours are expanded to full-time hours for that employment for purposes of determining the statutory average weekly wage. Wisconsin Statutes � 102.11 (1)(a) and (c). (1) That expanded weekly wage is then used to calculate the temporary disability rate. Two exceptions to this general framework are set out in Wis. Stat. � 102.11 (1)(f) 1 and 2 (2) and Wis. Admin. Code � DWD 80.51 (4). (3) The exceptions are explained to some extent in DWD Workers Compensation Act with amendments to January 1, 1996, footnote 35.

Wisconsin Statutes � 102.11 (1)(f) 2 applies to a part- time worker who restricts his or her availability to part-time work and who is not otherwise employed. Such a worker's temporary disability benefits may not exceed the average weekly wage of the part-time employment. (4) Wisconsin Statutes � 102.11 (1)(f) 2 does not apply in this case because the record does not establish that the applicant limited her availability to part-time work.

The second exception, and the one at issue here, is from Carr's Inc. v. Industrial Commission, 234 Wis. 466, 290 N.W. 174 (1940), reh'g denied, 234 Wis. 473, 292 N.W. 1 (1940), as codified by Wis. Admin. Code � DWD 80.51 (4). In Carr's Inc., the Wisconsin Supreme Court concluded that part-time workers may comprise such a distinct and separate class of employes that their "particular employment" may reasonably be viewed as that class. Wisconsin Administrative Code � DWD 80.51 (4), provides that a part-time worker's average weekly wage is not expanded if the worker is a member of a regularly scheduled class of part-time employes (though it remains subject to the 24-hour minimum under Wis. Stat. � 102.11 (1)(f).

Recently, the court of appeals remanded a case back to the commission to specifically define what a "regularly scheduled class" means and to identify the criteria to be used to establish the existence of such a class. Threshermen's Mutual Insurance Company v. LIRC and Bloor, case no. 96-0735-FT (Wis. Ct. App., August 29, 1996). In response, the commission issued twin decisions in Wanda Bloor v. Hillsboro Sentry Enterprise, WC case no. 900070531 (LIRC, December 6, 1996) and Belinda Souter v. Pick `N Save, WC claim no. 94045712 (LIRC, December 6, 1996). In Wanda Bloor, the commission stated:

"In applying [the statute and rule dealing with the regularly scheduled class issue], the department adheres to a policy set out in its Methods of Determining Compensation Wage (5) which provides, in relevant part:

`V. Part-Time Employees

`A. Bring wage up to normal full-time employment for that type of work setting, unless the following situations apply:

`1. If the employe is part of a regularly scheduled class of part-time employes, raise to minimum of 24 hour workweek or to actual hours if higher than 24. To be considered part of a regularly scheduled class of part- time employes, an employe must be a member of a group of part-time employes who do the same type of work and who maintain the same type of regular work schedule, of the same hours as each other. Note that at least 10% of total employes must work the same schedule to constitute a class, in the same classification or job title of work. There can't be more than a 5 hour variance from week to week.'

"The department and commission have consistently applied the above policy and principles in determining whether to expand a worker's wages. Thus the term `regularly scheduled class of part-time workers' is appropriately defined based on the policy as follows:

"A worker is a member of a regularly scheduled class of part-time employes if the worker is one of a group of part-time workers who have the same work duties and classification or title, and work the same number of hours and arrangement of hours as each other as part of a common schedule. A worker's hours may vary from the scheduled hours, but by not more than five hours, from week to week. To be considered a class the group of part-time workers must comprise at least ten percent of the employer's total work force."

Bloor, supra, slip op. at 4-5.

In this case, the meter readers all have the same work duties, the same pay, and there are sufficient numbers to constitute a "particular employment." At issue here is whether they work the same number and arrangement of hours under a common schedule (within the five-hour variance permitted under the commission and department policy. The ALJ concluded that the common schedule requirement was not met because there was no set schedule of the actual hours when the meter readers were supposed to read meters during the monthly three or four-day period designated for meter-reading. He therefore expanded the applicant's hours to 40 per week, which is supported by the testimony that one cooperative did employ full-time workers.

The commission agrees with the ALJ's reasoning. The policy announced in Bloor and Souter refers to a number and arrangement of hours worked, not days worked. While the meter readers in this case average 16 or 17 hours per month, the only reasonable inference from the record is that the number and arrangement of hours worked varied from meter reader to meter reader. It would border on speculation to infer from this record that the total number of hours the meter readers worked each month did not vary from individual to individual by more than five hours. The commission would certainly have to speculate the arrangement of hours (or hours of the day) the meter readers worked did not vary by more than five hours from individual to individual. Indeed, the most reasonable inference from the record is that the arrangement of hours did vary by more than five hours, as several of the meter readers were retired while most had other jobs.

The respondent contends this view is not only overly technical, but works a great inequity in terms of an employer's liability for benefits. The employer notes that many of the meter readers were retired, and that, on average, they worked 3.8 hours per week. The employer asserts that the view of the commission allows an injured worker to receive ten times his actual wage in compensation, and is out of line with what the workers themselves expect.

However, the temporary disability compensation of any meter- reader who was retired, and restricted his employment to part- time work, would be limited to his actual wages under Wis. Stat. � 102.11 (1)(f)2. (6) Had the respondent shown the applicant in this case restricted her availability to part-time work, her temporary disability similarly would have been limited. The equity of this statutory arrangement is clear when one considers that the majority of the employer's workers worked elsewhere. If one of those workers were injured while working for the employer and could not work at his other job, a temporary disability rate based on 3.8 hours per week would greatly under-compensate his actual wage loss from the injury. (7)

cc: ATTORNEY WILLIAM J WESTERLUND
WELD RILEY PRENN & RICCI SC

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Footnotes:

(1)( Back ) Wisconsin Statutes � 102.11(1)(a) provides that "The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employe was engaged at the time of the employe's injury." Wisconsin Statutes � 102.11 (1)(c) provides that where earnings cannot be determined under subparagraph (a), because, for example, the person has no fixed earnings, or normal full-time days or weeks are not maintained by the employer in the employment in which the employe worked when injured, then earnings shall be "the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) . . ."

(2)( Back ) Wisconsin Statutes � 102.11 (1)(f) provides: 1. Except as provided in sub. 2., average weekly earnings may not be less than 24 times the normal hourly earnings at the time of injury. 2. The weekly temporary disability benefits for a part-time employe who restricts his or her availability in the labor market to part-time work and is not employed elsewhere may not exceed the average weekly wages of the part-time employment.

(3)( Back ) Wisconsin Administrative Code � DWD 80.51 provides: "(4) The minimum 30 hour [now 24] workweek under s. 102.11 (1)(f), Stats., does not apply to a part-time employe unless the employe is a member of a regularly scheduled class of part-time employes. In all other cases part-time employment is on the basis of full- time employment in such job. However, this subsection does not apply to part-time employes defined in s. 102.11 (1)(f), Stats., who restrict availability in the labor market. As to the employes so defined, those wages will be expanded to the normal part-time or full-time wages unless the employer or insurance company complies with DWD 80.02 (2)(a)."

(4)( Back ) Wisconsin Statutes � 102.11 (1)(f)2 does not technically prevent expansion of a part- time wage, rather it limits the TTD rate determined from that expanded wage.

(5)( Back ) The text is from the May 1996, version of the written policy. The June 1988, revision of the policy was basically the same except that it did not include the sentence "There can't be more than a 5 hour variance from week to week."

(6)( Back ) Under the last sentence of Wis. Adm. Code �� 80.51 (4) and 80.02 (2)(a), it is clear the respondent bears the burden of proof on this issue.

(7)( Back ) Indeed, it is this consideration, availability for work in the labor market, that became the focus of the supreme court's reconsideration of Carr's Inc., at 292 N.W. 4-5.