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


JOHN DAVID VANHOF, Applicant

SEATTLE MARINERS, Employer

ASSOCIATED INDEMNITY CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996064671


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was a left-handed pitcher for the respondent's farm team in Appleton. Applicant sustained a compensable injury to his left shoulder on or about August 1, 1996. He was paid for the entire 1996 and 1997 seasons. The respondent released him on March 27, 1998.

Applicant received $1,200 per month beginning the first week in April of 1996 and ending September 12, 1996. That period included post-season playoffs. Applicant also received cash for meal money and living expenses of $210 in March of 1996 during the training season, which began the first week of March, and for exhibition games which began the third week of March. The applicant worked pursuant to a contract. The "Duration And Conditions Of Employment" portion of the contract states, in relevant part:

B. This Minor League Uniform Player Contract obligates Player to perform professional services on a calendar year basis, regardless of the fact that salary payments are to be made only during the actual championship playing season. The salary paid is in part based on considerations in addition to the actual performance of services during the championship playing season. Player therefore understands and agrees that his duties and obligations under this Minor League Uniform Player Contract continue in full force and effect throughout the calendar year, including Club's championship playing season, Club's training season, Club's exhibition games, Club's instructional, post-season training or winter league games, any official play-off series, any other official post-season series in which Club shall be required to participate, any other game or games in the receipts of which Player may be entitled to a share, and any remaining portions of the calendar year. Player's duties and obligations shall continue in full force and effect until October 15 of the calendar year of the last championship playing season covered by this Minor League Uniform Player Contract.

The contract further provides, under "Payment":

B. The monthly payments under this Minor League Uniform Player Contract will be made in two (2) semi-monthly installments on the 15th(1) day and last day of the month after the beginning of Club's championship playing season. The obligation to make such payments to Player shall start with the beginning of Club's championship playing season or such later date as Player reports for championship season play. The obligation to make such payments shall end with the termination of Club's championship playing season and any official play-off series in which the Club shall participate, or upon the termination of this Minor League Uniform Player Contract, whichever shall occur first. Player shall not be entitled to any payment under this Minor League Uniform Player Contract for any period that he is on a Major League Active, Disabled or other Inactive List. If Player is in the service of Club for part of Club's championship playing season only, he shall receive such proportion of the rate set forth above as the number of days of his actual employment in any month compares to the number of days in said month.

The initial issue to be decided is the applicant's average weekly wage as of August 1, 1996. Earnings are computed under Wis. Stat. § 102.11(1), which provides:

(a) Daily earnings shall mean the daily earnings of the employe at the time of the injury in the employment in which the employe was then engaged . . .. 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.

(b) In case of seasonal employment, average weekly earnings shall be arrived at by the method prescribed in par. (a), except that the number of hours of the normal full-time working week shall be such hours and such days in similar service in the same or similar nonseasonal employment. Seasonal employment shall mean employment which can be conducted only during certain times of the year, and in no event shall employment be considered seasonal if it extends during a period of more than fourteen weeks within a calendar year.

(c) In the case of persons performing service without fixed earnings, or where normal full-time days or weeks are not maintained by the employer in the employment in which the employe worked when injured, or where, for other reason, earnings cannot be determined under the methods prescribed by par. (a) or (b), the earnings of the injured person shall for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-times basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) or (b).

(d) Except in situations where par. (b) applies, average weekly earnings shall in no case be less than actual average weekly earnings of the employe for 4 calendar quarters before his or her injury within which the employe has been employed in the business, in the kind of employment and for the employer for whom the employe worked when injured. Calendar weeks within which no work was performed shall not be considered under this paragraph. This paragraph applies only if the employe has worked within a total of at least 6 calendar weeks during the 4 calendar quarters before his or her injury in the business, in the kind of employment and for the employer for whom the employe worked when injured. . . .

(e) Where any things of value are received in addition to monetary earnings as a part of the wage contract, they shall be deemed a part of earnings and computed at the value thereof to the employe.

The administrative law judge found applicant's average weekly wage to be $276.94 based on taking the $1,200 per month salary and dividing it by 4 1/3 weeks in a month. (2) The respondent argues that applicant's weekly wage should be $111.15. The respondent maintains that because applicant's contract specifically provided that he was obligated to perform services on a calendar year basis, despite the fact that payments were made only during the "championship season," his salary should be divided by 52 weeks. The respondent's calculation of the applicant's average weekly wage is premised on the argument that that the applicant's average weekly wage cannot be determined under the methods set out in Wis. Stat. § 102.11(1).

Applicant's earnings can not be determined using. par. (a) as there was no actual evidence, and insufficient evidence from which to draw a reasonable inference, of the applicant's daily earnings or the number of days and fractional days normally worked per week at time of injury. Paragraph (b) does not apply as the applicant was employed more than 14 weeks. Therefore, his service for the respondent does not meet the definition of seasonal employment. Paragraph (c) provides a method of determining earnings if for some reason earnings cannot be determined under par. (a) or (b). However, as with par. (a), there was insufficient evidence to establish, or from which to draw a reasonable inference, the "usual going earnings paid for similar services on a normal full-times basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) or (b)."

The respondent argues that Wis. Stat. § 102.11(1)(d), by its plain language, does not apply because it is limited to cases in which paragraphs (a) and (c) have applied. The commission disagrees. By its plain language, par. (d) applies unless paragraph (b) applies. Paragraph (d) is merely an alternative method of determining average weekly wage. Even if wages can be determined under (a) or (c), if the average weekly wage calculated under (d) is higher than that found using (a) or (c), then (d) prevails. Being unable to calculate earnings under (a) or (c), however, does not prevent using the earnings found when applying (d).

Paragraph (d) requires evidence of what the applicant made in the fourth quarter of 1995, and the first three quarters of 1996. The evidence indicates that applicant received $1200 per month in April, May, June, and July of 1996. The evidence and inferences drawn from that evidence indicate that the applicant received $210 per week for each week in March of 1996. The applicant's earnings in the four quarters before the injury totaled $5640.00. (3) Thus, wages earned March 1 through August 1 for work performed in those weeks are used to calculate the average weekly wage.

Applicant by contract was paid from March through September when he would normally actually perform services. The commission infers, absent evidence to the contrary, that applicant did in fact perform services in each week. The evidence in the record to the contrary is that applicant did not perform services in 1996 after his injury. Accordingly, the commission finds that the applicant worked each week from the first week in March to August 1, for 22 total weeks of work. While the respondent could have called the applicant to perform work during the off- season, the fact is it did not. The applicant's earnings in the four quarters preceding the injury divided by the weeks worked in that period results in an average weekly wage of $256.36. The applicant's temporary disability rate is $170.91.

While certainly more complete and precise information about the applicant's earnings and days and weeks worked could have been provided, by both respondent and the applicant, the commission finds that the evidence, and inferences drawn from the evidence, is sufficient to calculate applicant's earnings under Wis. Stat. § 102.11(1)(d).

The respondent argues that applicant did not have any actual wage loss during the 1996 and 1997 off-season because he was a year round employe. The respondent argues that he was fully compensated for 1996 and 1997 pursuant to his contract. The administrative law judge rejected such argument. The commission agrees with the administrative law judge that the applicant was entitled to temporary benefits in the off-season while in a healing period and totally unable to work or working elsewhere at a reduced wage. The applicant's injury prevented him from, or reduced his ability to, earn wages elsewhere during the off-season.

Temporary total disability is due from September 11, 1996 through April 6, 1997 (29 weeks and 3 days at $170.91 per week, totaling $5,041.85. Temporary partial disability is due from August 30, 1997 through January 31, 1998, based on stipulated earnings of $95.45 per week during those weeks (22 weeks at $107.28 per week, totaling $2,360.16). Temporary total disability is due from February 1, 1998, through March 3, 1998 (4 weeks and 2 days, at $170.91 per week, totaling $740.61). Temporary partial disability is due from March 4, 1998, through March 27, 1998, based on earnings during those weeks of $210.00 (3 weeks and 2 days at $30.91 per week, totaling $103.03). Temporary total disability is due from March 28, 1998 through May 7, 1998 (5 weeks and 5 days at $170.91 per week, totaling $996.98). The total temporary disability benefits due the applicant through May 7, 1998, are $9242.63. Subtracted from that amount is the sum of $2,091.00 previously paid by the insurer. Temporary benefits due and owing totals $7,151.63. Pursuant to a request made under Wis. Stat. § 102.26(3), applicant's attorney's fee is fixed at $1,430.33. Costs in the amount of $22.50 shall also be deducted from the award.

In making the foregoing findings, the opinions of the primary treating physician, Dr. Yocum, were deemed the most credible as to the extent of disability. However, the record only contains Dr. Yocum's office notes through May 7, 1998. Consequently, temporary disability can only be awarded thorough that date.

Jurisdiction shall be reserved regarding applicant's entitlement to temporary disability after May 7, 1998, permanent disability, and any other potential claims under ch. 102.

NOW, THEREFORE, this

ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing findings and, as modified, are affirmed. Accordingly, within 30 days of the date of this order the respondent and its insurance carrier shall pay to the applicant, as accrued compensation, the sum of five thousand six hundred ninety- eight dollars and eighty cents ($5,698.80); to Attorney Tony W. Welhouse, as accrued fees, the sum of one thousand four hundred thirty dollars and thirty-three cents ($1,430.33); and, as reimbursement for costs, the sum of twenty-two dollars and fifty cents ($22.50).

Dated and mailed April 22, 1999
vanhojo.wrr : 132 : 1 ND § 4.7

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY TONY W WELHOUSE
WELHOUSE LAW OFFICE

ATTORNEY MICHAEL D STOTLER
BREN PRZYBECK & STOTLER


Appealed to Circuit Court. Affirmed November 3, 1999.  Appealed to the Court of Appeals.  Affirmed May 25, 2000, per curiam.  [html]  [pdf]

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Footnotes:

(1)( Back ) It is the department's policy, for salaried employes, to take the amount paid by the month and convert it to weeks by dividing by .66667 or multiplying by 3/13. See department's handout Methods of Determining Compensation Wage (May 1996)

(2)( Back ) Doing so, as noted by the applicant, results in an average weekly wage of $276.92, not $276.94 as found by the ALJ.

(3)( Back ) The footnote to Wis. Stat. § 102.11(1)(d) indicates that the quarter in which the injury occurs is counted as one of the four quarters. Yet, Wis. Stat. § 102.11(1)(d) also states that weeks in which no "work" is "performed" are not counted. Since applicant did not perform any actual services after August 1, wages paid after the date of injury are not included in the calculation.