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


JOHN J KRAUS * , Applicant

STRATFORD AREA FIRE DEPT, Employer

EMPLOYERS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1992031725


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 June 22, 1999
krausjo.wsd : 145 : 7 ND § 4.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the respondent asserts that the ALJ erred when he determined that the applicant's average weekly wage should be set at the maximum allowed by statute pursuant to Wis. Stat. § 102.07(7), and Wis. Admin. Code § DWD 80.30 because the applicant was a member of a volunteer fire department at the time of his injury. The respondent asserts that the presumption under the administrative rule that a volunteer firefighter is to be paid based on the maximum wage rate in effect as of the time of his injury is obviously designed to address those situations where a volunteer firefighter is not paid a wage for his work in that capacity. Where, as here, the applicant earned a wage - $8 per hour - a specific showing has been made that the maximum wage is improper and the presumption is overcome. (Respondent's brief at p. 4).

The commission disagrees. The commission concludes that this case is controlled by City of Elroy v. LIRC, 152 Wis. 2d 320 (Ct. App. 1989). In that case, the court rejected the argument that either a civilian wage or a volunteer firefighter's wage constituted a specific showing that the maximum was not proper. The respondent contends that in Elroy, unlike the instant case, no evidence was presented concerning the actual earnings paid to the worker in his capacity as a volunteer firefighter. The respondent presumes that this is because the worker was not paid for his services. In Elroy, at p. 323, the court held that the employer "contests the commission's determination that evidence of volunteer firefighters' work histories and earning capacity as civilians prior to injury should not be considered in setting their rates of compensation." The city argued that the statute was not applicable to its case because "there is no similarity between the pay of volunteers and the pay of full-time firemen." Elroy, at p. 326.

However, the commission's decision in the Elroy case makes it clear that the employe did receive compensation for his services as a volunteer firefighter. The commission concluded that:

"as previously stated, Ind. 80.30 also allows a respondent to rebut the presumption of maximum earnings, but only to the extent that there is a disparity between the maximum earnings figure and the `usual going earnings' paid to full-time firefighters. Respondent correctly points out that under this system a volunteer firefighter such as the applicant may end up receiving compensation which bears no relation to his actual earning record or capacity. The legislature intended this result as a protection for volunteer firefighters and as an incentive for them to perform this important work." Sorenson v. City of Elroy, (W.C. case No. 83-49944, LIRC January 27, 1988).

The respondent further asserts that the ALJ erred in issuing an interlocutory order preserving the applicant's right to bring a claim for loss of earning capacity in the future. The applicant filed an action seeking permanent partial disability benefits for loss of earning capacity, and respondent asserts that the applicant cannot receive benefits for loss of earning capacity unless he has suffered an unscheduled injury. The commission agrees. The commission is aware that there is expense to respondent and the department as a result of participating in a hearing. However, the applicant's loss of earning capacity was not the only issue before the ALJ, there was also the issue of the applicant's wages which was resolved. While the ALJ denied the applicant's motion to dismiss the pending application without prejudice, the ALJ relying on Transamerica dismissed the applicant's claim for permanent partial disability because the claim was premature. The respondent asserts that in Transamerica Insurance Company v. LIRC, 54 Wis. 2d 272 (1972), there was a conceded unscheduled permanent partial disability. However, in this case, the ALJ specifically found that there was substantial evidence that the applicant sustained unscheduled injuries as a result of the industrial accident; although, the evidence submitted at the hearing was insufficient to allow the ALJ to determine whether those unscheduled injuries resulted in permanent partial disability. For example, Dr. Steven Lumberson noted on a WC-16-B dated April 27, 1998 that the applicant "suffered permanent injuries to his right hip and low back." The independent medical examiner disagreed. The ALJ is essentially exercising his discretion to allow the applicant to present evidence with regard to any unscheduled permanent partial disability he sustained as a result of the work injury. This has the same effect as granting the applicant's motion to dismiss without prejudice. The commission, after reviewing the record in this case, agrees that the ALJ's exercise of this discretion was proper, and did not amount to an abuse of discretion.

 

PAMELA I. ANDERSON, COMMISSIONER, (Dissenting)

I am unable to agree with the result reached by the majority herein and I dissent. While I agree with the majority on the question of the average weekly wage, I disagree on the question of loss of earning capacity.

The administrative law judge's bench decision included the following language:

"At the commencement of the proceedings, the applicant made a request and a motion to voluntarily dismiss the pending application for hearing without prejudice. The applicant asserted that this request to voluntarily dismiss the application without prejudice was a matter of right or in the alternative that I should exercise my discretion and grant the request based upon the fact that the applicant needed additional medical support to advance his claim for loss of earning capacity and permanent partial disability for an unscheduled injury. That request for dismissal was renewed at the end of the applicant's prima fascia case. I reversed my decision on the initial motion, and now I make the following ruling:

"The request for voluntary dismissal of the application for hearing is denied. The applicant should have known that his medical evidence was inadequate to support a claim for loss of earning. It's a fundamental worker's compensation law, that in order to advance a claim for permanent partial disability for an unscheduled injury and a loss of earning capacity relating thereto that you must have medical evidence of permanent partial disability to the body as a whole. If the applicant was not aware of this earlier in the case, he should have been aware of it by the time he received the respondent's vocational report in September 1998.

"I would have greater sympathy for the applicant's position regarding this request for voluntary dismissal if the applicant had requested permission to voluntarily withdraw the application at an earlier date; however, at no time prior to the date of the hearing did the applicant make any attempt to contact the Department and make that request. As a result, significant labor and expense was put out to get the parties here today to hold the hearing and all of that could have been avoided had the request been made in a timely fashion. Consequently, the applicant's request for voluntary dismissal of the application for hearing is denied."

After all of this, the administrative law judge then finds that his claim for loss of earning capacity is premature and he allows the applicant the opportunity to file a new claim for permanent partial disability and loss of earning capacity. The problem with this is that without proof of permanent partial disability for an unscheduled injury, there is no possible claim for loss of earning capacity. If there was evidence in the record of permanent partial disability for the back, then the administrative law judge's decision would be appropriate but here he is doing the same thing as dismissing the claim without prejudice. The administrative law judge concedes that the employe did not have proof of permanent partial disability for the back at the hearing. Dr. Clark found that there was no permanent partial disability to the back. The administrative law judge indicates, "I find that there is substantial evidence that the applicant did sustain unscheduled injuries as a result of the industrial accident, however, the evidence submitted to me today is inadequate for me to determine whether those unscheduled injuries resulted in permanent partial disability."

There is another forum to resolve a case like this where the administrative law judge finds that "The applicant's attorney is denied an attorney fee on this award because of his ineptness in handling the applicant's loss of earning capacity claim, namely advancing a loss of earning capacity claim without medical evidence to substantiate that the applicant sustained permanent partial disability due to an unscheduled injury."

For these reasons, I believe that the administrative law judge abused his discretion when he allowed the applicant to refile his claim. I would have dismissed the loss of earning capacity claim and found no permanent partial disability.


__________________________________________
/s/ Pamela I. Anderson, Commissioner

cc: ATTORNEY KATHLEEN E GRANT
GRANT LAW FIRM SC

ATTORNEY JEFFREY J STRANDE
PIEHLER & STRANDE SC


NOTE: The correct spelling of this applicant's last name, and the spelling used in the subsequent court proceedings (see below),  is Krause.   The spelling Kraus was used in the commission's decision.


Appealed to Circuit Court. Affirmed March 1, 2000. Appealed to the Court of Appeals.  Affirmed per curiam November 28, 2000.

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