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

LARON THOMAS, Applicant

MARIGOLD FOODS INC, Employer

LUMBERMENS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998004945

The applicant submitted a petition for commission review alleging error in the administrative law judge's findings and interlocutory order issued on May 14, 1998. At issue is the amount of child support obligations to be offset from the applicant's award.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's order except as modified. The commission makes the following:

MODIFIED FINDINGS OF FACT

Delete the last sentence of the first paragraph on the final page of the administrative law judge's Findings of Fact and substitute therefor:

"The applicant has child support obligations requiring payment of 17 percent of his income or a total of $501.25 which shall be deducted from the applicant's award for temporary total disability and temporary partial disability and paid directly."

Also delete the first sentence of the administrative law judge's Interlocutory Order and substitute therefor the first two sentences of the commission's Interlocutory Order set forth below.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and modified in part in accordance with the above findings. Within thirty days from date, the employer and insurance carrier shall pay to the applicant Laron Thomas, the sum of Seven thousand four hundred thirty-three dollars and eighteen cents ($7,433.18); to the applicant's attorney Daniel Zitzer, the sum of Two thousand seventy-eight dollars ($2,078) as an attorney's fee and Three hundred seventy-seven dollars and fifty-three cents ($377.53) as reimbursement for costs incurred in the action and to the Milwaukee County Clerk of Court as child support obligations, the sum of Five hundred one dollars and twenty-five cents ($501.25).

Dated and mailed December 3, 1999
thomasl.wmd : 175 : 5  ND § 5.42

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant contends in his petition for commission review that the administrative law judge erred by ordering $1,348.85 to be deducted from the total indemnity benefits awarded to the applicant for temporary disability and permanent partial disability and by ordering that sum to be paid directly to the Milwaukee County Clerk of Court as child support obligations. The commission agrees. Under Wis. Admin. Code § HSS 80.02(13)(b) gross income subject to child support includes net proceeds resulting from worker's compensation or other personal injury awards intended to replace income. In the current case the applicant was awarded seven and one-half percent permanent partial disability as compared to amputation at the right shoulder in addition to an amount for temporary partial disability as well as temporary total disability. As the Wisconsin Court of Appeals noted in an unpublished decision Bottomley v. Bottomley (Case No. 96-0486-FT) (1996) worker's compensation qualifies as gross income only when it is intended to replace income lost due to the underlying injury. The Court of Appeals held in the Bottomley case that since the applicant had received permanent partial disability for his left upper extremity that this award was akin to a personal injury award for pain and suffering and that this kind of award was not available for child support under Wis. Admin. Code § HSS 80.02(13)(b). The commission finds that the award of permanent partial disability was not intended to replace income and therefore is not subject to child support pursuant to Wis. Admin. Code § HSS 80.02(13)(b). However, the applicant's award for temporary partial disability and temporary total disability benefits is awarded as a replacement for income lost due to the work injury and therefore is subject to an offset for child support payments and the administrative law judge appropriately required 17 percent of the applicant's award for temporary disability benefits to be paid to the Milwaukee County Clerk of Court as child support obligations. The commission has modified the administrative law judge's Order in accordance with this determination that the award for scheduled permanent partial disability benefits was not subject to an offset for child support payment.

cc: ATTORNEY DANIEL L ZITZER
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC

ATTORNEY JOSEPH BERGER
OTJEN VAN ERT LIEB & WEIR SC

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