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

DIANA C ARONSON, Applicant

CAREGIVERS HOME HEALTH OF OSHKOSH, Employer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998019934

The applicant and the respondents each submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 14, 1999. Answers to the petitions, as well as briefs, were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury of March 23, 1998.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first six pages of the administrative law judge's decision are affirmed and reiterated as if set forth herein, with the following two exceptions.

First, delete the second full paragraph on page 4 of the decision.

Second, delete the paragraph which begins with the third line from the bottom of page 6 of the decision.

The remainder of the administrative law judge's decision, beginning with the first full paragraph on page 7 of the decision, is also deleted. The findings set forth below are substituted therefor.

"Based on the internal inconsistencies in the applicant's testimony, the inconsistencies between the medical records and her testimony, the minor nature of the accident, and the lack of findings in the objective testing, Dr. Barron's opinion that the applicant reached a healing plateau with no permanent disability by June 25, 1998, is accepted as credible. The medical treatment received and disability incurred subsequent to that date has not been credibly demonstrated to have been attributable to the effects of the work injury of March 23, 1998.

"It is further found that the applicant's average weekly wage was $720, based on a 40-hour week at $18 per hour. The applicant was paid at the rate of $18 per hour when driving in connection with her work, as she was doing at the time she was injured. She worked more than 40 hours in some weeks and less than 40 hours in other weeks, with the evidence demonstrating that she averaged between 30 and 32 hours per week. The commission and the department have always interpreted Wis. Stat. § 102.11(1)(a) to require raising a part-time employe's wages to the full-time equivalent of the employment involved. This interpretation is codified in Wis. Admin. Code ch. DWD 80.51(4). The only exceptions to this "bumping up" rule are where the employe is not employed elsewhere and limits herself to part-time employment, or where she is a member of a regularly scheduled class of part-time employes. The employe did not limit herself to part-time employment and worked independently of the schedules of the other nurses employed by the employer. She was not a member of a regularly scheduled class of part-time employes.

"The employer asserted that full-time employment for its traveling nurses was defined as 32 hours per week, but the record contains no evidence of such a definition. Regardless, the standard for full-time employment under Wis. Stat. § 102.11(1)(a) is determined based on the full-time schedule in the local labor market for the type of employment involved, not just on one employer's definition of full- time employment. There is no evidence in the record to rebut the presumption of a 40-hour week for full-time employment such as that performed by the applicant.

"The applicant is therefore entitled to a higher temporary disability rate than the one which the insurance carrier used to compute and pay temporary disability benefits. Recalculation of these benefits is as follows: temporary total disability from March 23, 1998 through April 13, 1998 is two weeks and five days at $480 per week totaling $1,360. Temporary partial disability from April 12, 1998 through April 26, 1998 totals $754.58. Renewed temporary total disability from April 26, 1998 through June 25, 1998 is eight weeks and three days at $480 per week totaling $4,080. The applicant should have been paid a total of $6,194.58 in temporary disability benefits. She was actually paid $4,986.58. The balance due is $1,208 less a 20 percent attorney's fee in the amount of $241.60. Costs of $42.10 will also be subtracted.

"The medical expenses claimed by the applicant are all for medical services, prescriptions, or travel incurred after the healing plateau, with the exception of certain charges from Belville Fletcher Chiropractic and Spine Therapy Center of Green Bay. The nonindustrial insurer, United Health, paid $541.50 to Belville Fletcher Chiropractic which was actually the responsibility of the insurance carrier (United Heartland), and therefore United Heartland will be ordered to reimburse United Health in this amount. The compensable charge from Spine Therapy Center amounts to $296.60, which was also paid by United Health, and which will also be ordered reimbursed by United Heartland. United Heartland made payments by mistake of fact in the amount of $1,180 to Spine Therapy Center, $61 to Family Practice of Neenah, and $1,062 to Theda Clark Medical Center of Neenah. Assuming United Health is responsible for such payments, they would owe reimbursement to United Heartland, but United Health is not a party within the jurisdiction of this order.

"Since the issues of bad faith and inexcusable delay were raised at the hearing held on September 22, 1999, but not resolved, the order will be left interlocutory only with respect to those issues. No findings are made herein with regard to either such issue."

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the employer and its insurance carrier shall pay to the applicant the sum of Nine hundred twenty-four dollars and thirty cents ($924.30); and to applicant's attorney, Scott Woldt, fees and costs in the total amount of Two hundred eighty-three dollars and seventy cents ($283.70).

Also within 30 days from this date, United Wisconsin/United Heartland, Inc. shall reimburse United Health in the total amount of Eight hundred thirty-eight dollars and ten cents ($838.10).

Jurisdiction is reserved solely with respect to the issues of bad faith and inexcusable delay.

Dated and mailed February 23, 2000
aronsdi.wrr : 185 : 7   ND § 4.7   § 5.42

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission's partial reversal was with respect to the amounts of medical expense due, consistent with the healing plateau and the nature of the applicant's injury, as determined by both the administrative law judge and the commission. The commission concurred with the administrative law judge's credibility/demeanor impressions of the witnesses at the hearing.

cc: ATTORNEY SCOTT C WOLDT
CURTIS LAW OFFICE

ATTORNEY MICHELLE L DANIELSON
HALLING & CAYO SC

Appealed to Circuit Court. Affirmed November 1, 2000.

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