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

PAULINE H PUNZEL, Applicant

TAMMY & ART ELLIOTT, Employer

CORNELLIER ENTERPRISES INC, Employer

MIKE CORNELLIER, Employer

TRAVELERS CASUALTY & SURETY COMPANY, Insurer

WORKER'S COMPENSATION DECISION

Claim No. 1996042092

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. Timely petitions for review were filed by Mike Cornellier and by Cornellier Enterprises.

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 born in 1935. She began working at a roadside fireworks stand on or about June 26, 1996. The applicant filed an application contending that she sustained an injury to her right wrist and arm arising out of employment with Cornellier Enterprises on June 30, 1996.

Hearing was held on June 9, 1999. The parties presented several issues, including whether the applicant was an employe of Cornellier Enterprises or some other employer, her average weekly wage, whether she in fact sustained an injury arising out of employment with any employer while performing services growing out of or incidental to that employment, the nature and extent of disability from such an injury, and liability for medical expense.

The presiding ALJ, in a decision dated October 4, 1999, found that Mike Cornellier was the applicant's employer; that Cornellier Enterprises was liable under Wis. Stat. § 102.06; that her average weekly wage was $200; that the applicant in fact sustained an injury arising out of employment with Mike Cornellier and while performing services growing out of or incidental to that employment; that she was entitled to temporary total disability for a 108.5-week period totaling $14,466.31 and to permanent partial disability at 20 percent compared to amputation at the wrist totaling $10,666.40; and that Cornellier Enterprises was liable for $6,529.05 in medical expense. Although the commission issues its own findings of fact and conclusions of law to address arguments raised on appeal, it agrees with the ALJ's resolution of each of these issues.

1. Who is liable?

a. The operation of the stand.

The commission shall first deal with the jurisdictional issue of who, if anyone, was the applicant's employer, and the potential liability of Cornellier Enterprises under the "contractor under" statute, Wis. Stat. § 102.06. Resolution of these issues depends, to a large extent, on how the fireworks stand where the applicant worked was operated.

Mike Cornellier is the sole proprietor of MLC, which he describes as a marketing consulting firm. (1) He testified that his business sets up stands to sell fireworks at retail. Essentially, he would rent tents, secure locations, obtain fireworks to sell at retail, and deliver the fireworks to the various tent locations. The stands were open about two weeks a year, from late June through July 5. He would charge a fee based on the square footage of the tent, but admitted none of the stands or tents generated enough revenue to allow him to collect the full fee. Transcript, pages 39-41. He had done this for the past five or six years at the time of the hearing in 1999. Transcript, page 51.

Diane James lives with Mike Cornellier and is the mother of Cornellier's children. She works 50 weeks a year in a factory, and takes a two-week vacation each year to run what Cornellier referred to as "our fireworks stand." Transcript,
page 54. Mike Cornellier testified that Ms. James, who did not appear at the hearing, operated the fireworks stands including the one where the applicant was hurt. She never made a cent from the operations, however. Mike Cornellier admitted that after the individuals who actually manned the stands were paid, he would take the rest of the money collected for his fee and to collect his expenses, leaving nothing for Ms. James in any of the five or six years the stands were operated. Transcript, page 44, 46-7, 53-4.

Mike Cornellier testified that he never had any of his own employes, but rather, set up the tents for Ms. James (or perhaps the individuals who manned them) as an independent contractor. He testified that Ms. James (or perhaps her sister Tammy Elliot who helped her) hired all the people to run the tents. Transcript, page 45-49. Mike Cornellier thought the stand workers were paid by a percentage of the gross take.

The workers who testified had a different impression of how the fireworks stands were operated. Bradley Kessler worked at a fireworks stand set up by Mr. Cornellier in the summer of 1996. He thought that both Mike Cornellier and Ms. James operated the stands. He also testified that Ms. James's sister, Tammy Elliot, had hired, paid him, and told him how to do the job. However, Mr. Kessler believed Ms. Elliot reported to Mike Cornellier and Ms. James. As far as Mr. Kessler knew, Mike Cornellier was the "main person." Mr. Kessler testified also that he was paid $5.25 per hour.

Terry Punzel is the applicant's son. He was hired to work at a fireworks stand by Ms. Elliot and Ms. James. The first year he worked at a stand was 1993; he too was working at a stand in the summer of 1996. He had talked to Ms. Elliot on the phone, but Mike Cornellier provided all of his on-the-job training. Transcript, page 88. On at least one occasion, due to a death in the family, Mike Cornellier actually worked with Terry selling fireworks from the tent. Transcript, page 88. He saw Mike Cornellier less in the later years, testifying it was because the day-to- day operations in Janesville was left to Ms. Elliot while Mike Cornellier and Ms. James oversaw the stands in other cities. He indicated that Ms. James's brother, Larry James, oversaw the stands in still other locations. His testimony, too, indicated he was paid by the hour. Transcript, page 90. (2)

This testimony was corroborated by the applicant herself and Mike Kolze, another worker who sold fireworks from a stand in 1996. They both testified that Terry Punzel cleared their hire with Ms. Elliot. They also testified that they were paid in cash by Terry Punzel, whom they assumed got the money from Ms. Elliot. (Terry Punzel in fact testified that Ms. Elliot gave him $200 for his mother, the applicant.)

Ms. Elliot also testified. She indicated she was just trying to help Ms. James out, and just did what her sister told her to do. She testified that Ms. James was operating the stands with Mike Cornellier. Transcript, page 11. She testified that if a customer wanted to buy firecrackers in cash, he would write a check to Mike Cornellier.

The stands also had signs that said "Cornellier Fireworks" on the side. However, those signs did not refer to Mike Cornellier. Rather the signs were provided by the business of Mike Cornellier's father (Larry Cornellier, Sr.)

Larry Cornellier, Sr., and his wife own the stock of Cornellier Enterprises, a holding corporation which in turn owns and operates Cornellier Fireworks. Cornellier Fireworks sells fireworks. Cornellier Enterprises claims a number of employes for tax purposes, but they do not include the applicant, Mike Cornellier, Ms. James, Tammy Elliot, or any of the other persons listed above.

About one-half of Cornellier Enterprises's revenue comes from sales to individuals like Mike Cornellier who in turn sell the fireworks at retail. The ALJ's careful examination of Cornellier Enterprises's representative, Brad Laver, brought out in detail the manner in which the fireworks are sold. Mr. Laver testified that customers like Mike Cornellier order quantities of fireworks, remove them from Cornellier Eneterprises's premises, sell them at retail, and then return what is left over to Cornellier Enterprises. When the Fourth of July celebrations are over, and the customer returns the unused fireworks, he is charged only for what he has sold. The left over fireworks are packaged and held for the customer for the next year. Mr. Laver testified that this is the system used for all the approximately fifteen "wholesale customers" who deal with Cornellier Enterprises. Transcript, page 122.

Cornellier Enterprises also sells at retail itself, in outlets in several cities. None of the outlets, however, are those operated by Mike Cornellier and Ms. James. Retail sales provide one-half, or slightly less, of Cornellier Enterprises sales.

Mr. Laver testified that the sales to Mike Cornellier make up about five percent of Cornellier Enterprises total sales, transcript, page 125-26. The record indicates that Mike Cornellier bought fireworks exclusively from Cornellier Enterprises.

Mr. Laver also testifies that Cornellier Enterprises prefers that its "wholesale customers" not compete with each other. Normally, these customers work out their own sales territories, but if someone comes in to buy fireworks for resale in a location that has already been taken, Cornellier Enterprises might tell the customer that someone is there already. Transcript, page 133. Cornellier Enterprises would direct such a customer to another site, to boost its overall sales. Transcript, page 134.

b. Who is the "employer?"

The first question is whether Mike Cornellier is the injured worker's employer. An "employe" is any person in the service of another under any contract of hire, express or implied. "Employes" include helpers and assistants of employes if employed with the actual or constructive knowledge of the employer. Wis. Stats.
§ 102.07 (4). An "employer" is someone who has three or more employes whether in one or more locations, or who has fewer than three employes but pays wages of $500 or more in any calendar quarter. Wis. Stat. § 102.04(1)(b).

In this case, Mike Cornellier rents the tents that house the fireworks stands, rents the real property where the stand is erected, obtains the necessary permits, buys all the fireworks, delivers most of them to the stands, and collects all the proceeds that remain after the workers at the stand were paid. He provided training to stand workers, and occasionally manned a stand himself. Mike Cornellier may operate the various stands as a joint enterprise with Ms. James, but nonetheless, the applicant was providing services to Mike Cornellier when she worked at one his stands in the summer of 1996. At that time, Mike Cornellier had at least four employes (the applicant, Kolze, Kessler and Terry Punzel) working for him in various locations. The applicant was Mike Cornellier's employe on June 30, 1996, and Mike Cornellier was an employer subject to Wis. Stat., ch. 102.

c. Is Mike Cornellier a "contractor under " of Cornellier Enterprises?

The next issue is whether Mike Cornellier was a "contractor-under" for Cornellier Enterprises within the meaning of Wis. Stat. § 102.06. If so, Cornellier Enterprises, as primary contractor, would be jointly liable for the applicant's disability claim.

The version of the statute in effect on the date of injury, Wis. Stat. § 102.06 (1995-96), provides:

"102.06 Joint liability of employer and contractor. An employer shall be liable for compensation to an employe of a contractor or subcontractor under the employer who is not subject to this chapter, or who has not complied with the conditions of s. 102.28 (2) in any case where such employer would have been liable for compensation if such employe had been working directly for the employer, including also work in the erection, alteration, repair or demolition of improvements or of fixtures upon premises of such employer which are used or to be used in the operations of such employer. The contractor or subcontractor, if subject to this chapter, shall also be liable for such compensation, but the employe shall not recover compensation for the same injury from more than one party. The employer who becomes liable for and pays such compensation may recover the same from such contractor, subcontractor or other employer for whom the employe was working at the time of the injury if such contractor, subcontractor or other employer was an employer as defined in s. 102.04. This section does not apply to injuries occurring on or after the first day of the calendar quarter beginning after the day that the secretary files the certificate under s. 102.80(3)(a), except that if the secretary files the certificate under s. 102.80(3)(ag) this section does apply to claims for compensation filed on or after the date specified in the certificate."

The secretary of industry labor and human relations filed the certificate under Wis. Stat. § 102.80(3)(a) in the first half of 1996. Pursuant to the last sentence of Wis. Stat. § 102.06, the statute ceased to apply, and claims such as the applicant's began being paid from the uninsured employer's fund on July 1, 1996, the day after the injury in this case.

To summarize, Wis. Stat. § 102.06 applies in situations where a subcontractor fails to procure worker's compensation insurance, leaving its employes unprotected. The statute imposes joint liability on the principal contractor for injuries to the subcontractor's employes. The principal contractor's liability ultimately depends, of course, on the injured worker proving he was injured while providing services for which the principal contract would have liable had those services been provided to the principal directly. The rationale for the "contractor under" provision is simple:

"To protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on the presumably responsible principal contractor, who has it within his power, in choosing subcontractors, to pass upon their responsibility and insist upon appropriate compensation for their workers. [Emphasis in original.]"

Green Bay Packaging, Inc., v. DILHR, 72 Wis. 2d 26, 37 (1976).

The supreme court has also defined a "contractor under" for the purposes of the statute to be

"One who regularly furnishes to a principal employer materials or services which are integrally related to the finished product or service provided by that principal employer."

Green Bay Packaging, at 72 Wis. 2d 36. The court of appeals has divided the definition for analytical purposes, making it clear that the injured worker must show that (1) the "contractor under" provided materials or services to the primary contractor, (2) that the services or materials were provided regularly, and (3) that the activities of the "contractor under" were integrally related to the services of the primary contractor. Chapman v. LIRC, 156 Wis. 2d 286, 291-93 (1990). It is not necessary that the primary contractor pay the contractor-under for the services or materials; indeed, in Chapman, the employer was found to be a contractor-under of DNR even though the employer paid DNR to use log timber from the state forests.

Although Wis. Stat. § 102.06 begins by referring to the primary contractor as an "employer" the statute does not make the primary contractor the employer of the injured worker. The supreme court held that the primary contractor is more analogous to an insurer. Culbertson v. Kieckhefer Container Co., 197 Wis. 349, 352 (1928); Neal & Danas, Workers Compensation Handbook, § 8.40 (4th ed., 1997).

Similarly, Wisconsin case law is subtly different from that in other states which seem to limit the "contractor under" doctrine to cases where the primary contractor contracts out work to the subcontractor that would normally go to the primary contractor's own employes. 4 Larson, Workers Compensation Law § 70.06(1) (MB 1999). For example, applying the Green Bay Packaging test, the Wisconsin supreme court found the franchiser of a "Weight Losers" program to be a "contractor-over" vis-à-vis an individual Weight Losers franchisee, as the franchisee regularly furnished services integral to the services provided by the franchiser. Maryland Cas. Co. v. ILHR Department, 77 Wis. 2d 472 (1977). Thus, the court held that the franchiser was liable for a work injury sustained by an instructor of an uninsured franchisee.

In this case, Cornellier Enterprises characterizes the relationship between Cornellier Enterprises and Mike Cornellier as that of vendor and wholesale customer. Cornellier Enterprises asserts that that Mike Cornellier did not regularly furnish material or services to Cornellier Enterprises, and that the sales made to Mike Cornellier were not integral to Cornellier Enterprises's business.

The commission agrees that a normal, arm's length sale between a wholesaler and retailer-a simple sale of goods-generally would not amount to the provision of materials or services by the retailer that are integrally related to the finished product or services provided by the business of the wholesaler. However, this case does not involve a normal, arm's length sale between a retailer and a wholesaler.

Mike Cornellier did not pay Cornellier Enterprises for the fireworks he sold in his stands until after the sales at retail were made. Even then, he paid only for what he actually sold, and returned the rest without charge to Cornellier Enterprises. A substantial part of the entrepreneurial risk of the retail sales operation conducted by Mike Cornellier, thus, was borne by Cornellier Enterprises. Mike Cornellier did not have to worry about the risk of buying too much product, because Cornellier Enterprises would take back anything at no cost to Mike Cornellier. The only fireworks Mike Cornellier sells are Cornellier Enterprises. Given the relatively few retailers that Cornellier Enterprises deals with, Mike Cornellier appears to be part of a vertical sales structure operated by Cornellier Enterprises which, while involving nominally different business entities, creates a primary contractor/contractor-under relationship under Wis. Stat. § 102.06.

The commission's conclusion is supported by the case relied upon by Cornellier Enterprises, Deep Rock Oil Co. v. Derouin, 194 Wis. 369 (1927). There, the court examined whether a primary contractor/contractor-under relationship was created by a contract which, among other things, provided that Deep Rock Oil Co. of Wisconsin (Wisconsin Company) agreed to sell and deliver its products to Brown County Deep Rock Oil Company (Brown County Company) at a stipulated price, and that Brown County Company would not resell the products for a price less than that set by Wisconsin Company. In Deep Rock, the injured worker argued that the contract did not create the relationship of vendor and vendee, but that Brown County Company was used by Wisconsin Company as a mere medium through which Wisconsin Company marketed its products subject to Wisconsin Company's direction and control. The court noted:

"This thought is . supported by the absence of any provision fixing the time or manner of payment of the products thus delivered. But, on the other hand, the contract is just as barren of any provision indicating that an agency or the relationship of bailor and bailee was intended. There is no provision in the agreement by which the Wisconsin Company retains title to the products delivered. There is no provision requiring the Brown County Company to account for the proceeds of the sales of the product. The Wisconsin Company reserved no right to direct the method of conducting the business. Taking the agreement by its four corners, we must come to the conclusion that when products are delivered by the Wisconsin Company to the Brown County Company title thereto passes to the Brown County Company, and that thereafter the Wisconsin Company has no title thereto or lien thereon. [Italics in original.]"

Deep Rock Oil Co., at 194 Wis. 375.

In the case now before the commission, of course, there is no written contract. However, unlike the case in Deep Rock, the manner in which Mike Cornellier paid for the fireworks that he obtained from Cornellier Enterprises is established in the record. Again, no payment was made until after the fireworks were sold at retail, and then payment was required only for what was actually sold at retail. Mike Cornellier must account to Cornellier Enterprises for the fireworks he resold to make this arrangement work. Given that no payment was made until the time the unsold fireworks were returned, and that Mike Cornellier could return without charge what he did not sell, Cornellier Enterprises retained some right with respect to the fireworks after they were first removed from its premises for retail sale; the fireworks either had to be returned or paid for. While Cornellier Enterprises did not exercise a great deal of direction and control over the day-to- day operation of the fireworks stands operated by Mike Cornellier, it did influence the sales territories or geographic location of the stands where its products were sold. In short, the facts in this case demonstrate that Mike Cornellier was a "medium" through which Cornellier Enterprises sold its product at retail.

Viewed in this light, Mike Cornellier provides services that are integrally related to the product and services provided by Cornellier Enterprises; that is, the retail sale of fireworks. Although Mike Cornellier provides these services for only two weeks a year, given the obviously seasonal demand for fireworks, the commission concludes that Mike Cornellier provides the services regularly. The applicant alleges that at the time of her injury, she was setting up one of the stands that Mike Cornellier used to sell Cornellier Fireworks. Had the applicant been so injured while working directly for Cornellier Enterprises, Cornellier Enterprises would have been liable for the injury. In sum, Cornellier Enterprises is liable under Wis. Stat. § 102.06 for the applicant's injury in this case, to the extent the alleged injury and disability are proven.

3. Remaining issues.

The next issue is the applicant's average weekly wage at the time of the injury. She alleged an average weekly wage of $200, and the record establishes she was paid $200 for the four days she worked for the employer suggesting, if anything, a higher wage than that alleged by the applicant. On appeal, none of the respondents expressly challenge the ALJ's finding that the applicant's average weekly wage was $200. Accordingly, the commission finds that the applicant's average weekly wage at the time of the alleged injury was $200.

The commission also concludes that the applicant sustained a compensable injury while working for Mike Cornellier. Specifically, the applicant injured her right wrist while working at one of Mike Cornellier's fireworks stands on June 30, 1996. The injury occurred when the applicant slipped and fell on the blacktop, while opening a tent flap to set the tent up for the day. The record contains no persuasive evidence proving that the applicant was not injured at work on June 30, 1996, or that she was engaged in some kind of personal deviation when injured. Indeed, on appeal, no one argues that the applicant did not injure herself as the ALJ found.

The applicant treated initially at a hospital emergency room on the date of injury. An x-ray showed a slightly comminuted fracture of the distal radius, and possibly the ulna. A splint was placed by C.D. Hugelman, D.O., and the applicant was instructed to follow up with an orthopedist the next day.

The applicant saw R.N. Horswill on July 1, 1996, and he reports performing surgery on July 3, 1996. Exhibit C, Horswill note dated July 30, 1996. According to the report of an independent medical examiner, Dr. Horswill performed an open reduction internal fixation with a Synthes titanium plate. The applicant was placed in a cast and underwent occupational therapy. Travelers exhibit 2, report of Cederberg, page 2.

On August 15, 1996, Dr. Horswill suggested the applicant would end healing within three months. Exhibit F. The record does not indicate that the applicant treated with Dr. Horswill again until July 30, 1998, though she submits bills for occupational therapy through May 2, 1997.

On July 30, 1998, the applicant returned to Dr. Horswill. On this date, he noted a moderate limitation of wrist motion with a mild loss of hand function. Based on the measurements of her wrist motion, he rated permanent partial disability at 20 percent. In a practitioner's report prepared on form WC-16B at a later date, Dr. Horswill opined that the applicant reached an end of healing on July 30, 1998. He also opined that the applicant's disability, including the 20 percent permanent partial disability rating, was directly caused by the June 30, 1996 fall at work.

The insurer for Cornellier Enterprises retained an independent medical examiner Paul Allan Cederberg, M.D. His report is at exhibit Traveler's exhibit 2. He agreed with the two year healing period set by treating doctor Horswill, stating specifically that he agreed she reached maximum healing as of July 30, 1998 . However, he rated permanent partial disability at a slightly lower 15 percent at the wrist, based on loss of motion of the wrist and reduced grip strength.

The applicant claims temporary disability to the July 30, 1998 end of healing date set by both Dr. Horswill and IME Cederberg. Cornellier Enterprises challenges the claim, asserting that the applicant has the duty to establish wage loss, and must prove that she was unable to return to work at even limited duty during the healing period, or at least prove she advised the employer of her limited ability to return to work. Cornellier Enterprises also asserts that the applicant must prove she was actively treating to be eligible for temporary disability. However, the commission cannot agree with Cornellier's assertions in this case.

In general, temporary disability is due during an injured worker's "healing period," GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460 (1994), unless the employer offers the applicant work within any restrictions imposed as a result of the injury. Wis. Adm. Code § DWD 80.47. The "healing period" is the period prior to the time when the injured worker's condition becomes stationary, Knobbe v. Industrial Commission, 208 Wis. 2d 185, 189-90 (1932) and ends when there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

As Cornellier Enterprises points out, an injured worker ordinarily must be submitting to treatment and convalescing during his healing period. In Larsen, for example, the injured worker's doctor concluded that the worker's condition had stabilized, rated permanent disability, and released the applicant from treatment. Many months later, increased symptoms make surgery necessary. The court held that the applicant was not entitled to temporary disability during the 18-month hiatus in treatment. Larsen, supra, at 9 Wis. 2d 389-93.

However, the commission has recognized that the general rule requiring ongoing treatment may not apply where, as here, the employer denies liability for the work injury. In such a case, it may not be reasonable to expect an injured worker to undergo treatment that he or she must pay for himself at the price of forfeiting the right to temporary disability. On this point, the commission has previously held:

"Stated another way, while an employer generally is no longer liable for temporary disability once an injured worker has recovered as much as the permanent character of his injuries permit, this assumes the recovery is aided by both treatment and convalescence. Larsen, supra. The commission declines to hold that an employer may refuse to pay for treatment for a compensable work injury, and then simply point to an applicant's unchanging condition after that refusal as an endpoint of healing."

Carole Lee v. Famous Fixtures, WC Claim no. 96000857 (LIRC, July 2, 1997).

In this case, of course, all of the respondents denied liability for the applicant's injury and her treatment expense went unpaid. In addition, this is not a case (as in Larsen) where Dr. Horswill pronounced an end of healing and rated permanent disability at some point prior to July 30, 1998. Nor did Dr. Cederberg indicate that the absence of treatment established an end of healing. Under the facts of this case, the applicant need not prove that she was continuously treating from the date of the work injury to June 30, 1998 to prevail in her claim for temporary disability.

Likewise, the applicant's temporary disability claim is not barred by the fact she did not seek work from the respondents within her restrictions during the healing period. It is generally held that an injured worker's only duty is to communicate any work restrictions imposed during a healing period to the employer. Neal & Danas, Worker's Compensation Handbook § 5.10 (4th ed., 1997). The burden is then on the employer to provide work within those restrictions. Wis. Adm. Code § DWD 80.47.

Here, as best as the commission can tell, the applicant was never released to work subject to temporary restrictions. Further, since the respondents are all denying they were the "employer" it is hard to say who the restrictions should have been given to, had there been restrictions. Finally, Mike Cornellier, the individual ultimately found to be the employer only provided work two weeks a year anyway.

Mike Cornellier challenges the 20 percent permanent partial disability rating. However, given the limited motion, the loss of hand strength and function, the fact the applicant was required to undergo surgery requiring an open reduction and fixation to repair her wrist, and her considerable symptomology described at the hearing, a twenty percent rating is reasonable.

4. Award.

Accordingly, the applicant is entitled to temporary total disability from June 30, 1996 to July 30, 1998, a period of 108 weeks and three days. At the weekly rate of $133.33 (two-thirds of the average weekly wage of $200), the total award for temporary disability equals $14,466.67. The applicant is also entitled to permanent partial disability at 20 percent compared amputation of the hand at the wrist. This works out to 80 weeks of permanent disability compensation, also at the rate of $133.33 per week, totaling $10,666.40, all of which has accrued.

In total, then, the amount of disability awarded under this order is $25,133.33. The applicant agreed to a fee under Wis. Stat. § 102.26 at twenty percent on the amount awarded, or $5,026.67. That amount, together with costs of $114.00 shall be paid to the applicant's attorney within 30 days. The amount remaining after deducting the fees and costs, $19,992.67, shall be paid to the applicant within 30 days.

In addition, as set out in the forms WC-3 in exhibits B and G, the applicant incurred the following reasonable and necessary medical expenses: $257 from Mercy Hospital (services from April 29, 1997 through May 2, 1997 billed under patient no. 9711900023), none of which has been paid; $6,272.05 from Mercy Hospital (services from July 26, 1996 through December 27, 1996 billed under patient no. 9620800027), none of which has been paid; $6,779.95 from Mercy Health System (services on July 3, 1996 billed under patient no. 9618400256), none of which has been paid; $2,547.75 from MHS Physician Service, none of which has been paid; $357 from C. David Hugelmeyer, none of which has been paid.

Because Dr. Horswill expects that further treatment will be necessary for the applicant's condition (exhibit G), jurisdiction is reserved to permit awards for additional disability and medical expense which may be sustained in the future.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 30 days, Cornellier Enterprises and its insurer shall pay all of the following:

1. To the applicant, Pauline Punzel, Nineteen thousand nine hundred ninety-two dollars and sixty-seven cents ($19,992.67) in disability compensation.

2. To the applicant's attorney, James A. Meier, Five thousand twenty-six dollars and sixty-seven cents ($5,026.67) in fees and One hundred fourteen dollars and no cents ($114.00) in costs.

3. To Mercy Hospital, the sum of Two hundred fifty-seven dollars and no cents ($257.00) (for patient no. 9711900023) and Six thousand two hundred seventy-two dollars and five cents ($6,272.05) (for patient no. 9620800027) for medical treatment expense.

4. To Mercy Health System, Six thousand seven hundred seventy-nine dollars and ninety-five cents ($6,779.95) for medical treatment expense.

5. To MHS Physician Service, Two thousand five hundred forty-seven dollars and seventy-five cents ($2,547.75) for medical treatment expense.

6. To C. David Hugelmeyer, Three hundred fifty-seven dollars and no cents ($357.00) for medical treatment expense.

Mike Cornellier shall reimburse Cornellier Enterprises for all amounts paid under this order.

Jurisdiction is reserved for further findings, orders and awards as may be warranted.

Dated and mailed March 3, 2000
punzel.wrr : 101 : 3  ND § 2.15  § 5.6

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY JAMES A MEIER
MEIER WICKHEM LYONS & SCHULZ SC

ATTORNEY CATHERINE A THOMAS
LAW OFFICES OF JOHN J SPINDLER

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Footnotes:

(1)( Back ) For the sake of clarity, the commission refers simply to "Mike Cornellier" rather than his trade name.

(2)( Back ) He did not expressly say he was paid by the hour, but testifying about discussions he had with James about pay, he said "some times the hours would conflict."