P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 91030923

An administrative law judge (ALJ) for the Workers' Compensation Division of the Department of Industry, Labor and Human Relations 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 interlocutory order in that decision as its own.


The findings and interlocutory order of the administrative law judge are affirmed.

Dated and mailed March 31, 1995
rockwmi.wsd : 101 : 8   ND 4.3   5.10

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner


1. Overtime.

The employer and the insurer (collectively, the respondent) assert first that the applicant has no right to assume he would have continued to receive overtime hours and that that assumption greatly inflated his loss of earning capacity. In support of this proposition, the respondent cites sec. 102.11 (1)(a), Stats., which states that when determining daily earnings under that statutory paragraph "overtime shall not be considered." Section 102.11 (1)(a), Stats., has an arguable connection to the applicant's claim for loss of earning capacity, since "daily earnings" are used to calculate "average weekly earnings," and "weekly wage loss" is expressed as a percentage of "average weekly earnings" under sec. 102.11 (2), Stats.

Assuming sec. 102.11 (1)(a), Stats., may be read to limit the use of "overtime" in the calculation of "average wage loss," the commission would not reverse on that ground in this case. First, the term "actual wage loss," not "average weekly wage loss" is used in sec. 102.44 (6), Stats. Further, the legislature's use of the distinct terms "loss of earning capacity" and "actual wage loss" in sec. 102.44 (6)(a), Stats., indicates that they are not the same. Moreover, that section deals with the so-called "85% rule," not the calculation of loss of earning capacity itself. The administrative code specifically provides for a comparison of "previous earnings" to "present and potential earnings," when calculating loss of earning capacity. Section Ind. 80.34 Wis. Admin. Code. The rule does not refer to the defined term "average weekly wage loss." Thus, in deciding the applicant's loss of earning capacity, overtime hours should not be automatically excluded simply because of the language in sec. 102.11 (1)(a), Stats.

Second, the so-called "overtime" hours in this case, which varied in number with the season, were so consistently provided that even the respondent's own witness testified that its production workers still average 56 hours per week. Clearly, then, the "overtime" hours were usually worked by the employer's workers. However, under the department's definition of the term, if a worker usually works more than 40 hours per week, the usual excess is not "overtime" at all. See DILHR's Worker's Compensation Act of Wisconsin, note 28 and Neal & Danas, Worker's Compensation Handbook, sec. 4.3 (3d ed. 1990). Thus, not only does sec. Ind. 80.34, Wis. Admin. Code, permit the consideration of overtime in the calculation of loss of earning capacity, but also the disputed hours in this case are not true "overtime" under sec. 102.11 (1)(a), Stats.

2. Vocational experts.

The respondent next argues that the opinion of its vocational expert (Harlow) should been given more weight than the opinion of the applicant's expert (Goldsmith.) The respondent points out that the administrative law judge noted that Mr. Goldsmith did not specifically comment on non-respondent jobs and the loss expected on the basis of them. On the other hand, Mr. Goldsmith did conclude that the applicant's physical restrictions limited him to lower-paying entry level jobs such as dispatcher, customer service representative, and office clerk. He went on to opine that those jobs paid starting wages similar to the $6.80 per hour wage the applicant earned before receiving a raise in April 1994. The commission does not believe that Mr. Goldsmith's opinion must necessarily be disregarded because he gave insufficient consideration to other employment.

Further, as the administrative law judge also noted in her decision, Mr. Harlow's report indicates that the applicant could earn wages in other employment similar to what the applicant now earns from the employer. She reasonably concluded that this statement supported Mr. Goldsmith's conclusions. On the other hand, Mr. Harlow also opined that the applicant's average wage was only $10.00 per hour. This assertion was not particularly credible given the applicant's earnings for 1990 and the first three months of 1991.

As part of its review, the commission independently weighed the vocational reports, the rest of the relevant evidence, and the factors in sec. 80.34, Wis. Adm. Code (specifically the effect of the applicant's physical restrictions on his ability to return to higher-paying, physical work). Having done so, the commission agrees with the loss of earning capacity assessment made by the administrative law judge in this case.

3. Asserted ability to work more than 40 hours.

The respondent also argues in its brief that evidence at the hearing indicates that the applicant may have been able to work more than 40 hours per week. It points out that Dr. Perra thought the applicant could work more than five days in a row, and thus more than 40 in a week, provided he was given reasonable breaks and not too many days in a row. The applicant testified he was unable to do such a schedule and experienced pain even at five 8- hour days per week, and the administrative law judge informed the commission that she found this testimony credible. (1)

Dr. Perra had not examined the applicant for many months as of the date of the hearing. Nor does his opinion state with certainty or probability that the applicant was able to work more than a 40-hour week. Certainly, an individual who worked the hours the applicant worked before his injury is not a reluctant worker. The commission is not inclined to reverse or modify the loss of earning capacity award on this asserted basis.

4. Temporary partial benefits upon return to "full-time work."

Next, the respondent asserts that the administrative law judge erred in awarding temporary partial disability benefits after he returned to work "full-time" in September 1992. Treating doctor Whiffen opined that the applicant did not actually reach a healing plateau until May 3, 1993. This is supported by Dr. Perra's September 4, 1992, letter which indicates that the applicant might improve in terms of pain relief and ability to work, even though he was released to work 40 hours per week. Since the applicant was still healing between September 20, 1992 and May 3, 1993, he was eligible for temporary disability, assuming the disability caused a wage loss. Section 102.43 (2), Stats.

As noted above, whether the applicant has suffered a wage loss depends upon average weekly earnings at the time of injury under sec. 102.11 (3), Stats. Since his earnings at the time of injury included substantial, "non-overtime" hours over the forty that the applicant cannot now work, he has suffered a wage loss. He was therefore entitled to proportional temporary partial benefits until he reached an end of healing and permanent disability could be assessed. See sec. 102.44 (3), Stats.

The respondent argues that the applicant seems to want it "both ways" by seeking compensation for his inability to work more than forty hours per week in the calculation of both his temporary and permanent disability benefits. However, the commission cannot agree. In the both the weeks before and the weeks after the applicant reached his healing plateau, his ability to work and earn wages has been impaired by his work injury. Receiving compensation during both periods for the full effects of his work injury is not having it "both ways" or getting some kind of double benefit.

5. Assessment of functional disability.

Finally, the respondent argues that the rating given by its independent medical examiner was more reasonable than that of Dr. Whiffen. The commission does not agree. The applicant had not only a laminectomy in May 1991, but also a L4 to sacrum fusion and a repeat decompression at the L4-5 level with a right L5 foraminotomy in December 1991 (2). Given the minimum ratings set out in sec. Ind. 80.34 (11), Wis. Admin. Code, a twenty percent rating is reasonable in this case.



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(1)( Back ) The commission conferred with the administrative law judge under Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 283-84 (1972).

(2)( Back ) A foraminotomy is the operation of removing the roof of the intervertebral formanin, done to relieve nerve root compression.