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

LLOYD E TREMAIN, Applicant

LODI CANNING COMPANY INC, Employer

WAUSAU GENERAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-043601

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on June 29, 2000. The employer and its insurance carrier (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the correct average weekly wage was used to calculate the applicant's disability benefits paid as a result of the conceded work injury of August 19, 1999.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The facts of this case include that the applicant worked as a maintenance employee for the employer for 11 summers, including the summer of 1999. In 1999, he began his employment at the start of the pea packing season on June 26, 1999. He worked through the end of that season on July 25, 1999. On July 26, 1999, he continued his employment with the employer, but as of this date the employment was within the corn packing season. There was no change in his job duties, except for the type of vegetable being canned. He sustained a conceded work injury on August 19, 1999, and was paid temporary total disability from that date to February 7, 2000. The dispute is over the question of whether his average weekly wage was properly calculated.

Wis. Stat. § 102.11 (1)(b) provides that weekly earnings for seasonal employees shall be determined as they would be for an employee working full time "in similar service and the same or similar nonseasonal employment." The department has settled on 44 hours as a representative number of work hours to be used in the computation of a seasonal employee's wages, that being its interpretation of the above-quoted statutory language. The 44 hours is multiplied times the individual's regular hourly wage to arrive at the average weekly wage.

The dispute in this case is whether the applicant fits within the definition of "seasonal employee," because Wis. Stat. § 102.11 (1)(b) also provides that employment is not a seasonal employment "if it extends during a period of more than 14 weeks within a calendar year." The applicant asserts that his work was not seasonal employment while the employer asserts that it was. If the applicant's employment is determined to be nonseasonal then his average weekly wage can be figured under Wis. Stat. § 102.11 (1)(d), which takes his actual earnings with the employer within the 52 weeks preceding his date of injury and divides that figure by the number of weeks in which he actually worked for the employer during that 52-week period. This figure would be higher for the applicant than it would be using the method of multiplying 44 hours times his regular hourly wage, as is done under 102.11 (1)(b).

The administrative law judge found that the pea packing season is a separate season from the corn packing season, and therefore the periods the applicant worked during the seasons could not be combined to come up with the more-than- 14 weeks necessary to make his employment nonseasonal.

However, the only definition of seasonal employment found in Chapter 102 is found in Wis. Stat. § 102.11(1)(b), and that is: "...employment which can be conducted only during certain times each year." Vegetable canning can only be conducted during a certain summer/fall period each year. The commission does not interpret Wis. Stat. § 102.11(1)(b) as contemplating distinctions being drawn among the different types of vegetables being canned within the vegetable canning season. If an employee-employer relationship extends beyond 14 weeks, Wis. Stat. § 102.11(1)(b) provides that "in no event" shall it be considered seasonal employment. An employee who continues in an employment relationship beyond 14 weeks does not remain a seasonal employee simply because during that employment he/she changes work duties from canning one vegetable to another.

The next question is whether the applicant's 1999 employment is nevertheless seasonal employment by virtue of the fact that he worked only seven weeks and five days during 1999, because his injury ended his ability to work. Respondents' Exhibit 1 indicates that the applicant worked for the employer for fifteen weeks in the 1997 canning season, and for fourteen weeks and three days in the 1998 canning season. The reasonable inference from the similar starting date which the applicant had in 1999, is that but for his work injury, he again would have worked over 14 weeks for the employer. Under the circumstances in which an employee is hired for a job contemplated by the employer and the employee to last longer than 14 weeks, and the employee is injured before those 14 weeks expire, the most reasonable interpretation of the statute is to denominate such employment as nonseasonal. From the evidence submitted at the hearing held in this matter, the inference is drawn that the applicant's employment was contemplated to last beyond 14 weeks in 1999.

Finally, the applicant received bonus payments amounting to 75 cents times the number of hours he worked for the employer in 1999, representing a 25-cents-per- hour bonus for perfect attendance, and a 50-cents-per-hour bonus for remaining to help clean up. He was paid these bonuses for the pea packing season after it ended in July, and for the corn packing season after it ended on September 15, 1999. Bonuses are in one sense gratuities, but ultimately they are paid for services rendered. They are included in the earnings calculation made under Wis. Stat. § 102.11(1)(d), and therefore shall be included in the calculation of the applicant's average weekly wage.

In summary, the applicant was working in nonseasonal employment when injured on August 19, 1999, and therefore his average weekly wage shall be calculated pursuant to Wis. Stat. § 102.11(1)(d), including his bonus pay. At the hearing, the applicant's attorney asserted that the applicant's gross wages for the 52-week period in question amounted to $9,787.36. Wage records at Respondents' Exhibits 2 and 3 are unclear with respect to exactly how much the applicant earned from the employer within the 52 calendar weeks before the injury date of August 19, 1999. Accordingly, the matter will be remanded for calculation of the applicant's average weekly wage, in accordance with the above findings. The parties should be able to resolve the factual question of how much the applicant earned from the employer within the 52 calendar weeks in question, and after dividing that figure by the number of weeks actually worked for the employer during such period, arrive at the applicant's average weekly wage. However, should disagreement arise over this calculation, jurisdiction remains with the department to resolve it.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. The applicant's 1999 employment with the employer is found to have been nonseasonal employment, and his average weekly wage is to be calculated pursuant to Wis. Stat. § 102.11(1)(d). The matter is remanded to the parties for purpose of calculation. Credit shall be given for any previous disability payments made by the respondents.

Jurisdiction is reserved to resolve any disputes concerning this calculation.

Dated and mailed January 25, 2001
tremall.wrr:185 : 1 :  § 4.7

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission reversed the administrative law judge's decision based on the undisputed facts and the commission's analysis of the relevant statutes. No credibility questions arose and therefore no consultation with the administrative law judge was necessary.

cc: ATTORNEY HELEN L SCHOTT
STAFFORD & NEAL SC

ATTORNEY TIMOTHY J YANACHECK
STILP & COTTON

Appealed to Circuit Court.

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