STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

MILTON BURTLEY, Applicant

PORTAGE COUNTY, Employer

SENTRY INS (A MUTUAL COMPANY), Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93005304

The administrative law judge issued his findings of fact and interlocutory order in this case on September 27, 1993, following a hearing on August 10, 1993. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $160, and that the applicant sustained a low back injury on March 16, 1991 (which would be the accrual date for permanent partial disability benefits if any were awarded.)

The issues are whether the conceded injury is covered under the worker's compensation law and whether the applicant is an employe under sec. 102.07, Stats., if recovery is permitted. If a compensable injury is established, the issues also include the nature and extent of disability and liability for medical expenses. Other issues include possible claims for vocational retraining claim and loss of earning capacity and whether the award, if any, should be made by interlocutory order.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. It now sets aside the administrative law judge's findings and order, and substitutes the following therefor:

FINDINGS OF FACT and CONCLUSIONS OF LAW

The applicant was an inmate at the Portage County jail, serving a 590-day sentence for drunk driving and other traffic offenses. While incarcerated, he began doing uncompensated "trusty" work which included sweeping, mopping and waxing the jail floors, washing laundry and dishes and similar tasks from a list. The work was all done at the jail, with the exception of one occasion when he shoveled snow off the roof of the county library under supervision of county maintenance men. The work was not done as community service work (despite a form indicating otherwise) or as a term of probation or parole. However, the sheriff does not make the work available to all inmates. Thus, the applicant was doing the work more-or-less voluntarily; if he did not want to do it the sheriff would have assigned someone else to do the work.

At any rate, the applicant wrote to his sentencing judge, and asked if he could be paid for the work he did at the jail, with the money applied toward his outstanding fines. The judge agreed by letter dated February 13, 1991, to allow the applicant to be paid, provided his pay was remitted directly to the clerk of courts and applied toward fines. (The judge specifically stated that no community service work was available to the applicant because he was not on probation.) The applicant was to be paid $4 per hour for unskilled work, and $5 per hour for skilled work. Exhibit 2. The county actually wrote checks to the applicant for payment, which he then signed over to the clerk of courts.

The applicant was injured on March 16, 1991, while working in the jail. The injury occurred as the applicant was lifting a mop bucket and he experienced a sharp pain in his back. He went to the hospital, was treated and returned to the jail. The applicant complained of back and right leg pain, radiculopathy was diagnosed and an MRI performed. The MRI, done on May 16, 1991, showed a herniated disc at L4-5.

The applicant's doctor, David M. Henneghan, M.D., found that the injury on March 16, 1991, directly caused permanent disability. Dr. Henneghan released the applicant to work subject to work restrictions on July 30, 1991, and assessed a 10% permanent partial disability compared to disability to the body as a whole. Dr. Henneghan also opined that the applicant reached a healing plateau on August 31, 1992, and that he was not a good candidate for surgery. An independent medical examiner hired by the respondent, Samuel Idarraga, M.D., agreed about causation and the date of the healing plateau, but assessed 4o permanent partial disability and set somewhat less restrictive work restrictions.

The main dispute, however, is not about the degree opermanent disability, or the disputed medical costs, but whether the alleged employer is liable to pay any worker's compensation at all. The issue of whether this type of work by prisoner at a county jail is covered under the worker's compensation act has not previously been addressed in any reported Wisconsin appellate decisions. However, in a reported decision that dealt with an injured state prisoner, the supreme court wrote:

"The general rule is that convicts are usually denied compensation for injuries received while doing prison work since there is no contract of hire. Although this court has never addressed itself to this particular question, this was evidently the rule in Wisconsin as well. Evidently the legislature felt this was the case since it created sec. 56.21 [now 303.21], Stats., (1)  to deal with the problem. [Citations omitted, footnote added.],

Kopacka v. ILHR Department, 49 Wis. 2d 255, 258 (1970).

The supreme court cited 12 Larson, Workmen's Compensation, sec. 47.31 (a) (1993) in support of the general proposition that convicts are denied compensation for injuries from prison work. Professor Larson explains that:

"a convict cannot and does not make a true contract of hire with the authorities by whom he is confined. The inducements which might be held out to him, in the form of extra food or even money, are in no sense consideration for an enforceable contract of hire."

Professor Larson goes on to note that rule is less controversial when the prisoner has no choice but to work, or when a prisoner elects to work but could be ordered to work if he did not. However, the courts have a greater inclination to find employe status when prisoners are lent out to other state agencies or private employers. Larson, at sec. 47.31 (c) and (d).

In this case, the applicant did not work for another agency or private employer. Further, although the applicant volunteered to work and was compensated for the work, the sheriff could have required him to do jail maintenance and housekeeping work without compensation under sec. 302.37 (4), Stats.  Because he did not have Huber or some other type of work release privilege, he was unable to offer his services on the open market. The commission concludes that, under Kopacka (2),   the applicant and the county had no true employment contract. Thus, his injury is not covered under ch. 102, Stats., subject of course to a specific statute providing otherwise.

Current law provides compensation for permanent disability to an inmate of a state prison who is injured in performance of assigned work. In most cases, compensation is paid at the rate that would be payable as if the injury were covered under ch. 102, Stats., subject to a $10,000 limit. State prison inmates working on a work release program or in a transitional employment program are covered under ch. 102. Stats., directly as employes of the employer for whom they provide the services under the program. See sec. 102.07 (16), Stats. Finally, adults performing community service work are covered as employes of the county for whom they perform the work. Section 102.07 (14), Stats.

As the applicant concedes, neither of these various statutory exceptions providing direct coverage nor sec. 303.21, Stats., explicity applies. He was not in a state prison or performing community service when he was injured. While it is true that the worker's compensation statute is remedial in nature, the commission may not find coverage when none exists. The commission therefore concludes that, because no true employment contract existed between the applicant and the county, the March 16, 1991 injury is not covered under the worker's compensation act.

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

ORDER

The decision of the administrative law judge is reversed.

The application is dismissed.

Dated and mailed August 31, 1994.
ND § 2.12

/s/ Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The applicant argues that the statutes should be "harmonized" to permit coverage. The commission disagrees. The general rule, as discussed above, is that prisoners are not covered under the worker's compensation act because there is no contract of hire. This argument applies where, as here, jail officials have the authority to require labor, even if they do not normally do so, since there is no true contractual freedom. Given that the applicant could have been forced to do the same housekeeping and maintenance jobs on the prison premises under sec. 302.37 (4), Stats., and that without Huber privileges he has no real ability to contract elsewhere or on any terms but those dictated by the county or the court, this cases falls within the Kopacka general rule. It may be that the general rule is now so subject to exceptions that it is no longer truly "general," but that does not mean it has been implicitly repealed.

The administrative law judge decided for the applicant on the applicant's theory that he was "selected" by the judge and apparently the county to do the paid trusty work, so there was a contract of hire. Indeed, the record does indicate that work was treated as a privilege that not every county prisoner was entitled to. In support of its "selection argument," the applicant cites an Iowan case dealing with a general relief claimant who was injured in a "workfare" type situation. Polk County v. Steinbach, 374 N.W.2d 250 (Iowa 1985). The commission appreciates the theoretical and analytical similarities between the two situations. However, the fact remains that the general rule in Wisconsin is against coverage for prisoners in the absence of a specific provision stating otherwise.

The commission did not confer with the administrative law judge who presided at the hearing because witness credibility and demeanor were not at issue. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). Rather, the commission reaches a different legal conclusion after making essentially the same findings of fact as the administrative law judge.

cc:
Attorney Richard J. Symonds
Nash Podvin Tichscherer Huttenberg Weymouth & Kryshak

Attorney Peter L. Hessert
Patterson Richards Hessert Wendorff & Ellison

Attorney Lewis J. Molepske
Louis J. Molespke Law Offices

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Footnotes:

(1)( Back ) Section 56.21 [now 303.21], Stats., deals with inmates of state prisons, not county jails.

(2)( Back ) The Kopacka court cited an opinion of the state attorney general as support for its statement that the general rule against compensation for prisoners applies in Wisconsin. In fact, two such opinions are on point. The first dealt with prior statutes under which county prisoners could be either held out for labor under a contract made by the county sheriff and approved by the circuit court, or required to work on the county rock pile. The attorney general concluded that this was not a contract of hire because the prisoners had nothing to say about such employment which was presumably part of their punishment. As there was no contract of hire, the prisoner was not an employe and there was no coverage under the worker's compensation act. The opinion went on to note that the only exception was for injured prisoners at state institutions. 1936 Att'y General 286.

The second opinion stated that a county sheriff had no statutory authority to require a prisoner to go outside the jail to work. The attorney general did state a county could hire a prisoner to do hard labor outside the prison if the prisoner had Huber privileges, but then it would be an employer subject to the Worker's Compensation Act. This opinion, however, noted that under sec. 53.37 (4) [now 302.37 (4), Stats.,] a sheriff could require a county prisoner to do maintenance or housekeeping work around the jail. 1962 Att'y General 116.

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