CRYSTAL MCDANIEL (DEC'D), Applicant
YES LC, Employer
WIS WC UEF, Insurer
c/o GALLAGHER BASSETT SERVICES INC
On April 10, 2001, an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. Both parties filed timely petitions for review. The commission issued its decision on January 30, 2002. The applicant appealed the commission's decision in Dane County Circuit Court.
Thereafter, the parties to the court action entered into a stipulation
"that the pending appeal be dismissed for the sole purpose of permitting the Commission to assume further jurisdiction and to issue a new order not only determining the correct average weekly wage (as was done in the previous order) but also calculating the amount of benefits payable to date. The undersigned parties further stipulate that death benefits accrue from March 25, 1999 at a weekly rate equal to 2/3 the average weekly wage."
By order dated March 26, 2002, the circuit court dismissed the action and remanded the matter to the commission, for further proceedings consistent with the stipulation.
Based on the stipulation, and upon its prior consideration of the positions of the parties, review the evidence submitted to the ALJ, and consultation with the presiding ALJ, the commission sets aside its prior order and makes the following:
The issue in this case arises from a conceded death benefits claim. The issue is the decedent's average weekly wage.
At the time of her death, the decedent was 25 years, 3 months old. She was earning about $350 per week, working over 60 hours a week, selling magazines. She had two minor children, one of whom had been adopted by his grandparents prior to her death. (1) Because the decedent was under 27 years of age, her wage must be determined in accordance with Wis. Stat. § 102.11(1)(g).
Both parties have submitted reports from vocational experts.
The employer and the uninsured employers fund (collectively, the respondent) rely
on the report of Gregory Wisniewski. Exhibit 2, September 27, 1999 report of
Wisniewski. Mr. Wisniewski's opinion is based in part on information provided by
the respondent's attorney from telephone conversations with the decedent's
parents. The underlying information is that the decedent graduated from high
school in 1991, that she had no other education, that she worked for four years as
a bank teller after graduating from high school, and that she subsequently worked
in magazine sales. (2) The
respondent's vocational expert opined that the decedent would have been making
$374.40 in weekly wages when she turned 27. The employer paid death benefits
on this sum.
The decedent's expert is Timothy J. Greenya. Using essentially the same
underlying information as Mr. Wisniewski, Mr. Greenya posited several annual
wages for the decedent upon reaching age 27.
Under Wis. Stat. § 102.11(1)(g):
"102.11(1)(g) If an employee is under 27 years of age, the employee's average weekly earnings on which to compute the benefits accruing for permanent disability or death shall be determined on the basis of the earnings that the employee, if not disabled, probably would earn after attaining the age of 27 years. Unless otherwise established, the projected earnings determined under this paragraph shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable."
Further, the court of appeals has written:
"The statute does not ask the Commission to determine what a twenty-seven year old would have received for the work the younger employee was doing at the time of injury; rather, the statute directs the Commission to determine what the younger worker would probably earn in the job that he or she would hold after attaining the age of twenty-seven. In adopting sec. 102.11 (1)(g), the legislature recognized that a young worker's wages may be utterly inadequate to form a reliable basis on which to compute his or her probable earnings as a mature member of the labor force. [Citation omitted.] In fixing an award to a young employee, the commission need not assume that the injured worker would have remained in the same job or at the same company until the age of twenty-seven. In addition to the actual earnings at the time of injury, the commission may consider the qualifications of the employee and his or her educational experience."
Evans Brothers v. LIRC, 113 Wis. 2d 221, 227-28 (Ct. App. 1983). Thus, the "average weekly wage" for workers under the age of 27 is rebuttably presumed to be the statutory maximum under Wis. Stat. § 102.11(1). The way the statute is worded, the burden is on the employer to show the worker would earn less than a maximum wage; it makes no sense to expect the applicant to have the burden of rebutting a presumption erected in his favor. See Neal & Danas, Worker's Compensation Handbook, § 4.14 (4th ed. 1997).
The average weekly wage is the basis for calculating the decedent's death benefit under Wis. Stat. §§ 102.46 et seq. The issue here is whether the amount the decedent would probably earn after reaching 27 years of age has been established. If so, her average weekly wage, and thus the death benefit, will be based on that figure. If not, the statutory maximum average weekly wage ($807 per week for injuries in 1999) must be used.
The ALJ found that the maximum wage presumption had been rebutted, and found a $37,255 wage. She found a return to bank work with progression to the next level, while supplementing her income with 20 hours per week of part-time work, were reasonable assumptions, given she had two young children to support. (3)
Both sides appealed. The applicant argues that the maximum wage presumption has not been rebutted by competent evidence, as all of the vocational experts opinions are grounded in hearsay or double hearsay, from the non-testifying parents to the attorney to the vocational expert. The respondent, for its part, argues that $37,255 at age 27 is too high for someone making about $18,200 at age 25.
The commission is not persuaded that respondent's expert opinion lacks foundation. The information came from the decedent's parents, one of whom is the applicant in this case. The applicant's own expert relies on essentially the same information; the applicant regarded the information as sufficiently reliable to submit an exhibit to the ALJ based on it. (4) Beyond that, the history of a 1991 high school graduation with four years employment as a bank teller, if anything, affects positively the reasonable inferences one might draw concerning the wages after turning 27 of a person selling magazines door-to-door as part of a traveling sales team at age 25. In short, the commission concludes that the factors present in this case imbue the information with sufficient trustworthiness to meet the catch all credibility exception under Wis. Stat. § 908.03(24), even though the decedent's parents did not testify, to the extent the applicant has not waived the hearsay objection by submitting her own report based upon it.
However, the commission, after carefully considering the reports submitted by the parties in this case, cannot conclude that the decedent would have earned $37,255 per year after attaining the age of 27. While it is not clear what the decedent had been doing in the four years after her high school graduation after netting out the years she worked as a bank teller, one can reasonably assume it was not much more lucrative than door-to-door sales or bank telling. On the record in this case, the figure of $27,528 per year or $529.38 per week, which is what the decedent would have earned in the "next level" of bank jobs according to Mr. Greenya, best represents what the decedent would probably have earned in the job she would have held after attaining the age of 27 had she not died. The commission cannot conclude that, if earning that wage in that type of employment, the applicant would have also worked part-time.
In sum, the decedent's average weekly wage is $529.38 per week. Based on the stipulation of the parties, the commission calculates the death benefit at $105,876 (200 times $529.38). The conceded death benefit based on an average weekly wage of $374.40 was $74,880. The difference between the conceded death benefit and the appropriate death benefit is $154.98 per week or $30,996 in total.
Pursuant to the stipulation, the death benefit shall be paid in weekly installments at two-thirds of the average weekly wage, or $352.92, payable over 300 weeks. As of May 9, 2002, 163 weeks totaling $57,525.96 has accrued. 137 weeks totaling $48,350.04 remain unaccrued.
The applicant agreed to the payment of an attorney fee set under Wis. Stat. § 102.26 at twenty percent of the additional amount awarded. In total, the future value of the fee equals $6,193.20, which is twenty percent of $30,996. Based on the average weekly wage under this order, the weekly death benefit has increased by $103.32 per week from the conceded $249.60 per week (5) to $352.92 per week. Twenty percent of the additional $103.32 is $20.66 per week, which over 300 weeks equals the fee of $6,193.20. As of May 9, 2002, 163 weeks totaling $3,368.23 in fees have accrued. The remaining 137 weeks of fees, totaling $2,830.97, are unaccrued, and the fee attributable to these weeks is subject to an interest credit of $247.30 to reflect a present value on this unaccrued part of the fee of $2,583.67. In sum, the present value of the entire fee is $5,951.90. The applicant's attorney is also entitled to costs of $525.
The amount currently accrued for payment to the beneficiary is $53,632.73, which
equals the total amount accrued to May 9, 2001 of $57,525.96, less the accrued
fee of $3,368.23, and costs of $525. The commission has obtained information
from the department indicating that the respondent has made some payments on
this amount, and it may take a credit for payments it has made.
The remaining amount to be paid to the beneficiary as it accrues is $45,519.07,
which equals the unaccrued amount ($48,350.04), less the future value of the fees
($2,830.97.) Beginning on June 9, 2002, the death benefit accrues at the rate of
$1,529.32 per month, until the remaining sum is paid.
According to a letter to the commission from the applicant's attorney dated March 11, 2002, he and the attorney for the respondent agree that all benefits should be paid to Brandy McDaniel.
This order shall be left interlocutory to permit further orders and awards as may be appropriate.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The commission's decision and order of January 30, 2002, in this matter are set aside. The findings and order of the administrative law judge are affirmed in part and reversed in part.
The average weekly wage of the decedent, Crystal McDaniel, is Five hundred twenty-nine dollars and thirty-eight cents ($529.38).
Within 30 days of the date of this order, the employer and the Wisconsin Worker's Compensation Uninsured Employers Fund shall pay all of the following, subject to any credit for amounts already paid:
1. To the beneficiary, Brandy McDaniel, Fifty-three thousand six hundred thirty-two dollars and seventy-three cents ($53,632.73) in death benefits.
2. To the applicant's attorney, John D. Neal, the sum of Five thousand nine hundred fifty-one dollars and ninety cents ($5,951.90) in fees and Five hundred twenty-five dollars ($525) in costs.
Beginning on June 9, 2002, and continuing on the ninth day of each month thereafter, the employer and the Wisconsin Worker's Compensation Uninsured Employers Fund shall pay Brandy McDaniel One thousand five hundred twenty- nine dollars and thirty-two cents ($1,529.32) per month until the additional remaining amount of Forty-five thousand five hundred nineteen dollars and seven cents ($45,519.07) has been paid.
Jurisdiction is retained for further orders and awards as are necessary.
Dated and mailed May 7, 2002
mcdanie2 . wrr : 101 : 3 - ND § 4.14
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
Laurie R. McCallum, Commissioner
The commission conferred with the ALJ concerning Mr. Wisniewski's credibility and demeanor. She had no strong impression, either way. Based on this conference, the commission saw no reason to question Mr. Wisniewski's summary of the underlying information he obtained in telephone conversations with the decedent's parents.
The stipulation provides only for calculation of the "benefits payable to date," which would seem to limit the calculation to the date of the court order, March 26, 2002. However, because the applicant's attorney also sought advancement of his fee without protest from the respondent, and because the respondent apparently does not contest the commission's award as a minimum, the commission included language providing for prospective payment.
cc:
Attorney John D. Neal
Attorney Michael C. Frohman
Abby Butler
Assistant Attorney General Stephen Sobota
Deborah K. McDaniel
Appealed to Circuit Court. Affirmed April 3, 2003.
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(1)( Back ) After the hearing, the applicant's attorney stipulated that prior to the decedent's death, one of her children, Brandon McDaniel, had been adopted by his grandparents. Letter from John Neal to the Commission, dated November 13, 2001.
(2)( Back ) The applicant asserts that the respondent's expert erroneously believed the decedent was 26 when she died (she was 25 years and three months) and that she had sold magazines for four years prior to her death (the applicant's attorney asserts it was only four months.) Actually, it appears that the respondent's expert knew the decedent was only 25 when she died, as he referred to her birthday of December 15, 1973, and that she would have been 27 one year and nine months after her death. Exhibit 2, page 4.
(3)( Back ) As noted above, it appears that one of the decedent's children was legally adopted by the child's grandparents before the decedent died.
(4)( Back ) The hearing synopsis indicates that Mr. Wisniewski's September 1999 report at exhibit 2, including the information in its first paragraph that applicant's attorney now challenges as hearsay, was "received by stipulation" at the hearing.
(5)( Back ) This is two-thirds of $374.40.
uploaded 2002/05/13