SUSAN SOMERVILLE, Applicant

HEYDE HEALTH SYSTEM INC, Employer

WAUSAU UNDERWRITERS INSURANCE CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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 order in that decision as its own, except that it makes the following modifications:

1. After the last sentence in the tenth paragraph of the ALJ's Findings of Fact, insert:

Further, the insurer shall pay the employer the amount of $2,526.14 that would otherwise have been due the applicant in temporary total disability.

2. The second paragraph of the ALJ's Interlocutory Order is modified to include the payment required by the commission's Interlocutory Order.

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

Within 30 days from the date of this order, the insurer shall, in addition to the payments required by the ALJ's Interlocutory Order, pay the employer the amount of Two thousand five hundred twenty-six dollars and fourteen cents ($2,526.14) as reimbursement of the sick leave benefits credited.

Dated and mailed Jnauary 29, 2004
sommers . wmd : 101 : 8   ND § 5.9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The applicant received sick leave benefits in lieu of temporary total disability, so the ALJ ordered the employer to credit her sick leave account pursuant to Wis. Stat. § 102.30(3). The employer appeals, asking that the ALJ's order be modified to require the insurer to pay the amount of temporary disability that would otherwise have been due directly to the employer. Neither the insurer nor the applicant has responded to the employer's petition.

While perhaps this type of payment is not directly authorized by Wis. Stat. § 102.30(3), it is contemplated by Wis. Stat. § 102.30(7) (1)   which deals with the analogous situation of payment of temporary disability by non-industrial insurers. Further, the commission has previously recognized an insurer's decision to reimburse the employer under these circumstances. Linda Starkl v. JC Penney Milwaukee Catalog, WC claim no. 90065879 1996 WI Wrk Comp LEXIS 400 (LIRC, June 13, 1996). Finally, of course, the insurer does not object or respond to the employer's request to amend the ALJ's order. Accordingly, the commission modified the ALJ's order as the employer requested.

Assuming the stipulated average weekly wage of $457.91 was earned based on a forty-hour week, the amount to be reimbursed would be $2,526.14. That amount is obtainable weekly either by multiplying the 331 hours (8.275 weeks) by the temporary total disability rate of $305.273 or by taking two-thirds of the product of the applicant's hourly wage ($11.45) times 331.

cc: 
Attorney Daniel C. Arndt
Attorney Richard D. Duplessie

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(1)( Back ) 102.30(7) (a) The department may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under s. 102.42 when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper. No attorney fee is due with respect to that reimbursement. 

uploaded 2004/02/09