KIMBERLY A SIMES, Applicant
CITY OF WHITEWATER, Employer
LEAGUE OF WIS MUNICIPALITIES MUTUAL, Insurer
City of Whitewater and League of Wisconsin Municipalities Mutual (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 17, 2004. The applicant did not submit an answer to the petition, and although notified of a briefing schedule did not submit a brief. Respondents did submit a brief. At issue is the applicant's correct average weekly wage at the time of her compensable right ankle injury occurring on May 28, 2003.
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:
1. On May 28, 2003 the employee, Kimberly A. Simes, was working as a volunteer EMT for the City of Whitewater.
2. On May 28, 2003, Ms. Simes sustained a compensable work injury in the nature of a right ankle fracture.
3. Temporary disability benefits, and permanent partial disability benefits, were paid to Ms. Simes on the basis of an average weekly wage of $340.00.
4. Ms. Simes' date of hire was December 1, 2002; therefore, she had been an employee in this capacity for a period of just over six months at the time the injury occurred.
5. At the time the injury occurred, Ms. Simes had other full time employment as the associate director for the Wisconsin Coalition Against Sexual Assault.
6. She returned to work in that capacity as of June 9, 2003.
7. The insurance carrier determined the conceded average weekly wage based on information obtained from Curtis Universal Ambulance Service and Bell Ambulance Service which pay similarly situated employees $7.50 per hour and $9.50 per hour, respectively. The insurance carrier averaged the two wage rates and calculated a wage of $8.50 per hour at 40 hours per week, a total average weekly wage of $340.00 [Exhibits C and D].
8. Benefits were paid on the basis of an average weekly wage of $340.00.
9. Because Ms. Simes was working as a volunteer EMT, the average weekly wage was determined pursuant to § 102.11(1)(c), for persons performing service without fixed earnings. The statute provides the earnings of such employees shall "be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment."
10. The Administrative Code, DWD 80.30, establishes a presumption that the maximum average weekly wage in effect on the date of injury shall be used in computing the compensation payable to an employee as defined by § 102.07(7), Stats., "except as specific showing may be made in an individual case that such wage is not proper."
11. At the time the injury occurred, as a member of the City of Whitewater volunteer EMT squad, Ms. Simes was an employee within the definition of § 102.07(7), Stats.
12. At the time relevant to this dispute, the average weekly wage for a similarly situated employee at Bell Ambulance was $380; the average weekly wage for an employee of Curtis Ambulance Service was $300 and the average weekly wage for an employee of Paratech Ambulance Service was in the range of $360 to $380 [Exhibits C, D and E].
13. Captain Thomas Schopen is a volunteer on the fire and rescue squads for the City of Whitewater. He has been captain for the rescue squad for 35 years, and in that capacity he supervises all EMTs [Exhibits A].
14. Based on the information provided by Captain Schopen, the job activities of Kimberly Simes on May 28, 2003 were of a similar nature to those outlined on the job description from the City of Port Washington. All EMTs operate under protocols and state mandates as to training, procedures, equipment, medications and treatment, and all services operate about the same as others [Exhibit A].
15. Based on the information provided by Captain Schopen, the procedures and training reflected on the job descriptions from Paratech Ambulance, Curtis Ambulance and Bell Ambulance are the same as for volunteer squads [Exhibit A].
16. In 2003 the starting hourly rate for a fire fighter employed on a full time basis with the City of Janesville Fire Department was $11.22 per hour [Exhibit I].
17. The starting salary for 2003 for a firefighter employed on a full time basis by the City of Beloit Fire Department was $1,243.06 on a biweekly basis {Exhibit J}.
Wis. Admin. Code § DWD 80.30 provides:
DWD 80.30 Average weekly earnings for members of volunteer fire companies or fire departments. The maximum average weekly earnings under the provisions of s. 102.11, Stats., which are in effect on the date of injury shall be used in computing the amount of compensation payable to an employee as defined by s. 102.07(7), Stats., except as specific showing may be made in an individual case that such wage is not proper.
The stipulated facts identify the applicant as a volunteer EMT for the City of Whitewater, without identifying whether the City considered her to be a volunteer employee of their fire department or of some other city department. There is no indication that the City maintains a legally organized rescue squad separate from its fire department. Pursuant to the definitions provided in Wis. Stat. § 102.07(7)(a), (1) volunteer members of fire companies or fire departments, and rescue squads are all entitled to the presumption of maximum average weekly earnings under DWD 80.30.
Respondents assert that they have rebutted the maximum average weekly wage presumption by presenting evidence of what EMT's employed by private ambulance services earn, together with a statement from the City's EMT Captain Thomas Schopen, to the effect that all EMT's operate under the same protocol and state mandates, and with the same training. Respondents argue that the evidence it provided of EMT wages for private ambulance services should therefore be accepted to rebut the maximum wage presumption of DWD 80.30.
The administrative law judge cited the department's policy that distinguishes municipal/volunteer EMT employment from EMT employment with private ambulance services. Citing this policy and the value to the public of the municipal/volunteer service performed, the administrative law judge found that the maximum average weekly wage was applicable to the applicant's volunteer EMT employment with the City of Whitewater. The commission rejects the argument made by the respondents, as well as the administrative law judge's finding that the maximum wage is applicable.
The department's policy distinguishing municipal/volunteer EMT employment from private ambulance service EMT employment is sound, unless it is shown in a particular case that the privately-employed EMT performs essentially the same duties as the municipal/volunteer EMT. No such showing was made in the stipulated facts of this case. As noted in the department's written policy, municipal/volunteer rescue squads (EMT's) typically perform duties far beyond those of a private ambulance service, even though they may operate under the same general protocol and with very similar training.
However, the administrative law judge's findings ignored additional evidence stipulated to in this proceeding, that identified the $12.12 starting hourly wage earned by City of Beloit personnel in the "AMB/PM" category for 2003 (inferred to be abbreviations for ambulance/paramedic). This compares with the starting hourly rate for City of Beloit firefighters, which is $11.42. (2) This evidence shows that the respondents did rebut the presumption of maximum average weekly wage under DWD 80.30. A full-time, municipally-employed EMT in a city similar to Whitewater, who like the applicant had been employed in such capacity for just over six months, could expect to earn an average weekly wage of $484.80 (40 x $12.12). An average weekly wage of $484.40 results in weekly temporary total disability of $323.20.
The department's worksheet dated February 19, 2004, indicates that even though respondents conceded temporary total disability at the rate of $226.66 per week, they actually paid the applicant the one week of temporary total disability at issue at the rate of $339.97. This exceeded the $323.20 that was due, and no further compensation for temporary disability is due the applicant.
Jurisdiction will be reserved for any other issues that may arise from the work injury of May 28, 2003.
NOW, THEREFORE, this
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed May 24, 2005
simeski . wpr : 185 : 8 ND § 4.15
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
cc:
Attorney Daniel L. Zitzer
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