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

MICHAEL STEPHENS, Applicant

SHAW BUILDERS, Employer

FRANKENMUTH MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95067884

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. Delete the last four sentences in the fifth paragraph of the administrative law judge's Findings of Fact, and substitute:

"This results in a temporary total disability compensation rate of $448 per week."

2. Delete the ALJ's order and substitute:

"The average weekly wage at the time of the alleged November 15, 1995 injury is $672. The applicable temporary total disability compensation rate is $448. Payments of compensation shall be calculated accordingly.

"The application, only as it pertains to the average weekly wage, is dismissed."

ORDER

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

Dated and mailed September 30, 1997
stephmi.wmd : 101 : 3  ND § 4.5

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

Altough the notice of hearing in this case listed primary compensation, medical expense, and average weekly wage as issues, the sole issue identified by the ALJ in his order (and by the parties in their briefs) was the amount of the applicant's average weekly wage. In addition, the applicant concedes in his post-hearing brief of December 30, 1996 that that the respondent paid temporary disability as outlined in exhibit 3. Exhibit 3, of course, establishes that the respondent has paid temporary total disability for the period ordered by the ALJ. For these reasons, the commission modified the ALJ's order to delete his award of temporary disability.

The facts may be quickly summarized. The applicant testified that he worked for the employer, generally for a forty- hour week, beginning in or about 1992, though his hours did vary. The applicant worked on a special project, the Cove Project, beginning in August 1995. The employer's record (exhibit 1) shows he was working forty hours per week or less at this time.

Beginning in the last week of September 1995, the applicant began working a 45 or 46 hour week. By mid-October, he was regularly working a 46 hour week. The applicant was injured on November 15, 1995. In that week, he worked 46 hours.

Under Wis. Stat. § 102.11 the average weekly wage is determined by multiplying average daily earnings by the number of days and fractions of days normally worked per week at the time of the injury. Overtime hours are not included, but hours in excess of 40 may be counted if they are regular hours and technically not overtime. In addition, Wis. Admin. Code § DWD 80.51 (1) states:

"Pursuant to s. 102.11, [i]n determining daily earnings, if the number of hours a full time employe worked had been either decreased or increased for a period of at least 90 days prior to the injury, then this revised schedule worked during those 90 days shall be considered to be normal full-time employment."

In this case, the applicant's weekly hours were not increased over 40 until mid-September, about 60 days before the injury. Accordingly, the ALJ used a 40-hour week for determining average weekly wage, correctly applying Wis. Admin. Code § DWD 80.51 (1).

The applicant admits this. However, he contends the rule (Wis. Admin. Code § 80.51 (1)) contravenes the applicable statute (Wis. Stat. § 102.11 (1).) Specifically, he reads Wis. Stat. § 102.11 (1)(a) to require his average weekly wage to be based on the actual hours worked per week (1) at the time of the injury. This, he insists, is 46.

However, the statute refers to the days and fractions of days normally worked per week at the time of injury, without consideration of overtime. In order to determine what hours are "normal," and what hours are "overtime" in the week of injury, there must be a comparison to some other period of time. Since no period of comparison is stated in the statute, the department may reaonably fix it by rule as was done in Wis. Admin. Code § DWD 80.51 (1).

cc: ATTORNEY HELEN L SCHOTT
STAFFORD & NEAL SC

ATTORNEY ERIC B JENSEN
BORGELT POWELL PETERSON & FRAUEN SC

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Footnotes:

(1)( Back ) More technically, the days and fractions of days.