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

DOUGLAS SCHMIDT, Applicant

CARNES CO, Employer

LIBERTY MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996064176

This case arises from a work injury occurring on December 2, 1996. The employer and its insurer (collectively, the respondent) conceded that the injury was compensable. It also conceded temporary total and temporary partial disability for various periods from December 2, 1996 to November 9, 1997, for which it paid $21,291.39 based on the maximum temporary disability compensation rate. The respondent further conceded permanent partial disability at seven percent compared to permanent total disability, or seventy weeks at the weekly rate of $169, totaling $11,300.

The applicant filed an application seeking additional temporary disability to February 2, 1998, an award for loss of earning capacity, and an interlocutory order for future medical expense. In its answer dated February 24, 1998, the respondent disputed the applicant's entitlement to any additional temporary disability. It also initially conceded the applicant's claimed wage of $753.78. However, at the time of the first hearing in this case before ALJ Lawrence on September 3, 1998, the respondent asserted the wage should instead be $584.63. Also at issue before ALJ Lawrence was whether the applicant was entitled to permanent disability compensation beyond that conceded for loss of earning capacity and, if so, how much. (1)

ALJ Lawrence issued an order on October 15, 1998, which awarded compensation for loss of earning capacity at 16.5 percent. The respondent appealed, and the commission remanded the case for further testimony and a decision on the issue of loss of earning capacity, requesting specifically additional evidence on the effect of the applicant's overtime hours on the 85 percent threshold for entitlement to loss of earning capacity under Wis. Stat. § 102.44(6)(a). [Commission Remand Decision]

On remand, the matter was heard by ALJ Endter on November 11, 1999. By order dated December 7, 1999, she determined that the applicant was not entitled to additional compensation for loss of earning capacity, and that the applicant's average weekly wage is $584.57 (resulting in an overpayment in temporary disability). She dismissed the applicant's claim for loss of earning capacity, but retained jurisdiction without limitation noting that the applicant might need future treatment.

The applicant filed a timely petition for review of ALJ Endter's order. He accepts ALJ Endter's determination of the average weekly wage. However, he asserts he is entitled to loss of earning capacity at 19.38 percent, or $15,484.55 in additional compensation. The respondent asks that the ALJ's finding and order be affirmed, and the application for hearing be dismissed with prejudice.

The commission has considered the petition for review of ALJ Endter's order and the positions of the parties. It has reviewed the evidence submitted at both hearings. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant injured his back on December 2, 1996, while working for the employer as a "Spinner A." After an unsuccessful discectomy procedure, the applicant returned to full time work subject to permanent restrictions on or about November 9, 1997.

As noted above, the applicant does not appeal ALJ Endter's findings regarding the average weekly wage. The commission restates them here for the sake of completeness.

The respondent initially conceded an average weekly wage of $753.78, resulting in a temporary total disability rate of $494.00. The method of reaching that average weekly wage was not apparent from the record made at the second hearing, or from the department's file. At the first hearing, the carrier claimed that the correct average weekly wage was $584.63. At the second hearing, the respondent claimed the average weekly wage was $592.44.

The department calculates the average weekly wage as the higher of (1) the hourly wage times the number of hours worked exclusive of overtime and (2) the actual gross earnings divided by the number of weeks worked. The applicant's actual total gross wages in the 52 weeks before his date of injury, as reported on respondent's exhibit 1, was $30,397.81, which divided by 52 equaled $584.57. The applicant's hourly wage at the time of injury was $12.79 times 40 hours a week equaled $511.60. Therefore, $584.57 was the higher of the two and $584.57 was his average weekly wage for purposes of determining his rate for temporary disability benefits. As the applicant was paid benefits for temporary disability based on a higher wages, he was overpaid some of those benefits. The respondent was not seeking recovery of the overpayment but a credit in the event of an award for loss of earning capacity.

The next issue is the applicant's entitlement to compensation to permanent disability on a vocational basis for loss of earning capacity. At the time of injury he was earning $12.79 per hour, having received a raise from $12.49 on November 1, 1996. He worked briefly at his old job as a Spinner A at an increased wage of $13.09 per hour. Because of his restrictions, however, he was put in work as an Assembler C in February 1998, which is a lower-paying job that is less physically demanding. Upon returning to work and at the time of the first hearing before ALJ Lawrence, he earned $10.92 per hour.

The applicant testified at the first hearing that he received overtime prior to the injury, but now was not assigned overtime work after the injury. A worker in the employer's plant obtains overtime by "posting" for it.

At the first hearing, the applicant testified that there was overtime available to Assembler Cs since he returned to work in February 1998, but that he never posted for it. He offered several reasons at the first hearing why he did not post for it: whether because his foreman did not specifically ask him to post for it, because very little overtime was available anyway, or because he did not feel physically capable of overtime work. See September 1998 transcript, page 33 et seq.

The employer's witness, human resources manager Julie Sundby, testified at the first hearing that the applicant worked between zero and 16 hours per week of overtime before his injury; that there were relatively more overtime hours plant- wide in 1997 than 1996, but 68 percent less in 1998 than 1997; and that it was difficult to generalize whether Spinners as a class worked more overtime than Assemblers, or vice versa. September 3, 1998 transcript, page 52 et seq.

The overtime issue is fleshed out a little more by the testimony at the second hearing. The applicant now recalled having posted for overtime as an Assembler A on at least three occasions, but not getting any. November 1999 transcript, page 25-26. His testimony indicates that this was because he would only be taken for overtime to build round dampers, and that the employer had no demand for this task. Transcript, pages 27-28, 30.

In other words, the applicant explained that a supervisor asked a worker to come in for overtime, then the worker would sign up. November 1999 transcript, page 41. This, the applicant testified, explained his earlier testimony that he was "passed over" for overtime by the supervisor. However, it is clear from a comparison of the applicant's testimony at the two hearings that he has changed his explanation about why he did not post for overtime from his supervisor "passing him over" and not being physically able to do the work (September 1998 transcript, page 18) to simply not being qualified to do the available Assembler C overtime work (November 1999 transcript, pages 41-45.)

The applicant testified that overtime was available for only certain Assembler C tasks, or for workers on certain machines, which explained why the same individuals kept getting the Assembler C overtime. November 1999 transcript, pages 21-22. On cross-examination, however, the applicant admitted that when the overtime sign up sheets went up on Monday, he would not know what type of Assembler C work would be available the following Saturday. November 1999 transcript, page 39.

The applicant also noted that in calendar year 1998, according to the employer's own exhibit 2, his former Spinner A coworkers averaged about $114 in weekly overtime (except for one who was hurt who averaged only $62.82 per week). He also testified that when he had been a Spinner A, he took whatever overtime was available, and would do so again if he were working as a Spinner A. November 1998 transcript, page 38. By comparison, the overtime hours for the four of eleven Assembler As who did overtime only averaged about $40 hours per week in calendar year 1998.

Ms. Sundby also testified at the hearing. She explained that there were two types of overtime, daily and Saturday. The daily overtime is passed out informally, by a supervisor asking workers if they want to stay, or workers asking if the hours were available. November 1999 transcript, pages 65-66. She said that workers would often switch machines to do the daily overtime.

She also testified about how the Saturday overtime was handled. Basically, the sign up sheets went up on Monday, before anyone knew if overtime would be available, much less what type of work would be available. Then on Thursdays, the supervisors got together and made job assignments for the following Saturday, based on what work was available for what classification.

Ms. Sundby stated that if a person was available, he would let the supervisor know by putting his name on the overtime list. She stated it was not the other way around: supervisors did not let workers know if work was available. Then the supervisors would look at the list, see what "area" the overtime work was in, then offer the offer the overtime work first to people who signed up for work in their "area." November 1999 transcript, page 71. Management determined who was "qualified" for the overtime work, based on physical capacity and skill level.

However, Ms. Sundby also testified that Assembler C was an entry level job, predominately spot welding, but also packaging, and "catching parts." She also testified that an Assembler C could do any "C job" in the building under the union contract. November 1999 transcript, page 72. She also testified that spot welding overtime work was available, and that the applicant was qualified to do spot welding overtime. Transcript, page 74. She also disputed the applicant's testimony that the names on the overtime lists were tied to workers who worked on specific machines, noting that one woman who worked on nailer/squeezer often signed up for overtime, while another woman who worked on the same machine did not. November 1999 transcript, page 74-75.

Ms. Sundby testified that being unqualified to do specific Assembler C tasks was not a reason she had ever heard a worker give for not signing up on the overtime sheets. Transcript, page 80. Indeed, she noted that temporary workers and summer college students got overtime if they signed up for it in their classification. November 1999 transcript page 81. She also testified the applicant was quite high on the seniority list.

On cross-examination, however, Ms. Sundby did admit that if the applicant and another Assembler C both signed up for overtime, and the available work was on the other Assembler C's machine, she would offer the overtime to the Assembler C whose machine was involved first. November 1999 transcript, page 93. She also admitted that the applicant's supervisor never came up to her and complained that there was overtime work on the applicant's machine and he would not do it. November 1999 transcript, page 95. However, near the end of the testimony, Ms. Sundby pointed out that a number of other workers who did overtime did spot welding like the applicant did, and temporary workers in other classifications (who she inferred were less skilled than the applicant-a fourteen year employe), had signed up for overtime and got it. Transcript, pages 103 et seq.

The respondent submitted the sign-up sheets for many of the weeks from December 1997 to the 1999 hearing. Exhibit 4. The sheets indicate that the same individuals signed up each week for the overtime. Ms. Sundby could not say if the remaining Assembler Cs who did no overtime work were qualified to the overtime work. November transcript, page 109.

Finally, Ms. Sundby testified that there was no pattern from year to year as to whether Assembler Cs got more overtime than Spinner As. November 1999 transcript, page 79. This is borne out by exhibit 2. In 1997, it looks as if the Spinners got no hours of overtime, while the four Assemblers who did overtime got a little. In 1998, the Spinners clearly got more overtime than the Assemblers. In 1999, the Spinners got a few more hours of total overtime than the Assemblers.

An award for loss of earning capacity is based on a comparison of a workers' pre- injury earning capacity with his post-injury capacity, and takes into account numerous factors including actual wages, age, education, training, efforts to find suitable work, willingness to relocate, and transferability of skills. See Wis. Admin. Code § DWD 80.34. While pre-injury and post injury wages are a factor in determining the loss of earning capacity award, the award is generally not based simply on a straight wage comparison.

However, an award for loss of earning capacity may not be made if the time-of- injury-employer re-employs an injured worker at 85 percent of the worker's time-of-injury wage. Specifically, Wis. Stat. § 102.44(6)(a), (b) and (f) provide:

"102.44(6)(a) Where an injured employe claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.

"(b) If, during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury, or by the employe because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.

"(f) Wage loss shall be determined on wages, as defined in s. 102.11. Percentage of wage loss shall be calculated on the basis of actual average wages over a period of at least 13 weeks."

In determining whether the 85 percent threshold is met, the commission generally tries to compare average weekly wages, not the hourly rate of pay. (2) This allows a loss of earning capacity award, for example, if an injured worker is able to return to his former job and receives his former hourly pay rate, but must work fewer hours (whether due to a restriction to part-time employment, or a restriction against overtime that the injured worker had customarily received.) Further, Wis. Stat. § 102.44(6)(g) suggests that wage loss should be based on weekly, rather than hourly, figures.

The first question in this case, then, is whether the applicant has shown a sufficient wage loss to cross the 15 percent wage-loss threshold test for loss of earning capacity. The first part of this inquiry is the effect the applicant's efforts to obtain overtime work should have on his claim. At the time of the first hearing, the commission--while it had the strong sense that while the applicant may not have made much of an effort to get overtime--could not tell how much overtime would have been available to the applicant under any circumstances. Ms. Sundby had testified that in 1998, overtime dropped 68 percent from the prior year. Ms. Sundby also could not refute the applicant's testimony that less overtime was available to Assembler Cs than Spinner As.

At the remand hearing, the evidence shows that while there may have been relatively more overtime available to Spinner As in 1998 (the applicant's first year back) than to Assembler Cs, there was substantially more overtime available to both classes than had been available in 1997. From year-to-year, the amount of overtime between the two classes does vary. It does not appear that the applicant's job after his injury as an Assembler C clearly provided less overtime on a regular or sustained basis. The commission thus declines to speculate that, regardless of the applicant's efforts to obtain overtime, he would have earned less than 85 percent of his pre-injury wage.

So what should the effect of his lack of effort to obtain overtime be? Here, the employer proved that the post-injury hourly wage is more than 85 percent of the pre-injury hourly wage; that while the applicant's post-injury weekly earnings may have been less than 85 percent of his pre-injury weekly earnings, the difference is due to loss of overtime; that overtime hours are generally available on not grossly disproportionate terms to workers in the Spinner A and Assembler C classifications; and that the applicant did not make much effort to obtain the overtime work.

In response, the applicant testified that overtime work was not available to him, based on his skills. The ALJs, both of them, rejected the applicant's testimony on this point, and after reading the transcripts, the commission agrees. The commission credits Ms. Sundby's testimony that if the applicant had put his name on the list, he would have gotten overtime hours.

The commission acknowledges that Ms. Sundby admitted that overtime work was in some respect dependent on the "area" or "qualification" of the person seeking it, and that as a result, overtime work may not have been handed to all Assembler Cs evenly. Indeed, the same four of eleven workers seemed to have done all the Assembler C overtime. In the final analysis, though, both ALJ Endter and ALJ Lawrence, who heard the applicant and Ms. Sundby testify, determined that overtime was available to the applicant. They also concluded the applicant simply did not make an effort to sign up for overtime hours. His failure to do so leaves the commission to speculate what he would have earned had he put his name on the list. This the commission declines to do.

Based on this record, before it, a comparison of weekly earnings which include overtime hours is not warranted. The applicant's lack of effort to find overtime work skews his post-injury earnings downward, and his resulting wage loss upward. Consequently, in this case, the commission believes it most appropriate to base the 85 percent threshold calculation simply on a comparison of the pre- injury and post-injury hourly wages. Because the applicant made just over 85 percent of his pre-injury Spinner A hourly wage upon returning to work post- injury as an Assembler C, the commission concludes he is not entitled to an award for loss of earning capacity under Wis. Stat. § 102.44(6).

Based on the foregoing circumstances, the applicant sustained an injury on December 2, 1996, while performing services for the respondent growing out of and incidental to that employment. The applicant's average weekly wage at the time of injury was $584.57.

As a result of this injury, the applicant was temporary totally and partially disabled between December 2, 1996, and November 9, 1997, and was paid benefits based on an average weekly wage of $753.78, a temporary disability rate of $494.00, in the total amount of $21,291.39. Based on the wage of $584.57, the applicant was entitled to benefits for temporary disability in the amount of $15,853.74. Therefore, the applicant was overpaid benefits of $5,437.65.

As a further result of this injury, the applicant sustained a permanent partial disability of 7 percent of the body as a whole on a functional basis but none on a vocational basis, payable at a weekly rate of $169.00 for 70 weeks for a total of $11,830.00. This entire amount was accrued and paid.

Finally, the commission notes that the applicant's application for hearing included a request for an interlocutory order on the issue of additional medical treatment expense. As noted above, the present issues addressed by the ALJs, and now by the commission, were the amount of the average weekly wage and the extent of loss of earning capacity. To reiterate, the average weekly wage is determined to be $584.63 and the applicant's claim for loss of earning capacity is dismissed subject (as ALJ Endter noted) to Wis. Stat. § 102.4(6)(b). While these issues are finally resolved by dismissal of the application, the commission notes that the medical record, including specifically the February 2, 1998 letter of Wojciech M. Bogdanowicz, M.D., indicates that the applicant may need future treatment. Thus, while the commission dismisses the applicant's present claims for additional disability compensation, it does not intend to foreclose future any claims arising from additional treatment for the work injury.

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

ORDER

The findings and order of the administrative law judge are modified to conform reversed. No additional amounts are awarded, and the applicant was overpaid temporary disability benefits (though the respondent did not seek recovery of those benefits.) The application is dismissed.

Dated and mailed April 27, 2000
schmidt.wrr : 101 : 5  ND § 5.23

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The applicant's attorney had costs in the amount of $875.00 and he is authorized to collect these costs directly from the applicant if he so chooses.

cc: ATTORNEY JAMES N YOUNGERMAN
MONTIE YOUNGERMAN & DUTCH

ATTORNEY ALAN E SENECZKO
SENECZKO LAW OFFICES SC

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Footnotes:

(1)( Back ) The applicant had apparently withdrawn his claim for additional temporary disability to February 2, 1998.

(2)( Back ) Jakubiak v. Wrought Washer Mfg, Inc, WC case no. 1994033075 (LIRC, April 12, 1999), note 5.