KEVIN KLUGE , Applicant

CURWOOD INC
BEMIS CONVERTER FILMS, Employer

UNITED STATES FIDELITY & GUARANTY COMPANY, 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.

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

Dated and mailed January 16, 2003
klugeke . wsd : 101 : 8  ND  § 5.4   § 5.9  § 8.8 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

1. Facts and posture.

The applicant hurt his back at work on Tuesday, August 28, 2001. He worked the next day, and his doctor took him off work the following day, Thursday, August 30, 2001. His doctor released him to return to work on Monday, September 10, 2001. Exhibit A.

At this point, the employer and its insurer (collectively, the respondent) disputes neither the work injury, nor that the applicant's doctor took him off work on August 30, 2001 and did not release him to return until September 10, 2001. Indeed, the respondent stipulated that the applicant was restricted from work during that period. Rather, at dispute here involves: (1) the amount of the applicant's average weekly wage used to calculate his disability compensation, and (2) whether temporary disability benefits should be paid during the time the applicant's doctor kept him off work even though the applicant would not have worked due his scheduled "off-week" even if he had not been injured.

The dispute in this case is arises out of the applicant's work schedule. He works 21 consecutive days, then has 7 days off in a row. In a 28-day period, then, the applicant works one day more than the standard 20 workdays. He has worked for the employer on that schedule periodically for ten years.

It also appears his schedule does not correspond precisely to calendar weeks. Rather, the first day of the off and on cycles is always a Monday, and the last day a Sunday. For example, the applicant testified that Monday, September 3, 2001 began his off week, and that he missed work due to his injury on Saturday, September 1, 2001 and Sunday, September 2, 2001.

2. Average weekly wage.

In his order, the ALJ stated that the applicant's average weekly wage was $772.26. He explained at the hearing that average weekly wage had been stipulated to at a prehearing conference attended by the respondent's prior counsel. (1)    Indeed, while the March 5, 2002, hearing notice lists "Wage 102.11" as an issue, the department's records indicate that the parties stipulated to an average weekly wage of $772.26 at a prehearing conference before ALJ Thomas Landowski on January 16, 2002. A copy of the ALJ Landowski's "Prehearing Conference Report" is attached to this decision.

On appeal, the respondent argues that its answer to the hearing application, preserved its right to contest the issue of wage. The respondent's answer denied the $985 wage asserted the applicant in his hearing application and included the words "will provide" with reference to the wage admitted. It appears the answer was dated January 16, 2002 (2),   the same date as the prehearing conference before ALJ Landowski. However, the commission declines to read the answer to permit the respondent unilaterally to rescind the mutual stipulation regarding the average weekly wage made by the parties before ALJ Landowski, particularly where the respondent was represented by counsel.

Further, the commission notes that use of an expert to prove the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment under Wis. Stat. § 102.11(1)(c) (3)   is permitted only in limited situations, none of which actually seem applicable in this case. Moreover, even if wages are calculated under Wis. Stat. § 102.11(1)(c), the applicant is still entitled to a wage calculated based on a 52-week average if higher. See Wis. Stat. § 102.11(1)(d). (4)   Department Exhibit 1, though it lists earnings for only a 51-week period extending after the date of injury, suggests that the calculation under Wis. Stat. § 102.11(d) would yield a higher wage than the wage asserted by the respondent in any event.

2. Temporary disability during an off-week

The next issue is whether the applicant should get temporary disability during his "off week." Here, the applicant was off work from August 30 through September 9, 2001, and resumed work on September 10, 2001. The applicant normally would have worked from Thursday, August 30 through Sunday, September 2, 2001. However, the week beginning Monday, September 3 and ending Sunday, September 9, 2001 was his normal off-week.

The ALJ concluded temporary disability should be paid during the applicant's off week. The commission agrees with his conclusion, and concurs with the reasoning set out in his decision. In addition, the commission notes that Wis. Stat. § 102.43(8), provides:

"102.43(8) During a compulsory vacation period scheduled in accordance with a collective bargaining agreement:

"(a) Regardless of whether the employee's healing period has ended, no employee at work immediately before the compulsory vacation period may receive a temporary total disability benefit for injury sustained while engaged in employment for that employer."

The department's interpretative footnote provides:

"166 This amendment clarifies that the employee must actually be working rather than just in employment status to be barred from receiving temporary total disability benefits during the defined compulsory vacation period."

Wisconsin Stat. § 102.43(8) governs a worker in a healing period who has returned to work and is earning full wages but then is off a week due to a mandatory, scheduled plant vacation. Such worker does not become eligible for temporary total disability simply because of the vacation -- had it not been for the mandatory vacation, he would be working. On the other hand, Wis. Stat. § 102.43(8) strongly implies -- and the department's interpretative note states outright -- that if a worker is still off work and drawing temporary total disability when the mandatory vacation occurs, his claim is not automatically suspended because of the vacation. That situation is analogous to the case at hand.

The respondent points to Employers Mut. L. Ins. Co. v. Industrial Commission, 230 Wis. 2d 670, 681, 284 N.W. 548 (1939) for the proposition that one who sustains no wage loss cannot recover for a theoretical wage loss. However, court's pronouncement in that case, read in context, states:

"When an employee is injured and is wholly or partially disabled he ceases ordinarily to earn wages and as a result sustains a wage loss. Under such circumstances he is entitled to compensation. But if his employer continues to pay him his full wages he cannot collect compensation from him because he has in fact sustained no wage loss. He is, of course, entitled to compensation, but if he is paid full wages during the time of his disability he obviously has sustained no wage loss. Whether the employer carries his own compensation risk or has it carried by an insurance company, can be of no materiality. One who has sustained no wage loss cannot recover compensation based on a theoretical loss of wages. Compensation must bear some reasonable relation to the loss which an injured employee has sustained. Struck & Irwin Fuel Co. v. Industrial Comm. 222 Wis. 613, 269 N.W. 319."

Employers Mut. L. Ins. Co. v. Industrial Commission, at 284 N.W. 553. In other words, Employers Mut. involved a situation where there was no wage loss because the employer paid the injured worker to cover it, not because there was no work available or scheduled.

If the Employers Mut. were construed as the respondent suggests, there would be no temporary total disability paid during a compulsory vacation under any circumstances, and no need for Wis. Stat. § 102.43(8).  Nor would workers who have returned to work subject to restrictions during a healing period be eligible for temporary disability after being laid off, or after they were fired. However, workers do get benefits under those circumstances because their ability to work remains impaired. See, for example, Brakebush Bros. Inc. v. LIRC, 210 Wis. 2d 623 (1997). (5)

cc: Attorney Kurt R. Anderson

Appealed to Circuit Court.  Affirmed October 10, 2003.

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(1)( Back ) See respondent's July 10, 2002 brief to the commission, page 3.

(2)( Back ) The document is actually dated January 16, 2001, apparently the result of the type of misdating that commonly occurs early in the year.

(3)( Back ) 102.11(1)(c) In the case of persons performing service without fixed earnings, or where normal full-time days or weeks are not maintained by the employer in the employment in which the employee worked when injured, or where, for other reason, earnings cannot be determined under the methods prescribed by par. (a) or (b), the earnings of the injured person shall, for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) or (b).

(4)( Back ) 102.11(1)(d) Except in situations where par. (b) applies, average weekly earnings shall in no case be less than actual average weekly earnings of the employee for the 52 calendar weeks before his or her injury within which the employee has been employed in the business, in the kind of employment and for the employer for whom the employee worked when injured. Calendar weeks within which no work was performed shall not be considered under this paragraph. This paragraph applies only if the employee has worked within a total of at least 6 calendar weeks during the 52 calendar weeks before his or her injury in the business, in the kind of employment and for the employer for whom the employee worked when injured. For purposes of this section, earnings for part- time services performed for a labor organization pursuant to a collective bargaining agreement between the employer and that labor organization shall be considered as part of the total earnings in the preceding 52 calendar weeks, whether payment is made by the labor organization or the employer.

(5)( Back ) Indeed, while the respondent cited Neal & Danas, Worker's Compensation Handbook § 5.3 (3rd Ed. 1997) for the general proposition that benefits for temporary disability are available only when an employee in a healing period sustains a wage loss, the Handbook states more specifically that a totally disabled employee remains entitled to temporary total disability benefits even if hospitalized for reasons unrelated to the work injury or incarcerated. Id., at § 5.9. The Handbook does note that the "no wage loss" argument has been successfully asserted when a worker has clearly withdrawn from the labor market, as by retirement. See, id., at § 5.4. That, of course, did not happen in this case. 

uploaded 2004/01/29