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


BELINDA R SOUTER, Applicant

PICK N SAVE, Employer

OLD REPUBLIC INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94-045712


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant worked as a checker and bagger for the respondent employer, a grocery store. Applicant's duties involved checking out or scanning groceries and taking payment from customers for the groceries. While lifting a 25-pound bag of kitty litter and twisting to put the bag over the scanner, applicant felt pain in her lower back. Applicant thereby sustained a compensable back injury on March 11, 1994.

In March of 1994 the employer's total number of employes was 75. Twenty of the 75 employes work full time and 55 work part time. Of the 75 total employes, 25 are checkers. Ninety-two percent of checkers work part-time. Two checkers work full time and the remaining 23 checkers work part time. The employer's part-time employes comprise 73 percent of its work force. Under the employer's policy, an employe must be regularly scheduled to work 30 hours per week for a period of 8 weeks to be considered full time. The applicant never attained full-time status.

The applicant worked with basically the same four or five checkers on the day shift. There were a total of five or six checkers throughout the day. Part-time checkers began and ended work at staggered times throughout the day. Part-time checkers were scheduled for 24 hours per week over a course of five days per week. On occasion a part-time checker would work more than 24 hours per week, for example, if a checker called in sick another checker would work the hours. Regular hours were not set at the same time every week. Checkers worked "other" hours which were Sunday hours for which they were paid time and one half.

In the 33 week period of July 17, 1993 through February 26, 1994, the applicant worked more than 24 hours per week in 14 weeks and fewer than 24 hours in 19 weeks. The applicant worked between five and 35 hours in any given week. Applicant's "regular" hours ranged from 5.40 hours per week to 29.20 hours per week and "other" hours ranged from 3.10 hours per week to 12.40 hours per week.

An applicant's temporary disability rate depends on the applicant's average weekly wage. The general rule is that part- time hours are expanded to full-time hours, normally assumed to be 40 hours per week, for purposes of determining the statutory average weekly wage. Secs. 102.11 (1)(a) and (c), Stats. (1) There are two statutory exceptions to the general expansion rule which are contained in sec. 102.11 (1)(f)1. and 2., Stats. (2) Section 102.11 (1)(f)2., Stats., applies to a part-time worker who restricts his or her availability to part- time work and who is not otherwise employed. Such a worker's temporary disability benefits may not exceed the average weekly wage of the part-time employment. That statutory provision does not apply in this case because no evidence was introduced to establish that the applicant restricted her availability to part- time work.

Section 102.11 (1)(f)1., Stats., sets a floor on a part-time worker's weekly earnings, and provides that those earnings may not be less than 24 times the normal hourly earnings at the time of injury or the worker's actual part-time earnings, whichever is greater. This "floor" applies to part-time workers whose average weekly earnings are not expanded to 40 hours under sec. 102.11 (1)(a) and (c), Stats. Moreover, the "floor" does not apply generally to cases where a worker restricts himself or herself to one part-time job under sec. 102.11 (1)(f)2, Stats., but rather to a part-time worker who is "a member of a regularly scheduled class of part-time employes." Section DWD 80.51 (4), Wis. Adm. Code.

Section DWD 80.51 (4), Wis. Adm. Code recognizes the proposition enunciated by the Wisconsin Supreme Court in Carr's Inc. v. Industrial Commission, 234 Wis. 466 (1940), reh'g denied, 234 Wis. 473 (1940), that certain workers may comprise such a distinct and separate class that their "particular employment" as that term is used in sec. 102.11 (1)(a), Stats., may reasonably be defined as that of a class of part-time workers. Section DWD 80.51 (4), Stats., thus provides that a part-time worker's average weekly wage is restricted to the 24 hour minimum workweek under s. 102.11 (1)(f), Stats., only if the worker is a member of a regularly scheduled class of part-time employes. In almost all other cases the average weekly wage for part-time employment is calculated on the basis of normal full-time employment in such job.

Section DWD 80.51 (4), Wis. Adm. Code is thus an exception to the general rule that wages are expanded to full time. The presumption of expansion is retained in the rule unless the party seeking to restrict such expansion establishes that the worker is part of a "regularly scheduled class of part-time employes". In applying sec. DWD 80.51, Wis. Adm. Code the department adheres to the policy contained in its Methods of Determining Compensation Wage (3) which provides, in relevant part:

V. Part-Time Employees

A. Bring wage up to normal full-time employment for that type of work setting, unless the following situations apply:

1. If the employe is part of a regularly scheduled class of part-time employes, raise to minimum of 24 hour workweek or to actual hours if higher than 24. To be considered part of a regularly scheduled class of part-time employes, an employe must be a member of a group of part-time employes who do the same type of work and who maintain the same type of regular work schedule, of the same hours as each other. Note that at least 10% of total employes must work the same schedule to constitute a class, in the same classification or job title of work. There can't be more than a 5 hour variance from week to week.

The department and commission have consistently applied the above provisions and principles in determining whether to expand a worker's wages. In the recent case of Threshermen's Mutual Insurance Company and Hillsboro Sentry Enterprise v. LIRC and Wanda Bloor, Court of Appeals, District IV (August 29, 1996), the court directed the commission to define the term "regularly scheduled class." Consistent with that direction, and consistent with Court's decision in Carr's Inc., sec. DWD 80.51 (4), Wis. Adm. Code, and the department's policy, the commission defines a "regularly scheduled class of part-time workers" as follows:

A worker is a member of a regularly scheduled class of part-time employes if the worker is one of a group of part-time workers who have the same work duties and classification or title, and work the same number of hours and arrangement of hours as each other as part of a common schedule. A worker's hours may vary from the scheduled hours, but by not more than five hours, from week to week. To be considered a class the group of part-time workers must comprise at least ten percent of the employer's total work force.

The issue to be decided is whether the applicant is a member of a regularly scheduled class of part-time workers such that her average weekly earnings for determining her temporary disability rate are limited to the greater of 24 times her normal hourly earnings or her actual part-time earnings.

In the present case, the employer did establish that part- time checkers comprise more than 10% of its work force. The employer alleged that all the part-time checkers were regularly scheduled for 24 hours per week and worked those hours on staggered shifts during a five day week. However, accepting that the employer's other part-time checkers regularly work 24 hours per week, the applicant is clearly not a member of that class as she worked from less than five to more than 34 hours in any particular week. She did not work the same number of hours per week as the employer's "regularly scheduled class" of part-time checkers. In fact, applicant never worked 24 hours in any of the 33 weeks prior to the week of injury.

The applicant in this case worked part time. However, the exception to the expansion to full-time wages for calculating temporary total disability is not determined by the mere fact that an employe works part time. There is the added requirement that that part-time employment be as a member of a regularly scheduled class of part-time employes. The employer has simply not established that the applicant belongs to such a class.

Applicant's average weekly wage for compensation purposes is calculated based on a 40-hour work week, at her hourly rate of $5.05, for weekly wages totaling $202. This results in a temporary total disability rate of $134.67.

Respondent paid temporary total disability and temporary partial disability totaling $368.32, based on a wage of $121.20, for intermittent periods from the time of injury to January 16, 1995. Additional compensation is due based on the appropriate rate of $134.67.

Applicant is entitled to temporary total disability for March 11, 1994 to March 24, 1994, November 15, 1994 to November 21, 1994, and January 8, 1995 to January 16, 1995, a period of three weeks and two days, at the temporary total disability rate of $134.67, for temporary total benefits of $448.90. Respondent paid temporary total disability for this period totaling $269.34, leaving additional temporary total disability due and owing of $179.56.

Applicant is entitled to additional temporary partial disability for the week ending April 3, 1994 to the week ending May 8, 1994. In week ending April 3 applicant earned wages of $123.73 resulting in temporary partial benefits due of $52.18. In week ending April 10, applicant earned wages of $89.89 resulting in temporary partial benefits due of $74.74. In week ending April 17, applicant earned wages of $63.63 resulting in temporary partial benefits due of $92.25. In week ending April 24 the applicant earned wages of $78.28 resulting in temporary partial benefits due of $82.48. In week ending May 1, the applicant earned wages of $104.54 resulting in temporary partial benefits due of $64.97. Temporary partial disability benefits due total $366.62. Respondent previously paid temporary partial benefits for the aforementioned period totaling $98.98. Additional temporary partial disability benefits due and owing total $267.64.

Applicant is therefore entitled to additional temporary total and temporary partial disability benefits totaling $447.20. Applicant's attorney is entitled to 20 percent of the additional benefits due or $89.44.

Applicant initially treated for her compensable back injury with her family doctor, Dr. J. Reyes. She was referred to Dr. H. Rosler, a physical medicine specialist, for treatment and was treated conservatively with rest, medication, physical therapy, and some trigger point injections. In June of 1994, applicant was released to return to her normal work schedule without limitations.

Applicant claims permanent partial disability of three percent for her industrial back injury as assessed by Dr. Rosler in September of 1994. However, applicant had a history of pre- existing back problems with some lost time from work and treatment in 1985. She was also treated by Dr. Rosler for back complaints in 1993, with the last visit to Dr. Rosler on June 8, 1993. Moreover, applicant has been released for work with no permanent physical limitations by any physicians. Furthermore, after a complete physical examination and medical evaluation of applicant in January of 1995, Dr. H. Lippman, a neurosurgeon, found applicant did not sustain any permanent partial disability due to her work related 1994 injury. Dr. Lippman's opinion is adopted as the more credible in light of the absence of any physician imposed physical restrictions. Accordingly, it is found that applicant sustained no permanent disability as a result of the compensable March 11, 1994, injury.

NOW, THEREFORE, this

ORDER

The findings and order of the administrative law judge are modified to conform with the foregoing findings and, as modified, are affirmed. Within 30 days of the date of this order the respondent shall pay the applicant the sum of $357.76 (Three hundred fifty-seven dollars and seventy six cents) and to applicant's attorney the sum of $89.44 (Eighty-nine dollars and forty-four cents).

Dated and mailed December 6, 1996
soutebe.wrr : 132 : 1  ND 4.8  4.10

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission accepts the administrative law judge's finding that the employer maintained a regularly scheduled class of part-time workers. However, the employer's evidence indicated that the applicant did not fall within that class.

In the petition for review the applicant maintains that there is no support for the administrative law judge's finding that a 1985 lower back injury resulted in time lost from work and treatment. However, the administrative law judge did not find that applicant sustained a lower back injury in 1985 but that she "had a history of pre-exiting back problems with some lost time from work and treatment in 1985." The applicant herself testified at the hearing that in 1985 she "lost time from work due to an exacerbation from back pain" and "had back pain and too many pills." The commission does not agree that Dr. Lippman's obvious error in referring to a May of 1994 injury rather than a March of 1994 injury requires rejection of Dr. Lippman's opinion. Granted, Dr. Rosler assessed three percent permanent partial disability. However, as noted by the administrative law judge, neither Dr. Rosler nor Dr. Lippman assessed any permanent physical restrictions which would justify a permanency rating.

cc: ATTORNEY MARK P MCGILLIS
SCHOONE FORTUNE LEUCK PETERSON JOHNSON & MURRAY SC

ATTORNEY JAN M SCHROEDER
KELLEY & PITTS SC 733 N VAN BUREN ST


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Footnotes:

(1)( Back ) Section 102.11(1)(a), Stats., provides that "The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employe was engaged at the time of the employe's injury." Section 102.11 (1)(c), Stats., provides that where earnings cannot be determined under par. (a), because, for example, the person has no fixed earnings, or normal full-time days or weeks are not maintained by the employer in the employment in which the employe worked when injured, then earnings shall 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)...."

(2)( Back ) Section 102.11 (1)(f), Stats., provides: 1. Except as provided in sub. 2., average weekly earnings may not be less than 24 times the normal hourly earnings at the time of injury. 2. The weekly temporary disability benefits for a part-time employe who restricts his or her availability in the labor market to part-time work and is not employed elsewhere may not exceed the average weekly wages of the part-time employment.

(3)( Back ) The text is from the May 1996 version of the policy. The June 1988 version of the policy was basically the same except that it did not include the sentence "There can't be more than a 5 hour variance from week to week."