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


DAVID J TREVORROW, Applicant

TREVORROWS LANDSCAPE, Employer

UNITED FIRE & CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93032075


The respondents submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on March 28, 1997. The applicant submitted an answer to the petition, and in that answer requested review of the issue of average weekly wage. The answer was not timely received so as to be considered a cross-petition pursuant to Chapter LIRC 1.026 of the Wisconsin Administrative Code. Briefs were submitted by the parties. At issue are nature and extent of disability, average weekly wage, and liability for medical expense attributable to the conceded work injury of May 26, 1993.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW are affirmed and reiterated as if set forth herein, with the exceptions hereinafter noted.

The administrative law judge's findings under the heading "WAGE" (beginning on page 2 and ending on page 6 of his decision) are deleted. The following two paragraphs are substituted therefor:

"The applicant's wage records for 1988 through the date of injury show that he averaged 54.87 hours per week in his employment with the employer. At the time of injury he was earning $10 per hour for the first 40 hours of work, and $15 per hour for work over 40 hours. Accordingly, his average weekly wage was $623.05.

The applicant also asserted that he should receive $200 per month in housing allowance as a part of his wages. First, pursuant to Chapter DWD 80.29 of the Wisconsin Administrative Code, the maximum allowance for lodging for wage purposes under Chapter 102 is the allowance provided under Wis. Stat. 272.04. However, given the fact that the house in which the applicant lived was his parents' home, and his failure to submit any credible documentation of an agreement that a portion of his wage would include living in his parents' home, his wage will not be adjusted for a housing allowance."

Delete the administrative law judge's findings beginning with the third paragraph of page 13 and continuing up to the INTERLOCUTORY ORDER on page 14 of his decision and substitute the following paragraphs therefor:

"The applicant previously received temporary total disability for the 105 weeks between May 26, 1993 and June 1, 1995, but at the wrong rate. The correct temporary total disability rate was $415.37 per week, which results in a total of $43,613.85 due in temporary total disability for this period. Credit will be given for the $38,149.65 previously paid for temporary total disability.

Permanent total disability was payable beginning June 1, 1995, at the applicable rate of $415.37 per week, less a 20 percent attorney's fee. The permanent total disability accrued to March 16, 1998, amounts to $60,436.34, of which $7,663.49 is due in attorney fees (for the period during which permanent partial disability was paid, applicant's attorney receives a fee of 20 percent against the difference between the permanent partial disability and the permanent total disability payments). Credit is given for $22,800 in permanent partial disability previously paid. Costs in the amount of $1,006.83 will also be subtracted from the applicant's award.

The net amount due the applicant as of April 16, 1998, is $36,062.33. The amount due applicant's attorney as of that same date is $7,900.51 in fees and $1,006.83 in costs. Beginning May 16, 1998, the applicant is entitled to permanent total disability payments in the amount of $1,439.96 per month, until December 30, 2004. Beginning January 30, 2005, the applicant is entitled to permanent total disability payments in the amount of $1,799.92 per month for life. Beginning May 16, 1998, applicant's attorney is entitled to a fee $359.97 per month until December 30, 2004.

The applicant may require additional medical care, and his medical and/or vocational status could change. Accordingly, jurisdiction will be reserved with respect to all future compensation."

Delete the administrative law judge's INTERLOCUTORY ORDER and substitute therefor the commission's INTERLOCUTORY ORDER set forth below.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the employer and its insurance carrier shall pay to the applicant as accrued compensation the amount of Thirty- six thousand sixty-two dollars and thirty-three cents ($36,062.33); and to applicant's attorney, Ronald Walker, fees in the amount of Seven thousand nine hundred dollars and fifty-one cents ($7,900.51), and costs in the amount of One thousand six dollars and eighty-three cents ($1,006.83).

Beginning May 16, 1998, and continuing until December 30, 2004, the employer and its insurance carrier shall pay to the applicant the monthly amount of One thousand four hundred thirty- nine dollars and ninety-six cents ($1,439.96); and to Attorney Walker, fees in the amount of Three hundred fifty-nine dollars and ninety-seven cents ($359.97).

Beginning January 30, 2005, and continuing for the duration of the applicant's life, the employer and its insurance carrier shall pay to the applicant the monthly sum of One thousand seven hundred ninety-nine dollars and ninety-two cents ($1,799.92).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed: March 24, 1998
trevoda.wrr : 185 : 7  ND 4.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The administrative law judge found that no evidence was adduced at the hearing to establish the applicant's daily earnings pursuant to Wis. Stat. 102.11(1)(a). However, earnings records were submitted in respondent's Exhibit 4 detailing the hours the applicant worked in 1988 through 1993. These records were also consistent with the parties' testimony that in 1993, the applicant earned $10 per hour for his first 40 hours of work, and $15 per hour thereafter. This evidence was all that was needed to calculate the applicant's average weekly earnings pursuant to Wis. Stat. 102.11(1)(a). The 1988-93 earnings records provide a fair and accurate means of determining the number of hours the applicant could, on average, expect to work in a week of employment with the employer. (1) The hourly wage at the time of injury was undisputed. The applicant's hourly wage in years prior to 1993 was not relevant to the calculation of average weekly wage at the time of injury. The administrative law judge's reliance on Wis. Stat. 102.11(1)(d) was misplaced, because that subsection merely provides a floor for average weekly earnings, when no better evidence is available.

The commission reversed the administrative law judge's findings regarding average weekly wage because it has jurisdiction over that issue, which has been in dispute from the beginning of this proceeding. Even though the applicant failed to timely file a cross-petition with regard to the issue, it is an issue so fundamental to the proceeding that the commission exercised its jurisdictional authority to correct substantial error.

cc:
ATTORNEY RONALD N WALKER
WALKER LAW OFFICE

ATTORNEY WILLIAM G SKEMP
WILLIAM SKEMP LAW FIRM SC


Appealed to Circuit Court.  Afiirmed October 28, 1998.

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Footnotes:

(1)( Back ) When overtime hours are a regular part of an individual's job, as they were for the applicant, they are included in calculation of average weekly earnings under Wis. Stat. 102.11(1)(a).