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


DENNIS GOFF, Applicant

SCHOOL DISTRICT OF KENOSHA, Employer

WAUSAU UNDERWRITERS INS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92077750


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 first paragraph of the ALJ's Findings of Fact and substitute the following therefor:

"The applicant has been employed for over 15 years as a head custodian at an elementary school of the respondent. He sustained an injury to his right elbow on December 12, 1992. As a result, the applicant was temporarily totally disabled for the aforementioned periods.

"The applicant was covered under a collective bargaining agreement negotiated between his union and the employer. Article 12.03 of the agreement provided that, in the event of a personal injury on the employer's premises not due to the applicant's negligence, the employe would receive his or her full salary less amounts paid under the workers compensation laws for 30 days without deduction from his or her accumulated sick leave.

"The applicant was paid 30 days of the supplemental benefits provided under article 12.03 without deduction against his sick time. Thereafter, the employer continued to pay the supplemental payment with one day deduction from his accumulated sick leave for each day's supplemental payment. In all, the applicant received the supplemental payment for 51 days: the first 30 workdays (various periods between December 15, 1992 and April 18, 1993) without deduction against his sick time under article 12.03, and the remaining 21 workdays (April 19 to May 17, 1993) for which a full day's sick pay was deducted for each day."

ORDER

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

Dated and mailed: April 30, 1998
goffde.wmd : 101 : 8  ND 5.4  7.27  8.17

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant is a janitor for the employer, a school district. The applicant is a union member, covered by a collective bargaining agreement. He sustained a conceded work injury in December 1992, requiring the payment of indemnity for temporary total disability (TTD) for various periods of time.

Article 12.03 of the collective bargaining agreement between the employer and the applicant's labor union at one time provided that if an employe was injured at work and on workers compensation, the employer would make a supplemental payment in addition to TTD indemnity for up to one year. As a result, an injured worker would get his full pay while injured: the statutory TTD payment at two-thirds of his average weekly wage plus a supplemental payment from the employer to make up the difference. The supplemental payment was "free" in the sense that no corresponding deduction was made from the worker's accumulated sick leave.

However, the employer desired to make this article 12.03 uniform with an agreement it had other workers in a different bargaining unit. As a result, the provision dealing with the supplemental payment in applicant's collective bargaining agreement was redrafted to provide:

"12.03 Whenever an employee is absent from work as a result of personal injury occurring on the school premises and not due to the employee's negligence, the employee will be paid his/her full salary less weekly indemnity under the Worker's Compensation Act for the period of his/her disability up to thirty (30) days and no part of such absence will be charged to his/her accumulated sick leave."

Respondent School District exhibit 2.

Article 12.03 of the collective bargaining agreement did not state what happened after the first thirty days of disability. In practice, the employer continued to pay the supplement, but deducted one day of sick time from the applicant's accumulated sick time for every day of disability. In July 1993, the applicant's union and the employer entered into a settlement document which states that, after the 30 days of coverage under article 12.03, an injured worker has no choice but to take sick leave and vacation time to the extent necessary. Respondent's exhibit 3, and transcript, pages 50-53. However, the settlement agreement was negotiated after the applicant's period of temporary disability had ended, and expressly excluded his "recent absences" from the requirement that injured workers use sick leave after the 30th day.

As stated above, the applicant received the supplemental payment for 51 days. The employer charged a full day against the applicant's accumulated sick leave for each of the last 21 days of the supplemental payment. The applicant filed an application to have his accumulated sick leave credited under Wis. Stat. 102.30(3), and for bad faith penalties.

The ALJ reasonably found there was no bad faith. While the law prohibits an employer from charging its workers for workers compensation insurance premiums, Wis. Stat. 102.16(3), that is not what the employer did in this case. (1) Rather, the employer's actions may be viewed in one of two ways: as an excess or supplemental payment or as a substitution of sick time for TTD indemnity specifically contemplated under Wis. Stat. 102.30 (3).

The employer asserts it merely paid a supplemental benefit under a private arrangement under the collective bargaining agreement that is outside of the workers compensation law. Under Wisconsin law, if an employer wants to pay a worker more than his entitlement under the workers compensation law, that excess payment is considered a private matter and generally not subject to the laws governing workers compensation. (2)

However, when the applicant received the TTD indemnity and supplemental payments in early 1993, there was no private agreement between the parties about what happened with respect to the supplemental payment after the first thirty days of disability. Certainly, article 12.03 of the collective bargaining agreement did not say what happens. The settlement agreement at respondent's exhibit 3, whatever its effect, had not yet been negotiated, and the commission does not read it to apply retroactively.

In other words, the employer's unilateral requirement that the applicant use one day of sick time for each of the final 21 days of supplemental payment effectively substituted sick time for TTD indemnity during that period, without giving the applicant the election of refusing the supplement and taking only the TTD indemnity. Thus, the employer's policy of deducting a full day of sick pay for every day of continuing disability cannot be considered an excess or supplement payment greater than the minimum required by law disability after the first 30 days.

Under Wis. Stat. 102.30 (3), unless an employe elects to receive sick leave benefits in lieu of TTD indemnity, the employer has to credit back the sick leave benefits in amount equal in value to the TTD that would have been paid. An "election" of course, contemplates a choice between at least two options. Absent such choice, if an employer pays a worker full wages using sick leave for twenty-one days in lieu of TTD indenmity at two-thirds of the full wage, the employer must credit back fourteen days to the worker's sick leave time.

In this case, the applicant was off work 51 days. During the first 30 days, he received TTD indemnity and the "free" supplemental payment free pursuant to the collective bargaining agreement. In the remaining 21 days, he received (without the opportunity for election) his full wage, but the employer deducted 21 days of sick time. The ALJ required the employer credit back two-thirds, or 14 days, of the sick leave deduction. This is exactly what should happen under Wis. Stat. 102.30(3).

The employer also argues that, assuming some credit is owed, it should be four days instead of fourteen. The employer contends it should also get credit for the first thirty days it paid the free supplement of one-third day's wage, or ten days. Otherwise, the employer asserts, the applicant is getting an illegal "unbargained-for windfall."

However, the so-called "windfall" during the first 30 days was bargained for and is entirely legal. The record indicates that prior to the 1992 collective bargaining agreement members of the applicant's union got a year's worth of free supplemental payment. The employer and the union reduced that to 30 days in the bargaining process for other concessions as the employer acknowledges in its own brief. School District's brief dated November 26, 1997, page 3. Moreover, the language added to the collective bargaining agreement in the modification of article 12.03 specifically provides that no part of the first 30 days absence will be charged against an injured worker's sick time. If the commission gave the employer a credit for the "free" supplemental payment in the first thirty days, it would amount to a charge against the applicant's sick time in violation of the collective bargaining agreement.

NOTE: Two collateral issues remain. The first is the employer's assertion of ALJ prejudice. During a telephone conversation during an "in-week" of "phone week" prior to the hearing the ALJ reportedly told one of the parties that he thought the employer District had duped the applicant's union. The ALJ stated on the record he had no independent recollection of such a remark or, for that matter, any of the comments or statements he made during the "in-week" when he was responding to "cold" calls coming from parties, potential parties, and the general public. The commission readily accepts the ALJ's statement on this point. In any event, since the employer had a full opportunity to make its record, and since the commission reviews the record de novo, any ALJ prejudice would be irrelevant.

The commission also notes the issue of pre-emption based on the federal labor laws and collective bargaining agreement. In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988), the court stated that federal pre-emption arises when, in order to resolve a question presented, a state authority must interpret the collective bargaining agreement itself. Lingle involved the application of an Illinois unreasonable refusal to rehire law, where the collective bargaining agreement had to be interpreted to determine whether the refusal to rehire was reasonable. Our state supreme court has recently pointed out that Lingle also holds that pre-emption should not be lightly inferred, and that a claim independent of rights under a collective bargaining agreement should be allowed to go forward. Miller Brewing v. DILHR, 210 Wis. 2d 26, 326-40 (1997).

In this case, of course, neither party claims the collective bargaining agreement pre-empts the application of the workers compensation statute. Nor, as demonstrated above, must the commission construe the collective bargaining agreement. Article 12.03 did not indicate what happened during the period at issue here, days 31-51 of the applicant's workers compensation claim, and the explanation in the July 1993 settlement agreement by its terms did not apply to the applicant's claim.

cc: ATTORNEY CLIFFORD B BUELOW
DAVIS & KUELTHAU SC

ATTORNEY DANIEL R SCHOSHINSKI
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHIKE HAWKS & DOMER

ATTORNEY SCOTT R WINKLER
STILP AND COTTON


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Footnotes:

(1)( Back ) The applicant did not petition for review of the ALJ's decision not to award a penalty, but merely argued the point in his response brief. The employer points to the commission's policy of according arguments raised only in briefs and not petitions or cross-petitions, lesser weight citing Polakowsk v. Clearview Nursing Home, WC claim no. 96028025 (LIRC, December 17, 1997). See also Pamela Ceglarsk v. Fiskars Manufacturing Co., WC Claim no. 94-20770 (LIRC, February 27, 1998).

(2)( Back ) City of Milwaukee v. DILHR, 193 Wis. 2d 626, 633-34 (Ct. App., 1994).