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


STEVEN THEUER, Applicant

GANTON TECHNOLOGIES INC, Employer

NORTH RIVER INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1997044418, 1997058849, 1998054355


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.

ORDER

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

Dated and mailed December 3, 1999
theuers.wsd : 175 : 5  ND 4.6

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant contends in his petition for commission review that the administrative law judge erred in determining that the applicant's health insurance benefits were not a thing of value and part of the average weekly wage pursuant to Wis. Stat. 102.11(1)(e). The applicant states that during the time he was not receiving health insurance benefits he had the option of paying an additional $626.61 per month which is of value to the employe, and that by not having health insurance during the period of time he definitely lost a thing of value.

Under Wis. Stat. 102.11(1)(e) where things of value are received in addition to monetary earnings as part of the wage contract, they shall be deemed a part of earnings and computed at the value they are to the employe. The applicant argues that health insurance benefits certainly are a thing of value and as an employe he received health insurance in addition to his monetary earnings as part of the wage contract, and therefore the health insurance benefits are deemed to be a part of earnings and computed at the value to the employe.

However, the administrative law judge appropriately noted that the department has never considered fringe benefits including health insurance as a thing of value and part of the weekly wage under Wis. Stat. 102.11(1)(e). The department's wage manual for determining compensation wage states that fringe benefits such as meals for cost, insurance, retirement contributions are excluded, and that when fringe benefits are provided through cafeteria or flexible benefit plans the employe's weekly wage is computed on the reduced taxable hourly rate. The department has interpreted things of value under Wis. Stat. 102.11(1)(e) to include those things which are received which are taxable. The administrative law judge appropriately noted that the applicant's health insurance benefit is not taxable to the applicant and would not constitute part of his wages, and also that the health insurance benefit was not clearly part of his wages on his date of injury because the union contract does not require the employer to pay health insurance 90 days after applicant stops working. The commission has found no reason to overturn the department's interpretation of Wis. Stat. 102.11(1)(e). Therefore, it was not established that the applicant's health insurance benefits were a thing of value and should be included as a part of the average weekly wage under Wis. Stat. 102.11(1)(e.)

cc: ATTORNEY JOHN A BECKER
BECKER FRENCH & DEMATTHEW

ATTORNEY ROBERT P OCHOWICZ
KASDORF LEWIS & SWIETLIK SC


Appealed to Circuit Court. Affirmed March 31, 2000.  Appealed to Court of Appeals. Certified to the Supreme Court, November 8, 2000. [Ct. App. Certification].   Affirmed April 3, 2001, Theuer v. LIRC, Ganton Technologies and North River Ins. Co.,  2001 WI 26, __ Wis.2d __, __ N.W. 2d __ .

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