June 25, 2001
Members present: Mr.
Bagin, , Mr. Beiriger, Mr. Buchen, Ms. Coakley Ms. Connor, Mr. Glaser, Mr.
Gordon, Mr. Newby, Ms. Norman-Nunnery, Mr. Olson, Ms. Vetter, Mr. Welnak.
Staff present: Mr. OMalley
and Mr. Smith.
- Minutes. Ms.
Norman-Nunnery convened the meeting in accordance with Wisconsins
open meetings law. Mr. Newby requested that the minutes of the May 24,
2001 meeting be amended at the bottom of page 2 where Mr. Glaser
refers to the Larsen case. He said the third sentence of that
paragraph should refer to an injured employee, not an injured
employer. As amended, Mr. Bagin moved adoption; Mr. Welnak seconded
the motion. The motion to adopt the minutes of the May 24, 2001
meeting was unanimously approved.
- Review Department
Proposals. The Council reviewed the Departments proposals that
had been tabled at the May 24, 2001 meeting. The Council agreed to
include the following proposals.
- Employer's normal
full-time work week
Amend 102.11(1)(a) as
Daily earnings shall mean
the daily earnings of the employee at the time of the injury in the
employment in which the employee was then engaged. In determining
daily earnings under this paragraph, overtime shall not be
considered. If at the time of the injury the employee is working on
part time for the day, the employee's daily earnings shall be
arrived at by dividing the amount received, or to be received by the
employee for such part-time service for the day, by the number of
hours and fractional hours of such part-time service, and
multiplying the result by the number of hours of the employer's
normal full-time working day for the employment involved. The words
"part time for the day" shall apply to Saturday half days
and all other days upon which the employee works less than normal
full-time working hours. The average weekly earnings shall be
arrived at by multiplying the employee's hourly earnings by the hours
in the employer's normal full-time workweek or by multiplying the employee's
daily earnings by the number of days and fractional days
in the employer's normal full-time workweek
per week at the time of the injury in the business
operation of the employer for the particular employment in which the
employee was engaged at the time of the employee's injury, whichever
is greater. Except as provided in par. (b), it is presumed that the
employer's normal full-time workweek is 24 hours for flight
attendants, 56 hours for firefighters, and at least 40 hours for
other employees unless there is reasonably clear and complete
documentation to rebut it. If the employer has a multi-week schedule
with regular alternating hours, the employer's normal full-time
workweek is the average number of weekly hours in the multi-week
schedule. A workweek is from Sunday to Saturday.
1. The council approved the
"overtime" language: not shown here, but tabled the
language changes shown above.
2. Whether one uses the employee's
daily earnings (or hourly earnings) those earnings have
always been multiplied by the days (or hours) in the employer's
normal full-time workweek, not the days (or hours) worked by the
claimant. True, the department uses the claimant's actual work days
(or hours) as a starting point to audit the employer's workweek.
But, that does not conclusively determine the workweek.
3. The confusion is getting
worse. In 2000, LIRC and the circuit court refused to consider
arguments from the employer regarding its regular schedule. Instead,
LIRC and the court determined the workweek under 102.11(1)(a) is
based on the "local labor market" not the injury
employer's schedule. The department has never used the local labor
market under par. (a). The labor market concept used in UI is not
used in WC. In WC, the closest one comes to the local labor market
is looking at "same or similar" employment under par.
(c)--a rarely used section. See Diane Aronson v. Caregivers Home
Health, No. 00-CV000615, Waukesha County, November 1, 2000.
4. Adding the hourly formula
to the daily formula in the current statute will not change the
average weekly earnings. However, for most insurers and employers
the hourly formula will make more sense.
Amend 102.11(1)(f) as
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 employee 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
3. The members of a
regularly scheduled class of part-time employees must do the same
type of work and maintain the same regular work schedule. The
members of a class do not need to work the same days or shifts, but
a schedule is not regular if the minimum and maximum weekly hours
scheduled by the employer or actually worked by any member of the
class vary by more than 5 hours during the 13 weeks prior to the
injury. Employees are not part of a class unless at least 10 percent
of the employer's workforce doing the same type of work are members
of the class. A class must have more than one employee. An employer
may not use multiple locations to establish a class. For State of
Wisconsin employees it is presumed that membership in a class is
determined separately for each agency or department, although a
smaller subunit may used if appropriate.
Comment. These changes
codify the department's current procedures.
1. In a NRA case, the court
distinguished a "class" of four part-time watchmen working
staggered-days and staggered-shifts from a full-time watchman. See
Allis Chalmers v Industrial Comm., 215 Wis. 616 (1934). See also,
Carr's Inc. v. Industrial Comm., 234 Wis. 466 (1940).
2. The 5-hour variance is
less than the 8-hour variance approved by the Wisconsin Supreme
Court in Carr's Inc., the leading part-time, part-of-class wage
3. 13 Weeks is borrowed from
the 90-day period specified for full-time employment in DWD
4. The department wage
analysts have used the 10-percent concept and required more than one
employee in a class at least since the 1980's when Harry Benkert
wrote: "The class must be regularly scheduled. We have also
administratively determined 'class' to mean more than one employee.
There must be a significant number of employees relative to the
employment to constitute a class."
5. Until very recently, the
department did not consider multiple locations in determining a
class. Recently it has been allowed in some cases. Wage analysts are
unanimous that the law would be simpler to administer if the
long-standing policy excluding multiple locations were codified.
Delete the sunset
provision on the fee dispute program.
provision was enacted in 1992. The sunset has been extended every
two years since then. The program is well established.
inspections by requiring the Department to secure the services of
safety specialists by contract, MOU or direct employment.
Comment. DOC will
continue with inspections under the MOU with the Worker's
Compensation Division until the end of the year 2001. It is not yet
clear how the Department will secure these services. Still, the
Council wants the Department to have clear responsibility and
authority to act.
1. Eliminate the
12-year statute of limitations for claims involving the loss or
total impairment of:
- the hand or rest
of the arm,
- the foot or rest
of the leg,
- any loss of
- any brain injury
and total or
partial knee or hip replacements.
2. Pay for
otherwise meritorious claims from the Work Injury Supplemental
Benefit Fund (WISBF) 1/1/2002 regardless of the date of injury.
1. Insurers used to
pay these claims voluntarily if the claim was meritorious, except
for the statute of limitations. Now, insurers routinely defend
against these claims citing the statute of limitations. Since these
are pre-existing conditions group health carriers refuse coverage.
There has been a significant increase in problems with serious eye
injuries and the need for prosthetic devices, both of which
essentially require life-long treatment. The need for future knee or
hip replacements is a trap for the unwary. Doctors advise holding
off surgery as long as possible. Unwary claimants may not know to
preserve their right to surgery by filing an application for
injuries beyond the 12-year period are currently funded from WISBF.
Wages received from
other employment held by the employee when the injury occurred shall
be considered in computing actual wage loss from the employer in
whose employ the employee sustained the injury, if the employee's
weekly temporary disability benefits are calculated under s.
102.11(1)(a). If the employee's wage is expanded under s.
102.11(1)(a) the employee's earnings from other employment held at
the time of injury shall be offset against that expanded wage not
the actual wage at the time of injury.
Comment. This would
clarify that the offset against the expanded wage is only for
workers who had more than one job at the time of injury. [For people
who get a second job after the injury the offset has always
been taken against the actual pre-injury wage, not the wage
expanded under s. 102.11(1)(a).] 2-Job wage earners were clearly
relying on the 2-job wages prior to the injury. For this reason, in
1985, the offset was eliminated. In 1988, the offset was restored to
prevent what some saw as unjust enrichment. However, the offset was
intended to be against the expanded wage to prevent undue hardship.
Unfortunately, the statutory language has never been clear. In
recent years, there have been more and more arguments on this point.
And, recent LIRC decisions have added to the confusion, by adding
wages from both jobs to determine both the TTD rate and the
offset--something the department has never done. Typically, the
problem addressed by this change occurs when the worker who is hurt
on a part-time job is able to partially return to work at the
full-time job. (Once they have returned full-time to the full-time
job, the offset will almost always reduce TTD to zero regardless of
whether it is taken against the actual or expanded wage from the
part-time job.) The problem is that the higher wage from a partial
return to the full-time job almost immediately offsets the actual
wage from a (typically) lower paying part-time job. Even when the
offset is made against the expanded wage, the worker is still making
far less than prior to the injury from both jobs (that is, there is
no unjust enrichment.) In short, the department believes the 1988
offset against the expanded wage was a compromise between no
offset and offsets against actual wage.
Reimbursements to Counties. After reviewing the Departments
proposal to amend s. 102.27(2)(b), Stats., the Council requested that
Mr. OMalley prepare some examples of the problems created by the
statute. He said he would circulate them to the members prior to the
- Caucuses. The
members adjourned to separate caucuses to discuss additional
Restaurants decision. The members reconvened. Mr. Bagin said it
appeared both sides had made significant progress in developing
proposals that would probably be acceptable to all members. Still, he
said the members would like Mr. Smith and Mr. OMalley to meet with
attorneys selected by labor and management members of the Council to
discuss possible statutory options to limit the scope of the recent
Honthaners Restaurants case. Mr. Smith and Mr. OMalley said they
would be glad to participate. The meeting will take place prior to the
next Council meeting.
- Combined Reporting
under UI. Mr. Smith handed out a memo he had received from Mr.
Mike Tomsyck in the Divisions Bureau of Insurance Programs. Based
on newspaper reports, Mr. Tomsyck was concerned that if the
Unemployment Insurance Division allowed combined reporting of payroll
for self-insured companies and insured companies that have common
ownership or subsidiary relationships, the Worker's Compensation
Division Self-Insurance Program would have no way to separate out
payroll to assess self-insured employers for insolvent self-insured
employers under s. 102.28(7), Stats. Mr. Tomsyck said assessments that
were necessary in the Hardy case might not be accurate if combined
payroll reporting is enacted.
Mr. Buchen said he was familiar with the combined reporting issue, but
was not sure what the impact would be. He suggested that the
Department work with the Department of Revenue to more fully
understand the impact of the proposal.
- Next meeting.
The Council adjourned until 9 a.m., July 24, 2001, at a Madison
location to be determined.