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COURT OF APPEALS DECISION DATED AND RELEASED August 29, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0735-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
THRESHERMEN'S MUTUAL
INSURANCE
COMPANY and HILLSBORO
SENTRY
ENTERPRISE,
Plaintiffs-Appellants,
v.
STATE OF WISCONSIN,
LABOR AND INDUSTRY
REVIEW COMMISSION and
WANDA BLOOR,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Rock County:
JAMES P. DALEY, Judge. Reversed
and remanded.
Before Eich, C.J., Dykman,
P.J., and Vergeront, J.
PER
CURIAM. Hillsboro Sentry Enterprise and its workers'
compensation insurer appeal from an order affirming a decision of the Labor and
Industry Review Commission (LIRC).[1] LIRC's decision awarded workers'
compensation benefits to Wanda Bloor, a Sentry employee, for a work-related
injury. The issue is whether LIRC
properly awarded her the same compensation as a full-time employee would
receive, although she only worked fourteen hours per week for Sentry. We review LIRC's decision independently,
without deference to the trial court. Davis
v. Psychology Examining Bd., 146 Wis.2d 595, 599, 431 N.W.2d 730, 732
(Ct. App. 1988). Because we conclude
that LIRC did not adequately explain the legal basis for its decision, we
reverse and remand for redetermination.
The material facts are
not disputed. Sentry employed four
part-time workers, including Bloor, on hourly wages and without fringe
benefits. Its four other employees were
full-time, salaried and received fringe benefits. The part-timers did not have the same duties or work the same
hours, but all worked on a regular schedule.
Bloor also had another part-time job.
Under the statutory
scheme, disability compensation is based on the hours "normally worked per
week ... for the particular employment in which the employee was
engaged at the time of the employee's injury." Section 102.11(1)(a), Stats. In Carr's, Inc. v. Industrial Comm'n,
234 Wis. 466, 471, 290 N.W. 174, 176 (1940), the supreme court interpreted this
section to mean that a part-time employee could receive less compensation than
a full-time worker only if he or she belonged to a distinct class of part-time
employees, without, however, providing any precise definition of that
term. To implement the principle set
forth in Carr's, the Department of Industry, Labor and Human
Relations (DILHR) enacted a regulation providing that an employee shall be
compensated at a full-time rate "unless the employee is a member of a
regularly scheduled class of part-time employees." Wis.
Adm. Code § IND 80.51(4).
If an employee is to be
compensated as a part-time worker, the employee will receive a minimum of
twenty-four hours per week compensation, unless the employee has voluntarily
chosen part-time work and is not employed elsewhere. Section 102.11(1)(f), Stats. Because Bloor does work elsewhere, it is
agreed that she should receive at least twenty-four hours per week
compensation.
In support of its
decision, LIRC noted that neither a labor union nor DILHR formally recognized
Sentry's two types of employees, and that no other workers performed the same
duties or worked identical hours as Bloor.
However, LIRC did not define "regularly scheduled class," nor
explain whether, or why, the criteria it identified must be present to
establish the existence of one. In our
view, the connection is not evident, and the meaning of a "distinct"
or "regularly scheduled" class remains ambiguous in this
context.
Consequently, we cannot
determine how LIRC interprets its regulation, and whether that interpretation
is reasonable in view of the underlying statutory standard. In Village of Random Lake v. LIRC,
141 Wis.2d 559, 567, 415 N.W.2d 577, 581 (Ct. App. 1987), we remanded because
"determinations properly made by an administrative agency in the first
instance have yet to be performed in this case. Without such determinations, this court cannot give the required
weight to the administrative agency's value judgment based upon its
expertise." Here, the situation is
similar. LIRC has not clarified its
legal standard and without benefit of that clarification, meaningful review is
impossible. We remand to the circuit
court with directions to remand to LIRC for further proceedings consistent with
this opinion.
By the Court.—Order
reversed and remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.