2007AP607 Michels Pipeline Construction and Bituminous Casualty Corp. v. LIRC

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Employment
Workers compensation; vocational rehabilitation

The social security offset under sec. 102.44(5) may be used to reduce temporary disability benefits paid pursuant to sec. 102.43(5) during the period that the worker is engaged in a vocational rehabilitation program.

"Wisconsin Stat. § 102.43(5) plainly states that the term 'temporary disability … shall include such period as the employee may be receiving instruction pursuant to [Wis. Stat. §]102.61.' Section 102.61, titled 'Indemnity under rehabilitation law,' addresses compensation for employees enrolled in vocational rehabilitation programs. Michels argues that the maintenance benefits referenced in Wis. Stat. § 102.61 are not intended to supplant temporary disability. The relevant language is as follows: '[A]n employee who is entitled to receive and has received compensation under this chapter, and who is entitled to and is receiving instructions under 29 USC 701 to 797b, [federal labor law, vocational rehabilitation services] as administered by the state … shall, in addition to other indemnity, be paid the actual and necessary expenses of travel … and, if the employee receives instructions elsewhere than at the place of residence, the actual and necessary costs of maintenance, during rehabilitation, subject to the conditions and limitations specified in sub. (1r).' Wis. Stat. § 102.61(1). The temporary disability benefit allowed under Wis. Stat. § 102.43(5) is 'compensation … payable for loss of earnings.'

The maintenance benefits under § 102.61(1) serve a completely different purpose, that is to address 'actual and necessary costs of maintenance' if an employee 'receives instructions elsewhere than at the place of residence.' Furthermore, § 102.43(5) states that the forty-week limitation on temporary disability benefits 'does not apply to temporary disability benefits under this section, travel or maintenance expense under [Wis. Stat. §] 102.61(1) … if the department determines that additional training is warranted.' (Emphasis added.) The legislature clearly set these out as two distinct benefits."

Reversed.

Recommended for publication in the official reports.

2007AP607 Michels Pipeline Construction and Bituminous Casualty Corp. v. LIRC

Dist. II, Waukesha County, Hassin, J., Snyder, J.

Attorneys: For Appellant: Rohe, Thomas M., Milwaukee; For Respondent: Hart, David A., III, Madison

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