State, Dept. of Health & Social Services v. Labor & Industry Review Com'n
| Decision Date | 12 January 1990 |
| Docket Number | No. 89-1410,89-1410 |
| Citation | 159 Wis.2d 300,464 N.W.2d 74 |
| Parties | STATE of Wisconsin, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Plaintiff-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION, and William D. Tappa, Defendants-Respondents. . Submitted on Briefs: |
| Court | Wisconsin Court of Appeals |
Donald J. Hanaway, Atty. Gen., and Lowell E. Nass, Asst. Atty. Gen., for defendants-respondents.
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
The Department of Health and Social Services appeals from an order affirming the Labor and Industry Review Commission's order under sec. 56.21(1), Stats. (1983-84), 1 awarding temporary total disability benefits to William Tappa for injuries he sustained while confined at Sanger Powers Correctional Institution. LIRC concluded that Tappa was capable of earning the maximum average weekly wage as computed under sec. 102.11(1)(intro.), and (1)(a), Stats., and Wis.Adm.Code sec. Ind. 80.51(3) and determined his benefits accordingly. DHSS argues that Wis.Adm.Code sec. Ind. 80.51(3) is inapplicable or invalid and that Tappa's average weekly earnings should have been computed at the $30 minimum provided for under sec. 102.11(1)(intro.).
We conclude that Wis.Adm.Code sec. Ind. 80.51(3) does not apply to Tappa because he was not injured in a prison industry. We further conclude that LIRC should have computed Tappa's average weekly earnings under sec. 102.11(1)(c), Stats. We therefore reverse and remand the cause to the circuit court with directions that it remand the proceedings to LIRC for a determination of Tappa's temporary total disability on the basis of his average weekly earnings computed under sec. 102.11(1)(c).
When Tappa was injured, he was working as lead man in the maintenance department. He was earning $.45 per hour. After his release from prison, he filed a claim against DHSS under sec. 56.21(1), Stats., for compensation to an injured prisoner. LIRC found that Tappa's injury caused temporary total disability payable to him from his date of release until his physician permitted him to return to work. Pursuant to Wis.Adm.Code sec. Ind. 80.51(3), LIRC determined that Tappa was presumed to be earning the maximum average weekly wage under sec. 102.11(1)(intro.) and (1)(a), Stats., and computed his benefits accordingly. LIRC computed Tappa's average weekly earnings on the basis of his work history prior to incarceration, because Tappa had no work record after his release. From this history, LIRC inferred that Tappa was capable of earning the maximum weekly wage in effect on the date of his release from prison. LIRC therefore concluded that Tappa was entitled to temporary total disability at the maximum rate.
APPLICABLE STATUTES AND RULE
Section 56.21(1), Stats., provides:
If an inmate of a state institution, in the performance of assigned work is injured so as ... to have materially reduced earning power, the inmate may, upon being released from such institution ... be allowed and paid such compensation as the department of industry, labor and human relations finds the inmate entitled to. The inmate shall be compensated on the same basis as if the injury had been covered by ch. 102.... If the injury results from employment in a prison industry, the payment shall be made from the revolving appropriation for its operation. If there is no revolving appropriation, payment shall be made from the general fund....
Section 102.11(1) (intro.), Stats., provides:
The average weekly earnings for temporary disability ... for injury in each calendar year on or after January 1, 1982, shall be taken at not less than $30 nor more than the wage rate which results in a maximum compensation rate of 100% of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year....
Section 102.11(1)(a), Stats., provides:
Daily earnings shall mean the daily earnings of the employe at the time of the injury in the employment in which he was then engaged.... The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employe was engaged at the time of his injury.
Section 102.11(1)(c), Stats., provides:
In the case of persons performing service without fixed earnings, or where normal full-time days or weeks are not maintained by the employer in the employment in which the employe worked when injured, or where, for other reason, earnings cannot be determined under the methods prescribed by par. (a) or (b), the earnings of the injured person shall, for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) or (b).
Section 102.11(1)(b), Stats., applies to seasonal employment.
Wisconsin Adm.Code sec. Ind. 80.51(3) provides:
Prisoners injured in prison industries are considered to be earning the maximum [average] weekly earnings under the provisions of s. 102.11, Stats., except as a showing is made to the contrary.
We first consider whether Wis.Adm.Code sec. Ind. 80.51(3) applies. We conclude that it does not.
The interpretation of an administrative rule is a question of law which we review de novo. Castle Corp. v. DOR, 142 Wis.2d 716, 719, 419 N.W.2d 709, 710 (Ct.App.1987). An administrative rule cannot be read in isolation. McGarrity v. Welch Plumbing Co., 104 Wis.2d 414, 427, 312 N.W.2d 37, 43 (1981). If it is part of a comprehensive statutory and regulatory scheme, it must be read in conjunction with its companion statutes. Id. Wisconsin Adm.Code sec. Ind. 80.51(3) is part of a comprehensive statutory and regulatory scheme providing for employment and compensation for inmates in the state prisons.
DHSS may establish prison industries with the approval of the Prison Industries Board. Section 56.01(1)(b), Stats., provides:
The department, with the approval of the prison industries board, may establish industries for the employment of inmates in the state prisons. Prison industries may engage in manufacturing articles for the state and its political subdivisions and any tax-supported institution or nonprofit agency and for sale of such articles to other states or political divisions thereof or to the United States....
LIRC argues that "it is cutting the bread 'too thin' " to assert that Tappa, as a lead maintenance person, was not an essential part of the prison's "industries." We cannot, however, cut the bread thick enough to fit Tappa's "assigned work" within the compass of "prison industries."
It is plain from the statutes which are "companion" to Wis.Adm.Code sec. Ind. 80.51(3) that not all inmates work in a prison industry. Section 46.065, Stats., provides that the department may allow inmates Section 56.21(1), Stats., recognizes that an injury to an inmate may result from "the performance of assigned work" or "from employment in a prison industry." If the latter, payment is made from the revolving appropriation for operation of the prison industry. If, however, the injury results from the performance of assigned work, payment shall be made from the general fund.
We conclude that "prison industries" as used in Wis.Adm.Code sec. Ind. 80.51(3) has the meaning given to that term in sec. 56.01(1)(b), Stats. Thus, an inmate is not employed in a prison industry unless the prisoner is working in an industry established by DHSS with the approval of the Prison Industries Board. LIRC does not claim that Tappa was so employed. Because we find that the administrative rule has no application to the controversy between DHSS and LIRC, we do not decide the validity of the rule.
LIRC argues that Tappa was entitled to temporary total disability benefits based on the wage rate resulting in the maximum compensation rate under sec. 102.11(1), Stats. DHSS argues that Tappa's benefits should have been computed at the minimum average weekly wage rate of $30. We conclude that Tappa's earnings should have been "taken" under sec. 102.11(1)(c), Stats., at the usual going earnings paid for similar services on a normal full-time basis in employment in which earnings can be determined under sec. 102.11(1) (intro.) and (1)(a), Stats.
LIRC contends that, even if Wis.Adm.Code sec. Ind. 80.51(3) does not apply, its determination of Tappa's benefits was fair and reasonable under sec. 56.21(1), Stats., or sec. 102.11(1), Stats. There are no disputed facts. The application of statutes to undisputed facts is a question of law. Local No. 695 v. LIRC, 154 Wis.2d 75, 82, 452 N.W.2d 368, 371 (1990). "The black-letter rule is that a court is not bound by an agency's conclusions of law." Id. (quoting West Bend Educ. Ass'n v. WERC, 121 Wis.2d 1, 11, 357 N.W.2d 534, 539 (1984)). The determination of an inmate's weekly average earning rate under secs 56.21(1) and 102.11(1), Stats., is a...
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