| IN RE: PAULINE I. SANDSTROM | ) | DOCKET NO. 85 2110 |
| ) | ||
| CLAIM NO. S-804275 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Pauline I. Sandstrom, by
- Donald C. Cramer
- Employer, King County, by
- Perkins Coie, per
- Michael L. Hall
- Department of Labor and Industries, by
- The Attorney General, per
- William R. Strange, Assistant
This is an appeal filed by the claimant on August 6, 1985 from an order of the Department of Labor and Industries dated July 23, 1985 which provided that as the self insured employer had continued to pay the claimant the wages which she was earning at the time of the industrial injury, the claimant was being kept on salary and was not entitled to time loss benefits. The Department order is affirmed.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on timely Petitions for Review filed by the Department of Labor and Industries and the employer to a Proposed Decision and Order issued on March 26, 1987 in which the order of the Department dated July 23, 1985 was reversed and the claim remanded to the Department with direction to pay to the claimant time-loss compensation beginning April 1, 1985 in the amount of $215.00 [2] per month, less the wages paid to the claimant by the self-insured employer.
The claimant's motion to dismiss the self-insured employer's Petition for Review as untimely is hereby denied. RCW 51.52.104 specifically states that filing a Petition for Review is perfected by mailing. The employer's Petition was both mailed, and received, by the Board before May 1, 1987, the deadline. The civil rules of practice only apply unless otherwise provided in Chapter 51. See RCW 51.52.140.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The issue presented by this appeal is whether the Department was correct in denying Ms. Sandstrom time-loss compensation benefits for the reason that the self-insured employer had continued to pay the claimant the wages she was earning at the time of the industrial injury. The claimant contends that $59.95 does not constitute the wages which she was earning at the time of her industrial injury, and that she is entitled to the minimum time-loss compensation rate set out in RCW 51.32.060(1).
Ms. Sandstrom is a 79 year old married woman with no dependents. Over the past several years she worked with the King County Elections Division as an election poll worker. In this capacity she worked for one day, two or three times a year, at the primary, general, and special elections. She was paid at the rate of $3.35 an hour for a fifteen hour day, plus an additional $9.70 as inspector pay and $3.00 zone fee, for a total daily rate of $59.95. [3]
On September 18, 1984, Ms. Sandstrom, during the course of this election poll work, fell and broke her right hip. The claim was allowed by the Department of Labor and Industries, and the self-insured employer began paying time-loss compensation in the amount of $215.00 per month through the period of March 31, 1985. At that time, the self-insured employer informed the claimant that she would be kept on salary in lieu of receiving time-loss compensation. Effective April 1, 1985, King County commenced paying $48.58 per month which was increased retroactively to $59.95 per month. On July 23, 1985 the Department entered an order holding that since the self-insured employer had continued to pay the wages which the claimant was earning at the time of injury, she was not entitled to time-loss compensation.
Ms. Sandstrom contends that the $59.95 per month does not constitute the wage Ms. Sandstrom was receiving at the time of her injury. RCW 51.08.178 sets forth the basis for computing the monthly wages the worker was receiving from all employment at the time of injury. The statute obviously contemplates a worker who is, at the least, attached to the labor market to the extent of working one day a week. The Industrial Insurance Act was intended to provide compensation as a replacement for lost wages while an injured worker is totally or partially disabled and recovering from the effects of an injury incurred during the course of employment. Although not explicitly set forth in RCW 51.08.178, the monthly wage for Ms. Sandstrom's two to three days a year of work can be logically and reasonably determined to be no more than $59.95 per month. Ms. Sandstrom was a voluntarily retired woman who made herself available three days a year to participate in civic service as a poll worker. [4] The wage of $59.95 fairly represents her earnings that she became unable to receive because of the industrial injury.
Having concluded that the $59.95 per month represents the wage Ms. Sandstrom was receiving at the time of her injury, the next question is whether the self-insured employer's payment of that wage to the claimant precludes her receipt of time-loss compensation benefits by operation of RCW 51.32.090(6).
RCW 51.32.090 provides in part:
(1) When the total disability is only temporary, the schedule of payments contained in subdivisions (1) through (13) of RCW 51.32.060 as amended shall apply, so long as the total disability continues. .... (6) Should a worker suffer a temporary total disability and should his or her employer at the time of the injury continue to pay him or her the wages which he or she was earning at the time of such injury, such injured worker shall not receive a payment provided in subsection (1) of this section during the period his or her employer shall so pay such wages. . . . (Emphasis added)
RCW 51.32.060 sets out the schedule of benefits based on a worker's marital status and number of dependents, and establishing a minimum level of benefits. However this minimum level of temporary total disability benefits is to be provided only when an injured worker satisfies the provisions of RCW 51.32.090. The Legislature created exceptions to the providing of time-loss compensation, one of which is contained in RCW 51.32.090(6). This provision clearly and unequivocally sets out an exception to the receipt of temporary total disability benefits where the employer at the time of injury continues to pay the worker the wages she was earning at the time of injury. This exception provides a reasonable and rational device to care for a worker injured during a brief and irregular encounter with covered [5] employment such as Ms. Sandstrom's. The Industrial Insurance Act was not designed to pay injured workers an income for not working far in excess of their earning power or the wages earned at the time of injury.
The statutory scheme set forth in RCW 51.32.090(1) and (6) clearly makes no mention that it is to operate only to the extent that the wages paid to the worker exceed the minimum levels established by RCW 51.32.060, as contended by the Industrial Appeals Judge in the Proposed Decision and Order. Such an interpretation of the law would result in the absurd consequence of compensating Ms. Sandstrom 14 times more in time-loss compensation than she would be entitled to receive in wages had she been able to continue to work, and it would result in King County's being responsible for 14 times the amount of actual loss by Ms. Sandstrom. Such consequences run counter to the intent of the Act, which is to compensate workers for lost earnings while they are recovering from injury and to permit employers the ability to structure their obligations so as to be responsible only for the amount of loss actually incurred by an injured worker.
In summary, we conclude that King County's payment of the wages Ms. Sandstrom was earning at the time of the injury, precludes her receipt of time-loss compensation benefits by operation of RCW 51.32.090(1) and (6). The Department order of July 23, 1985 should therefore be affirmed.
FINDINGS OF FACT
- On January 17, 1985, a report of accident was received at the Department of Labor and Industries alleging an industrial injury to Pauline Sandstrom on September 18, 1984 during the course of her employment with King County. On January 31, 1985 the Department entered an order allowing the claim. [6] On July 23, 1985, the Department issued an order holding that since the claimant had been kept on salary and King County, a self-insured employer, had continued to pay the wages she was earning at the time of her industrial injury, she was not entitled to time-loss compensation during such period as King County should pay such wages. The claimant filed a notice of appeal with the Board of Industrial Insurance Appeals on August 6, 1985, and on August 23, 1985 the Board entered an order granting the appeal and assigning it Docket No. 85 2110.
- On September 18, 1984, while in the course of her employment with King County as an elections inspector, Pauline Sandstrom fell and broke her right hip. She required medical treatment and the injury has thereafter temporarily prevented her from engaging in employment.
- As of September 18, 1984, Ms. Sandstrom was a 79 year old voluntarily retired woman who, for the preceding three years had worked for King County for two or three days per year during the primary, general and special elections as a poll worker. It was expected by both King County and Ms. Sandstrom that this pattern of employment would continue. Throughout the preceding three years Ms. Sandstrom has made no other attempt at employment. As of September 18, 1984, the claimant's rate of pay was $59.95 for the day that she worked.
- King County, the self-insured employer, paid Ms. Sandstrom temporary total disability benefits at the rate of $215.00 per month from September 19, 1984 through March 31, 1985. As of April 1, 1985, the self-insured employer ceased paying temporary total disability benefits and informed Ms. Sandstrom that she would be paid her wages that she was earning at the time of her injury in lieu of temporary total disability benefits. After April 1, 1985 the self-insured employer began paying Ms. Sandstrom the wages she was earning at the time of injury in the amount of $48.58 per month which was later retroactively increased to $59.95 per month.
CONCLUSIONS OF LAW
- The Board has jurisdiction over the parties and the subject matter of this appeal.
- Pursuant to the provisions of RCW 51.32.090(1) and (6), King County's payment of wages that Ms. Sandstrom was earning at the time of injury [7] precludes Ms. Sandstrom's entitlement to temporary total disability benefits.
- The order of the Department of Labor and Industries dated July 23, 1985 denying Ms. Sandstrom temporary total disability benefits for the reason that the employer had continued to pay her the wages she was earning at the time of the industrial injury on September 18, 1984, is correct and should be affirmed.
It is so ORDERED.
Dated this 12th day of October, 1987.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member