| IN RE: BJORN V. BOLIN | ) | DOCKET NO. 91 0873 |
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| CLAIM NO. S-668634 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Bjorn V. Bolin, by
- R. S. Wilson & Associates, per
- Scott W. Jablon; and Pro Se
- Self-insured Employer, Kitsap County, by
- Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn, per
- Rebecca D. Craig
- Department of Labor and Industries, by
- Office of the Attorney General, per
- John Wasberg, Assistant
This is an appeal filed by the claimant, Bjorn V. Bolin, on February 20, 1991, from an order of the Department of Labor and Industries dated January 15, 1991. The Department order of January 15, 1991 required the self-insured employer to pay all medical vendors for all services provided in relation to Mr. Bolin's claim in accordance with the medical aid rules; required the self-insured employer to pay Ms. Bolin at the rate of $4.50 per hour for four hours per day to begin on the initial date Mr. Bolin was released to home health care from the hospital through July 24, 1990; required the self-insured employer to provide any necessary home and vehicle modifications in accordance with Washington Administrative Code 296-23-50015; and ordered that Mr. Bolin be kept on salary in accordance with RCW 51.32.090(6). The Department order is Reversed and Remanded.
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 claimant and the self-insured employer to a Proposed Decision and [2] Order issued on April 29, 1992 in which the order of the Department dated January 15, 1991 was reversed and the matter was remanded to the Department to issue an order instructing the self-insured employer to pay temporary total disability benefits from the date last paid through January 15, 1991 and to take such further action as may be appropriate.
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 issues presented by this appeal and the evidence presented by the parties are adequately summarized in the Proposed Decision and Order.
We have granted review in order to resolve the issue of Mr. Bolin's daily and monthly earnings as a juror for the Kitsap County Superior Court. We believe that the Proposed Decision and Order issued by our industrial appeals judge appropriately resolved the issues of whether Mr. Bolin is entitled to interest on past paid medical bills, whether he is entitled to a Board order setting interest payable on past due time loss compensation, and whether he is entitled to payment of attorney fees and costs for past litigation before the Board of Industrial Insurance Appeals and the Superior Court. While testimony concerning the provision of home health care services was presented, the parties did not present any probative testimony as to an appropriate rate of pay for Ms. Bolin's home health care services. Accordingly, the Department's determination that Ms. Bolin should be paid the rate of $4.50 an hour for 4 hours per day for home health care commencing upon Mr. Bolin's release from hospital through July 24, 1990, shall not be disturbed. [3]
Bjorn V. Bolin was seriously injured in an automobile accident while in the course of employment as a juror with Kitsap County Superior Court on April 14, 1984. Mr. Bolin suffered an incomplete quadriplegia as a result of the accident. Mr. Bolin was paid a fee for jury service of $10.00 a day, per RCW 2.36.150. He additionally received the sum of $14.35 for mileage costs.
The term wages has been defined by RCW 51.05.178(1) as follows:
The term "wages" shall include the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer as part of the contract of hire, but shall not include overtime pay except in cases under subsection (2) of this section. However, tips shall also be considered wages only to the extent such tips are reported to the employer for federal income tax purposes.
Our Court of Appeals has interpreted RCW 51.08.178(1) as including any and all forms of consideration received by the employee from the employer in exchange for work performed. Rose v. Dep't of Labor & Indus., 57 Wn. App. 751, 758 (1990).
In this particular case, mileage reimbursement was designed to offset the cost of commuting to the job site. The mileage fee is no more than an incidental travel reimbursement which was not being tendered in exchange for the performance of Mr. Bolin's jury duties. Thus, Mr. Bolin's daily rate of pay was $10.00.
The employer desires to continue the payment of wages to Mr. Bolin in accordance with RCW 51.32.090(6). This provision can obviously be legally utilized. It specifically states:
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 any [4] payment provided in subsection (1) of this section during the period his or her employer shall so pay such wages.
The employer maintains that Mr. Bolin's monthly salary should be calculated at $10.00 per day, seven days a month. We disagree.
The above-quoted exception to receipt of temporary total disability benefits provides a reasonable and rational device to determine a worker's wage where that worker is injured during a brief and irregular encounter with a particular employer. In re Pauline Sandstrom, BIIA Dec., 85 2110 at 4 (1987). Likewise, we noted in Sandstrom that the Industrial Insurance Act was not designed to pay injured workers an income for not working far in excess of their wages earned at the time of injury. Id. at 5.
It is not unreasonable to expect Mr. Bolin to have been available for his jury duties every court day of the month. So long as Mr. Bolin was impaneled as a juror, he was expected to attend court daily. His jury duty could only be shortened by permission of the court itself. Short of such leave, Mr. Bolin was legally bound to serve his jury tour. It is not unusual for jury cases to extend for more than 30 days depending on the complexity of the case and the deliberation process unique to each impaneled jury. In this instance, it is appropriate to establish Mr. Bolin's salary at $50.00 per week. (5 court days per week x $10.00 daily jury fee).
After consideration of the Proposed Decision and Order and the petitions for review filed hereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order should be modified to reflect Mr. Bolin's accurate monthly wage. [5]
We adopt the proposed Findings of Fact Nos. 1, 2, 3, 4, 5, and 6. We further adopt Conclusions of Law Nos. 1, 2, 3, and 5 (renumbered to 4). In addition, we make the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
7. Bjorn Bolin's daily salary at the time of his industrial injury on April 18, 1984 was ten dollars ($10.00) per day. He was injured on his first day of employment. He would have worked as a juror five days per week, every week of his jury tour, had his services been required.
CONCLUSIONS OF LAW
5. The order of the Department of Labor and Industries dated January 15, 1991 which instructed self-insured employer to pay all medical vendors; to pay Ms. Bolin at the rate of $4.50 per hour for four hours per day to begin on the initial date Mr. Bolin was released to home health care from the hospital through July 24, 1990; required the self-insured employer to provide any necessary home and vehicle modifications in accordance with Washington Administrative Code 296-23-50015; and ordered that Mr. Bolin be kept on salary in accordance with RCW 51.32.090(6) is incorrect.
The Department order is reversed and this matter is remanded to the Department of Labor and Industries to issue an order which requires the self-insured employer to pay all medical vendors for services provided in relation to Mr. Bolin's claim in accordance with the medical aid rules; requires the self-insured employer to pay Ms. Bolin at the rate of $4.50 per hour for four hours per day to begin on the initial date Mr. Bolin was released to home health care from the hospital through July 24, 1990; requires the self-insured employer to provide any necessary home and vehicle modifications in accordance with Washington Administrative Code 296-23-50015; and to order [6] the self-insured employer to keep Mr. Bolin on salary in accordance with RCW 51.32.090(6) at the rate of $10.00 per day, five days a week from the day that time loss compensation was last paid, less previous salary payments, and to take all further necessary and proper action as is required by law.
It is so ORDERED.
Dated this 30th day of November, 1992.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
DISSENT
I disagree with the Board majority's determination that, in keeping Mr. Bolin on salary in lieu of temporary total disability compensation pursuant to RCW 51.32.090(6), such salary should be calculated at the rate of $10.00 per day, five days per week. I believe his salary should be calculated at the rate of $10.00 per day for seven days per month, for a total of $70.00 per month.
My reasons for so concluding are completely set forth in employer's counsel's Petition for Review, which accurately summarizes the pertinent evidence leading to the reasonableness of the $70.00 per month wage amount. I adopt the rationale therein as my own. To that extent, I dissent from the majority's Finding No. 7 and Conclusion No. 5. [7]
Dated this 30th day of November, 1992.
/s/
R. H. POWELL Member