COURT OF APPEALS
DECISION
DATED AND FILED
November 28, 2000
Cornelia G. Clark
Clerk, Court of Appeals
of Wisconsin
NOTICE
This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10
and Rule 809.62.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
Stratford
Area Fire Department and Employers
Mutual
Casualty Co.,
Plaintiffs-Appellants,
v.
Labor
and Industry Review Commission and John
Krause,
Defendants-Respondents.
APPEAL from a judgment of the circuit court for Marathon County: patrick M. brady, Judge. Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1 PER CURIAM. Stratford Area Fire Department and its insurer appeal a judgment affirming a decision of the Labor and Industry Review Commission. The commission affirmed an administrative law judge’s interlocutory order increasing John Krause’s temporary total disability benefits and dismissing his application for permanent partial disability benefits without prejudice. The ALJ found that Krause’s claim for loss of earning capacity benefits was premature because, although Krause sustained “unscheduled” injuries, he had not completed vocational retraining and the evidence submitted to the ALJ was inadequate to determine whether those injuries resulted in permanent partial disability. Stratford argues that the commission improperly calculated Krause’s weekly wage and that it lacked authority to dismiss Krause’s claim without prejudice after he failed to present sufficient evidence at the hearing. We reject these arguments and affirm the judgment.
¶2 Krause was injured when he was struck by a car while working as a part-time firefighter for $8 per hour. Wisconsin Stat. § 102.11[1] and Wis. Adm. Code § DWD 80.30 create a presumption that a volunteer firefighter is entitled to the average maximum weekly earnings of a full-time firefighter. See City of Elroy v. LIRC, 152 Wis. 2d 320, 326, 448 N.W.2d 438 (Ct. App. 1989). That presumption may be rebutted by a “specific showing … made in an individual case that such wage is not proper.” See Wis. Adm. Code § DWD 80.30. Relying on Elroy, LIRC correctly concluded that Stratford could rebut the presumption of maximum earnings, but only to the extent that there is a disparity between the maximum earnings figure and the “usual going earnings” paid to full-time firefighters. Stratford could overcome the presumption by showing a lower rate for full-time firefighters in the area, not by showing that Krause was paid less than the rate for a full-time firefighter. Because Stratford had not submitted any proof of the “usual going earnings” of full-time firefighters in the area, LIRC correctly concluded that the presumption had not been rebutted.
¶3 Wisconsin Stat. § 102.18(1)(b) gives LIRC discretion to issue interlocutory orders and does not restrict the type of order that may be interlocutory. The statute allows reservation of jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate. See Legislative Reference Bureau Analysis of 1973 Assembly Bill 952.
¶4 LIRC properly exercised its discretion when it issued an interlocutory order regarding Krause’s claim for permanent partial disability benefits. Because this matter is committed to agency discretion, the scope of our review is narrow and LIRC’s reservation of jurisdiction will be upheld unless Stratford can establish a flagrant abuse of discretion. See Appleton Electric Co. v. Minor, 91 Wis. 2d 825, 831, 284 N.W.2d 99 (1979). Based on a report from the Department of Vocational Rehabilitation, LIRC found that there was a possibility Krause suffered permanent partial disability. It reasonably retained authority to compensate Krause for that disability because the evidence presented at the hearing was inadequate to make a final determination. See Vernon County v. DILHR, 60 Wis. 2d 736, 740, 211 N.W.2d 441 (1973).
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.