-----Original Message-----
From: Jan Schroeder [mailto:jschroeder@pjmlaw.com]
Sent: Thursday, April 04, 2002 3:00 PM
To: shorem@dwd.state.wi.us
Subject: Child Support Orders


I read with interest your memo on the issue of child support orders. I agree
with your conclusion that an order to withhold income for child support
includes PPD and all other benefits or payments under Chapter 102.  I too
think that my clients (insurers and employers) are better off withholding
per the order than risking contempt. Better safe than sorry.  I tell my
clients that if the worker thinks we're wrong, he can appeal the family
court order in circuit court in front a family law judge. If we're wrong, he
can get it back from circuit court.  But I don't think we're wrong.

I think the issue of what type of payment is covered by the order is
actually crystal clear: the answer is in the plain language of Sec.
767.265(1) which states:

"Each order for child support under this chapter...constitutes an assignment
of all commissions, earnings, salaries, wages, pension benefits, benefits
under chapter 102 or 108, lottery prizes that are payable in instalments and
other money due or to be due in the future to the department or its
designee."

The word all modifies benefits under chapter 102

I think the unpublished Bottomly case is probably not correct. It says that
PPD is akin to a personal injury award for pain and suffering.  It is not.
We don't pay pain and suffering under chapter 102.  We pay for loss of
future/anticipated wages due to the effects of the injury.

Whether the benefit  is intended to replace income is irrelevant in either
event.  DWD 40.02(3) defines "assets available for imputing income" as "net
proceeds resulting from worker's compensation or other personal injury
awards not intended to replace income. Further DWD 40.02 (13) defines"gross
income" as "net proceeds resulting from worker's compensation or other
personal injury awards intended to replace income"  Clearly, we don't award
PPD for pain and suffering: it is awarded to replace the anticipated loss of
future income. these two code provisions governing child support are broad
enough to cover wc benefits intended to replace income and those benefits
not intended to replace income.

Like I said, seems pretty clear to me. I think we haven't seen an aggrieved
worker taking this issue up through the courts, because the family law
expert lawyer probably advised the aggrieved worker that he/she will lose.

Anyway, thank for your work on the issue.  Your memo is helpful.

Jan M. Schroeder
Peterson, Johnson & Murray, S.C.
733 N. Van Buren Street
Milwaukee, WI  53202
jschroeder@pjmlaw.com
(414) 278-8800