Statutory Interpretation – Hazardous Duty Pay

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WI Court of Appeals – District IV

Case Name: Shari Vander Galien v. State of Wisconsin Employment Relations Commission, et al.

Case No.: 2017AP790

Officials: Brennan, Brash and Dugan, JJ.

Focus: Statutory Interpretation – Hazardous Duty Pay

Shari Vander Galien, who was employed as a correctional sergeant by the Department of Corrections (DOC) until April 17, 2015, appeals an order that affirmed a decision by the Wisconsin Employment Relations Commission (WERC) denying Vander Galien’s claim for additional hazardous duty pay for periods of time after she returned to work from a December 2011 work injury. Following the injury, which resulted when a prisoner collided with her while coming around a corner, DOC paid Vander Galien hazardous duty pay for about three months, ending April 4, 2012.  After a doctor cleared her to return to work without restrictions, Vander Galien requested hazardous duty pay for: (1) 271.25 hours used for medical appointments and absences from work between April 4, 2012, and November 15, 2014; and (2) daily absences for a five-month period beginning November 17, 2014, when she notified DOC that she could no longer work at all and stopped reporting to work.  DOC denied the hazardous duty pay she sought for those absences.

Vander Galien appealed and WERC rejected her appeal and dismissed her claim. WERC concluded that she was ineligible for hazardous duty pay for any of the requested time. Vander Galien had argued that she was entitled to the benefit for the 271.25 hours because the injury was a cause of the appointments and absences from work, but WERC made a factual finding that “[t]he medical appointments and absences were not directly related to the work injury” she suffered. She had argued that she was entitled to the benefit for the five months beginning November 17, 2014, because the injury made her unable to perform her duties, but WERC made a factual finding that she was “physically able to perform the duties of correctional sergeant from November of 2014 through her termination of employment in April of 2015.” Pursuant to WIS. STAT. § 227.52(7), she sought judicial review of the decision, and the trial court affirmed.

Vander Galien has the burden of showing that the factual findings on which the agency’s conclusions are based are not supported by substantial evidence in the record or that the agency erroneously interpreted a provision of law. See WIS. STAT. § 227.57(5) and (6). She has not satisfied that burden. We therefore affirm because we find no ground for setting aside the agency’s action under any of the provisions of WIS. STAT. ch. 227. See § 227.57(2).

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.