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St. Vincent Hospital & Health Care Center, Inc. v. Steele

Court: Indiana Supreme Court
Date filed: 2002-04-22
Citations: 766 N.E.2d 699
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82 Citing Cases




ATTORNEYS FOR APPELLANT:          ATTORNEYS FOR APPELLEE:


N. KENT SMITH                           LORIE A. BROWN

LETHA S. KRAMER                   Brown Law Office, P.C.
Hall, Render, Killian, Heath            Indianapolis, Indiana
   & Lyman, P.S.C.
Indianapolis, Indiana                   KENNETH E. LAUTER

                                        RYAN C. FOX

                                        Haskin Lauter & LaRue
                                        Indianapolis, Indiana

                                        ATTORNEYS FOR AMICUS CURIAE
                                        COMMISSIONER OF INDIANA
                                        DEPARTMENT OF LABOR:

                                        STEVE CARTER
                                        Attorney General of Indiana

                                        JON LARAMORE
                                        Deputy Attorney General
                                        Indianapolis, Indiana

                                        NANCY J. GUYOTT
                                        Chief Counsel
                                        Indiana Department of Labor

                                        J. T. WHITEHEAD
                                        Counsel
                                        Indiana Department of Labor
                                        Indianapolis, Indiana

                                        ATTORNEYS FOR AMICUS CURIAE
                                        INDIANA STATE BUILDING &
                                        CONSTRUCTION TRADES COUNCIL:

                                        WILLIAM R. GROTH

                                        GEOFFREY S. LOHMAN

                                         Fillenwarth  Dennerline  Groth  &
Towe
                                        Indianapolis, Indiana



                                   IN THE


                          SUPREME COURT OF INDIANA


ST. VINCENT HOSPITAL and HEALTH   )
CARE CENTER, INC.,                      )
                                        )    Supreme Court Cause Number
      Appellant-Defendant,              )    34S02-0107-CV-329
                                        )
            v.                          )
                                        )    Court of Appeals Cause Number
ROBERT J. STEELE, M.D.,                 )    34A02-0005-CV-294
                                        )
      Appellee-Plaintiff.                    )


                    APPEAL FROM THE HOWARD CIRCUIT COURT
                      The Honorable Lynn Murray, Judge
                         Cause No. 34C01-9812-CP-951



                           ON PETITION TO TRANSFER


                               April 22, 2002
RUCKER, Justice


      We grant transfer to resolve a conflict of authority in the  Court  of
Appeals concerning Indiana’s Wage Payment Statute.  We conclude the  statute
governs both the frequency and amount an employer must pay its employee.
                        Facts and Procedural History
      The facts of this case are undisputed.  Robert Steele is a  practicing
physician in  Kokomo  who  is  board  certified  in  internal  medicine  and
oncology.  On April 6, 1995, Dr.
Steele and the St. Vincent Hospital  and  Health  Care  Center,  Inc.  (“St.
Vincent”) entered into an employment agreement that extended from  April  1,
1995, through March 31, 2000.  The  agreement  provided  for  the  bi-weekly
payment of compensation as follows:
      For the first  year  of  this  Agreement,  Hospital  shall  compensate
      Physician the greater of Five  Hundred  Twenty-Five  Thousand  Dollars
      ($525,000) per annum or fifty-six percent (56%) of Collections .  .  .
      resulting from Physician’s provision of Professional Services  at  the
      Practice Site.
      . . .
      For years of this Agreement subsequent to its first year,  Physician’s
      compensation each year shall be Base Compensation or fifty-six percent
      (56%) of Collections for that current year or fifty-six percent  (56%)
      of Collections from the previous year, whichever is greater.


R. at 159.  The agreement defined “Collections” as:
      [T]hat cash  actually  received,  during  the  applicable  year,  from
      standard medical office  operations  performed  by  Physician  at  the
      Practice  Site,  including  physician  charges  for  offices   visits,
      Hospital visits, insurance receipts, revenue received from  laboratory
      and radiology services except for revenue for these services  received
      from Medicare or Medicaid, and other billed services for which  income
      is received at the Practice Site.

R. at 160.

      During the  first  two  years,  St.  Vincent  compensated  Dr.  Steele
according to the terms of the agreement.  However, in 1998, the  third  year
of the agreement, St. Vincent began excluding from  Collections  any  monies
Dr. Steele received from Medicare and Medicaid  for  the  administration  of
chemotherapy and other medications.  In so doing, St. Vincent  relied  on  a
proposed  regulation  issued  by   the   federal   Health   Care   Financing
Administration  in  January  1998.   The  proposed  regulation   interpreted
congressional legislation known as Stark II.  Among other things,  Stark  II
prohibited physicians from referring Medicare  and  Medicaid  patients,  for
certain prescription drugs, to a clinical laboratory in which the  physician
had a financial interest.[1]
      Dr. Steele filed a complaint against St. Vincent  alleging  breach  of
contract for failure to pay the full amount of compensation  due  under  the
terms of the agreement and for violation of Indiana’s Wage Payment  Statute.
 He subsequently filed a motion for summary judgment, and St. Vincent  filed
a cross-motion contending that it could not pay the full  amount  due  under
the terms of the agreement because of the proposed  federal  regulation  and
thus there was no violation of the Wage Payment Statute.   Ruling  that  St.
Vincent breached the agreement and violated the  statute,  the  trial  court
entered summary judgment  in  favor  of  Dr.  Steele.   After  a  series  of
hearings on damages, the trial court ordered St. Vincent to pay  $277,823.92
in unpaid wages,  $555,625.84  in  liquidated  damages,  and  $48,000.00  in
attorney fees.
      St. Vincent appealed contending the  trial  court  erred  in  awarding
liquidated damages and attorney fees.  Citing Court of Appeals authority  in
support of its position, St. Vincent argued that the  Wage  Payment  Statute
governs only the frequency with which an employer  must  pay  its  employee.
Thus, the argument continued, there was no violation  of  the  statute  here
because the dispute between the parties concerned only the amount  of  wages
due.  Relying on contrary authority, Dr. Steele insisted the statute
governs both the frequency as well as the  amount  due.   Acknowledging  the
conflict of authority on the issue, the Court of Appeals affirmed the  trial
court ruling that the statute governs  both  the  frequency  and  amount  an
employer must pay its employee.  St. Vincent Hosp. & Health Care Ctr.,  Inc.
v. Steele, 742 N.E.2d 1029, 1035 (Ind. Ct. App. 2001).   St.  Vincent  seeks
transfer.[2]  Although  we  reach  the  same  conclusion  as  the  Court  of
Appeals, we grant transfer  to  resolve  the  conflicting  opinions  on  the
question of whether the Wage Payment Statute governs both the frequency  and
amount an employer must pay its employee.
                             Standard of Review
      Summary judgment is proper if the evidence  shows  that  there  is  no
genuine issue of material fact and the moving party is entitled to  judgment
as a matter of law.  Ind. Trial Rule 56(C); Felsher v. Univ. of  Evansville,
755 N.E.2d 589, 592 (Ind. 2001).  On  appeal,  we  construe  all  facts  and
reasonable inferences drawn from those facts in a light  most  favorable  to
the nonmoving party.  Felsher, 755 N.E.2d at 592.  We carefully  review  the
trial  court’s  decision  to  ensure  that  the  responding  party  was  not
improperly denied its day in court.  Id.
                                 Discussion
                                     I.
                          The Wage Payment Statute
      Indiana Code section 22-2-5, commonly referred to as the Wage  Payment
Statute, provides:
      (a) Every person, firm, corporation,  limited  liability  company,  or
      association, their trustees, lessees, or receivers  appointed  by  any
      court, doing business in Indiana, shall pay  each  employee  at  least
      semimonthly or biweekly, if requested, the amount  due  the  employee.
      The payment shall be made in lawful money of  the  United  States,  by
      negotiable check, draft, or money order, or by electronic transfer  to
      the financial institution designated by the employee.  Any contract in
      violation of this subsection is void.


      (b) Payment shall be made for all wages earned to a date not more than
      ten (10) days prior to the date of payment.  However, this  subsection
      does not  prevent  payments  being  made  at  shorter  intervals  than
      specified in  this  subsection,  nor  repeal  any  law  providing  for
      payments at shorter intervals.  However, if  an  employee  voluntarily
      leaves employment, either permanently  or  temporarily,  the  employer
      shall not be required to pay the employee an amount due  the  employee
      until the next  usual  and  regular  day  for  payment  of  wages,  as
      established  by  the  employer.   If  an  employee  leaves  employment
      voluntarily, and without the employee’s whereabouts or  address  being
      known to the employer, the employer is not subject  to  section  2  of
      this chapter until:

           (1) ten (10) days have elapsed after the  employee  has  made  a
           demand for the wages due the employee; or

           (2) the employee has furnished the employer with the  employee’s
           address where the wages may be sent or forwarded.


Ind. Code § 22-2-5-1.  If an employer fails to  make  payment  of  wages  in
accordance with this section, then the employer:
      [A]s liquidated damages for such failure, [shall] pay to such employee
      for each day that the amount due to him  remains  unpaid  ten  percent
      (10%) of the amount due to him  in  addition  thereto,  not  exceeding
      double the amount of wages due, and said damages may be  recovered  in
      any court having jurisdiction of a suit to recover the amount  due  to
      such employee, and in any suit so brought to recover said wages or the
      liquidated damages for nonpayment thereof, or both,  the  court  shall
      tax and assess as  costs  in  said  case  a  reasonable  fee  for  the
      plaintiff’s attorney or attorneys.

I.C. § 22-2-5-2.

      There is  no  dispute  that  the  Wage  Payment  Statute  governs  the
frequency with which an employer must pay its employee.  However, a line  of
authority on this point takes the position that the statute  addresses  only
the frequency and not the amount an employer must pay.  See  Ind.  Dep’t  of
Labor v. Richard, 732 N.E.2d 810, 813 (Ind. Ct. App. 2000),  trans.  denied;
Haxton v. McClure Oil Corp., 697 N.E.2d 1277, 1281  (Ind.  Ct.  App.  1998);
Huff v. Biomet, Inc., 654 N.E.2d 830, 835 (Ind. Ct. App. 1995).   This  view
was first expressed in Hendershot v. Carey, 616 N.E.2d 412  (Ind.  Ct.  App.
1993).  That case involved a  class  action  lawsuit  against  the  City  of
Muncie by municipal employees.  Among other things, the employees  contended
that the City wrongfully withheld their  wages  in  violation  of  the  Wage
Payment  Statute  when  more  than  two  weeks  elapsed  before  it   issued
paychecks.  The court observed that in order  to  place  liability  upon  an
employer for failure to  issue  paychecks  at  least  every  two  weeks,  an
employee  must  first  submit  a  request  to  that  effect.   Because  some
employees apparently accepted the City’s offer to go four weeks rather  than
two before receiving a paycheck, the court held that those  employees  could
not  now  charge  the  City  with  responsibility  that  the  employees  had
undertaken.  Without elaboration the court went on to say that  it  was  not
relevant that the amount of the checks was in dispute because  “the  statute
addresses the frequency with which an employer must pay its  employees,  not
the amount that it must pay.”  Id. at  415.   Subsequent  Court  of  Appeals
opinions have cited Hendershot for the quoted proposition.
      There is another  line  of  authority  awarding  employees  liquidated
damages and attorney fees  where  the  claim  involves  the  failure  of  an
employer to pay the amount of wages  when  due.   However,  in  those  cases
there is no discussion about the tension between  frequency  versus  amount.
See, e.g., Sallee v. Mason, 714  N.E.2d  757,  764  (Ind.  Ct.  App.  1999),
trans. denied; Valadez v. R.T. Enterprises, Inc., 647 N.E.2d 331, 333  (Ind.
Ct. App. 1995); Gurnik v. Lee, 587 N.E.2d 706, 710  (Ind.  Ct.  App.  1992);
Baesler’s Super-Valu v. Ind. Comm’r of Labor  ex  rel.  Bender,  500  N.E.2d
243, 249 (Ind. Ct. App. 1986).
      Our reading of the  statute  compels  the  conclusion  that  the  Wage
Payment Statute governs both the frequency and amount an employer  must  pay
its employee.[3]  The first step in interpreting any Indiana statute  is  to
determine whether the legislature has spoken clearly  and  unambiguously  on
the  point  in  question.   Rheem  Mf’g  Co.  v.  Phelps   Heating   &   Air
Conditioning, Inc., 746 N.E.2d 941, 947 (Ind.  2001).   When  a  statute  is
clear and unambiguous, we need not apply any  rules  of  construction  other
than to require that words and phrases be taken in  their  plain,  ordinary,
and usual sense.  Id.  Clear and unambiguous  statutory  meaning  leaves  no
room for judicial construction.  Id.
      Indiana Code section 22-2-5-1 provides that  an  employer  “shall  pay
each employee at least semimonthly or biweekly,  if  requested,  the  amount
due the employee.”  I.C.  §  22-2-5-1(a)  (emphasis  added).   This  section
later provides that “[p]ayment shall be made for all wages earned to a  date
not more than ten (10) days prior to the date of  payment.”   Id.  (emphasis
added).   If  an  employee  voluntarily  leaves  employment,   the   section
continues, then “the employer shall not be required to pay the  employee  an
amount due the employee until the next usual and regular day for payment  of
wages . . . .”  I.C. § 22-2-5-1(b)  (emphasis  added).   In  our  view,  the
plain, ordinary, and usual meaning of the phrases “all  wages”  and  “amount
due” unambiguously  establishes  that  the  legislature  intended  the  Wage
Payment Statute to govern not only the frequency  but  also  the  amount  an
employer must pay its employee.  To conclude otherwise would be to read  out
of the statute that which clearly exists.[4]
      Another  familiar  canon  of  statutory  construction  supports   this
conclusion as well: statutes are to be construed so as  not  to  produce  an
absurdity.  Civil Rights Comm’n v. County Line Park, Inc., 738 N.E.2d  1044,
1048 (Ind. 2000).  If we interpreted the statute as  St.  Vincent  suggests,
namely:  that the Wage Payment Statute governs only the frequency,  then  an
employer could avoid  the  penalty  provisions  of  the  statute  by  simply
tendering $1.00 biweekly or semimonthly regardless of the  amount  of  wages
agreed to by the parties.   Likewise,  if  the  statute  governed  only  the
amount of wages due, then an employer could avoid the penalty provisions  of
the statute by tendering the entire wage agreed to by  the  parties  on  the
last day of the year.  The legislature surely did not intend either  result.
 That the statute governs both the  frequency  and  amount  recognizes  that
these two concepts are inextricably  intertwined  and  cannot  logically  be
separated under the text of the statute.
                                     II.
                           The Wage Claims Statute
      Our  conclusion  that  the  Wage  Payment  Statute  governs  both  the
frequency and amount an employer must pay its employee does not resolve  the
dispute between the parties before us.  This is so because another  statute,
which we will refer to as the “Wage Claims Statute,” also concerns  disputes
over the amount of wages due and provides for  the  recovery  of  liquidated
damages and attorney fees.  According to St. Vincent, there  is  a  lack  of
clarity regarding when a claimant  should  proceed  under  the  Wage  Claims
Statute as opposed to the Wage Payment Statute.  St. Vincent argues that  in
any event Dr. Steele should have proceeded under the former.
      The Wage Claims Statute provides in relevant part:


      In case of a dispute over wages, the employer shall give notice to the
      employee of the amount of wages which he concedes to be due, and shall
      pay such amount, without condition, within  the  time  fixed  by  this
      chapter, but the acceptance by the employee of any payment made  under
      this chapter shall not constitute a release as to any balance  of  his
      claim.

I.C. § 22-2-9-3.  Claimants who proceed under this statute may  not  file  a
complaint with the trial court.  Rather, the wage claim is submitted to  the
Indiana Department of Labor. It then becomes “the duty of  the  commissioner
of labor to enforce and to insure compliance with  the  provisions  of  this
chapter, to investigate any violations of any  of  the  provisions  of  this
chapter, and to institute or cause to be instituted  actions  for  penalties
and forfeitures provided under this chapter.”  I.C. § 22-2-9-4(a).  To  that
end, the commissioner “may hold  hearings  to  satisfy  himself  as  to  the
justice of any claim, and he  shall  cooperate  with  any  employee  in  the
enforcement of any claim against his employer in any case whenever,  in  his
opinion, the claim is just and valid.”  Id.  Further, the  commissioner  may
take assignments of wage claims under $800 and  refer  wage  claims  to  the
Attorney General, who may then initiate a civil  action  on  behalf  of  the
wage claimant or refer the wage claim to a private attorney.  I.C. §§  22-2-
9-4(b), -5.  Claimants whose lawsuits have been initiated  by  the  Attorney
General  or  the  Attorney  General’s  designee  are  entitled  to   recover
liquidated damages and attorney fees as set forth in  Indiana  Code  section
22-2-5-2.  I.C. § 22-2-9-4(b).
      Although both the Wage Claims Statute and  the  Wage  Payment  Statute
set forth two  different  procedural  frameworks  for  wage  disputes,  each
statute applies to different  categories  of  claimants.   The  Wage  Claims
Statute references employees who have been  separated  from  work  by  their
employer and employees whose work has been  suspended  as  a  result  of  an
industrial dispute.  I.C. § 22-2-9-2(a)-(b).  By contrast, the Wage  Payment
Statute references current employees and those  who  have  voluntarily  left
employment,  either  permanently  or  temporarily.   I.C.   §   22-2-5-1(b).
Because Dr. Steele was a current employee of St. Vincent at the time of  the
wage dispute, he proceeded correctly under the Wage Payment Statute.
                                    III.
                           Appellate Attorney Fees
      While this case was pending on transfer, Dr. Steele filed  a  petition
requesting appellate attorney fees.  St. Vincent did not file  a  memorandum
in response.  In any event, the request is based on the  same  provision  of
the Wage Payment Statute that provided the basis for attorney  fees  awarded
by the trial court.  See I.C. § 22-2-5-2 (“[T]he court shall tax and  assess
as costs in said case a reasonable  fee  for  the  plaintiff’s  attorney  or
attorneys.”).  This statute does not expressly address  whether  the  quoted
provision includes appellate attorney fees.  However, the Court  of  Appeals
has held that it does  include  them.   See  Valadez,  647  N.E.2d  at  333;
Johnson v. Wiley, 613 N.E.2d 446, 451  (Ind.  Ct.  App.  1993);  Vazquez  v.
Dulios, 505 N.E.2d 152, 154-55 (Ind. Ct. App. 1987). When first so  holding,
the Court of Appeals relied on this Court’s  opinion  in  Templeton  v.  Sam
Klain & Son, Inc., 425 N.E.2d 89 (Ind. 1981).  See Vazquez,  505  N.E.2d  at
154-55.  In Templeton, we determined that a lien  enforcement  statute  that
provided  for  the  recovery  of  “reasonable  attorney’s   fees”   included
appellate  attorney  fees  because  otherwise  a  reasonable  fee  for   the
prosecution of the claim alone would not  be  a  reasonable  fee  for  those
services plus the costs of defending the  judgment  on  appeal.   Templeton,
425 N.E.2d at 95.  Thus, we agree with the Court of Appeals’  resolution  of
this issue –  appellate  attorney  fees  are  included  under  Indiana  Code
section 22-2-5-2.  We therefore remand this cause to the  trial  court  with
instructions  to  conduct  a  hearing  to  determine  the  amount,  and  the
reasonableness, of appellate attorney fees in this case.
                                 Conclusion
      We affirm the judgment of the trial court.

SULLIVAN, J., concurs.

SHEPARD, C.J., concurs with separate opinion.

BOEHM, J., concurs with separate opinion.

DICKSON, J., concurs in result.
ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

N. Kent Smith                           Lorie A. Brown
Letha S. Kramer                   Indianapolis, Indiana
Indianapolis, Indiana
                                        Kenneth E. Lauter
                                        Ryan C. Fox
                                        Indianapolis, Indiana

                                       ATTORNEYS FOR AMICUS CURIAE
                                        COMMISSIONER OF INDIANA
                                        DEPARTMENT OF LABOR

                                        Steve Carter
                                        Attorney General of Indiana

                                        Jon Laramore
                                        Deputy Attorney General
                                        Indianapolis, Indiana

                                        Nancy J. Guyott
                                        J.T. Whitehead
                                        Indiana Department of Labor
                                        Indianapolis, Indiana

                                        ATTORNEYS FOR AMICUS CURIAE
                                        INDIANA STATE BUILDING &
                                        CONSTRUCTION TRADES COUNCIL

                                        William R Groth
                                        Geofrey S. Lohman
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



ST. VINCENT HOSPITAL AND                )
HEALTH CARE CENTER, INC.,         )
                                        ) No. 34S02-0107-CV-329
      Appellant (Defendant Below),      )  in the Supreme Court
                                        )
            v.                          )
                                        ) No. 34A02-0005-CV-294
ROBERT J. STEELE, M.D.,                 )  in the Court of Appeals
                                        )
      Appellee (Plaintiff Below). )








                    APPEAL FROM THE HOWARD CIRCUIT COURT
                      The Honorable Lynn Murray, Judge
                         Cause No. 34C01-9812-CP-951



                               April 22, 2002


SHEPARD, Chief Justice, concurring.


      I write separately to observe that the reason treble  damages  can  be
imposed  on  the  employer  in  this  case  is  that  the  court  ultimately
determined that the employer’s grounds for  reducing  its  payments  to  the
employee were legally unavailing.  Thus, the holding of this  case  is  that
the full amount of the employee’s earnings were the “amount due  him”  under
the statute.  Had the employer’s grounds  for  withholding  a  part  of  the
employee’s wages been upheld, then the employer would have already paid  the
full “amount due” and treble damages would not be available.


ATTORNEYS FOR APPELLANT

N. Kent Smith
Letha S. Kramer
Indianapolis, Indiana






























ATTORNEYS FOR APPELLEE

Lorie A. Brown
Indianapolis, Indiana

Kenneth E. Lauter
Ryan C. Fox
Indianapolis, Indiana

ATTORNEYS FOR AMICUS
CURIAE COMMISSIONER OF
INDIANA DEPARTMENT OF
LABOR

Steve Carter
Attorney General of Indiana

Jon Laramore
Deputy Attorney General
Indianapolis, Indiana

Nancy J. Guyott
J.T. Whitehead
Indiana Department of Labor
Indianapolis, Indiana

ATTORNEYS FOR AMICUS
CURIAE INDIANA STATE
BUILDING & CONSTRUCTION
TRADES COUNSEL

William R. Groth
Geoffrey S. Lohman
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

ST. VINCENT HOSPITAL and          )
HEALTH CARE CENTER, INC.,         )
                                  )
      Appellant (Defendant Below), )    Indiana Supreme Court
                                  )     Cause No. 34S02-0107-CV-329
            v.                    )
                                  )     Indiana Court of Appeals
ROBERT J. STEELE, M.D.,           )     Cause No. 34A02-0005-CV-294
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                    APPEAL FROM THE HOWARD CIRCUIT COURT
                      The Honorable Lynn Murray, Judge
                         Cause No. 34C01-9812-CP-951
__________________________________________________________________


                           ON PETITION TO TRANSFER

__________________________________________________________________



                               April 22, 2002

BOEHM, Justice, concurring.
      I concur in the majority opinion.  I write separately to observe  that
the facts of this case dramatize the point that the statute confers  on  all
employees the right to  recover  treble  damages  and  attorney’s  fees  for
failure to pay wages, regardless of the employees’ circumstances.   This  is
perfectly understandable as applied to the vast majority of workers who  are
dependent  on  their  paychecks  for  their  day-to-day   expenses.    These
employees  need  the  money  currently,  not  at  the  end   of   protracted
litigation, and often do not have the economic staying power to engage in  a
court battle over relatively small amounts.  A statute providing  one  party
with treble damages and attorney’s fees is a very substantial  deterrent  to
an employer’s playing fast and loose with wage obligations.  As  applied  to
claims of most workers this is very understandable legislative policy.   But
the “employee” who earns mid six figures should be able to fend for  himself
or herself, and there seems to me to be no reason  to  tip  the  balance  of
settlement value of any dispute so dramatically against the  employer.   The
statute as written requires that result for all employees.  I  write  simply
to point out what seems to me  to  be  an  unnecessary  and  perhaps  unfair
skewing of the negotiation as applied to highly compensated  executives  and
professionals.

-----------------------
      [1]  See Medicare and  Medicaid  Programs;  Physicians’  Referrals  to
 Health Care Entities With Which They Have Financial Relationships, 63  Fed.
 Reg. 1659, 1680 (proposed Jan.  9,  1998).   The  proposed  regulation  was
 superceded  January  4,  2001,  by  another  regulation  which  allows  the
 compensation at issue here. See Medicare and Medicaid Programs; Physicians’
 Referrals  to  Health  Care  Entities  With  Which  They   Have   Financial
 Relationships, 66 Fed. Reg. 856, 881 (Jan. 4, 2001) (to be codified  at  42
 C.F.R. pt. 411, 424).


      [2]  Before the Court of Appeals, St. Vincent argued  that  it  had  a
good faith basis for withholding a portion  of  Dr.  Steele’s  earned  wages
because of the Stark II legislation and the HFCA  proposed  regulation.  The
Court of Appeals observed that there is no good faith exception to the  Wage
Payment Statute.  St.  Vincent,  742  N.E.2d  at  1035.   On  transfer,  St.
Vincent does not challenge that portion of the Court of  Appeals’  decision,
and we express no opinion on the issue.


      [3]  As written, this statute applies equally  to  highly  compensated
professionals as well as “the vast majority of workers who are dependent  on
their paychecks for their day-to-day expenses.”  Slip op. at 2  (Boehm,  J.,
concurring).  Apparently recognizing that the two groups  do  not  stand  on
equal  footing,  a  number  of  states  have  excluded  certain  classes  of
employees from the application of their wage payment statutes.   See,  e.g.,
D.C. Code Ann.  §  32-1301  (excluding  persons  employed  in  a  bona  fide
executive, administrative, or professional  capacity  from  its  payment  of
wages statute); Md. Code Ann., Labor and Employment § 3-502  (setting  forth
a  different  set  of  rules  in  its   payment   of   wages   statute   for
administrative, executive, or professional employees); Mass. Gen. Laws  Ann.
ch. 149, § 148 (setting forth a different set of rules  in  its  payment  of
wages  statute  for  employees   engaged   in   a   bona   fide   executive,
administrative,  or  professional  capacity);  Miss.  Code  Ann.  §  71-1-35
(excluding individuals employed in a bona  fide  executive,  administrative,
or professional capacity from its payment of wages statute); N.Y. Labor  Law
§ 191 (confining its payment of wages statute to manual workers).

      [4]  Conceding that the plain language of the statute cuts against its
position, St. Vincent argues that the Wage Payment Statute  cannot  possibly
govern the amount an employer must pay  its  employee  because  the  statute
does not establish what that wage is or how it is to be  calculated.   Reply
in Support of Appellant’s Petition to Transfer at 1-2.  However, as long  as
an employer is in compliance with  the  applicable  minimum  wage  laws,  an
employee’s wage is a mutual decision not governed by statute.  See  I.C.  §§
22-2-2-1 to –4.  Therefore, even though the Wage Payment  Statute  does  not
establish what that wage is or how it is to be calculated,  that  fact  does
not affect our conclusion.