THEODORE G. NORDIN, Employee, v. STATE, DEP=T OF AGRICULTURE, SELF-INSURED, Employer/Appellant, and MEDICA/HRI, Intervenor.
WORKERS' COMPENSATION COURT OF APPEALS
FEBRUARY 8, 2000
WAGES - OVERTIME. Substantial evidence supported the compensation judge=s inclusion of overtime hours in the wage calculation where the employee had worked overtime in essentially every pay period during which he worked in the year prior to the injury.
Determined by Wilson, J., Pederson, J., and Wheeler, C.J.
Compensation Judge: Kathleen Nicol Behounek
STEVEN D. WHEELER, Judge
The self-insured employer appeals from the compensation judge's determination that the employee worked regular and frequent overtime throughout the year preceding his admitted work injury on May 4, 1995, and from the consequent inclusion of overtime earnings in the calculation of the employee=s weekly wage. We affirm.
STANDARD OF REVIEW
On appeal, this court must determine whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1(3) (1992). Substantial evidence supports the findings if, in the context of the record as a whole, they "are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Factfindings may not be disturbed, even though this court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Id.
The employee, Theodore G. Nordin, began working for the self-insured employer, the State of Minnesota, Department of Agriculture, as a grain sampler in 1973. His work as a grain sampler was affected by seasonal conditions, and the employee was regularly off work due to seasonal layoffs, during which periods he collected unemployment compensation. (Findings 1-3 [unappealed].)
The employee sustained an admitted work-related injury on May 4, 1995. During the 26-week period preceding this injury, the employee worked from November 2, 1994 through November 18, 1994, was on a seasonal layoff from November 19, 1994 through April 30, 1995, and returned to work on May 1, 1995. The employee was paid at an hourly rate of $14.53 and overtime at $21.80 per hour. (Findings 1, 5 [unappealed].)
The wage records in evidence detailed the daily hours for the employee=s work during the approximately 26 weeks preceding and including the date of injury. These records reveal that the employee reported the following days and hours during this period:
DATE REGULAR LEAVE OVERTIME
HOURS HOURS HOURS
November 2, 1994 8
November 3, 1994 8 2.5
November 7, 1994 8
November 8, 1994 8
November 9, 1994 8
November 10, 1994 8
November 11, 1994 8 (holiday) 8
November 14, 1994 8
November 15, 1994 8 (sick leave)
November 16, 1994 8
November 17, 1994 8
November 18, 1994 3.5 4.5 (vacation)
(Seasonal Layoff 11/19/94 - 4/30/95)
May 1, 1994 8 3.5
May 2, 1994 8 3.5
May 3, 1994 8 2
May 4, 1994 8 2
(Exh. A.) Biweekly payroll summaries for the full year before the date of injury were also in evidence which did not give daily hours. These records reveal that during the first 26 weeks of that period the employee worked during the following biweekly pay periods:
PERIOD ENDING REGULAR LEAVE OVERTIME
HOURS HOURS HOURS
May 17, 1994 40 16 2
May 31, 1994 68 12 16
June 14, 1994 72 8 40.5
June 28, 1994 64 16 9
July 12, 1994 16 2
July 26, 1994 56 8 31.5
August 9, 1994 80 10
August 23, 1994 72 8 15
September 6, 1994 64 16 8
September 20, 1994 80 0.5
October 4, 1994 80 2
October 18, 1994 45 35 5
November 1, 1994 72 8 10
The self-insured employer paid various periods of temporary total and temporary partial disability compensation subsequent to the injury. (Exh. E.) Their payments were based upon a claimed weekly wage of $581.29. In an amended claim petition filed on February 16, 1999, the employee claimed an underpayment of benefits and alleged a weekly wage of $908.72. (Judgment Roll.)
A hearing was held before a compensation judge of the Office of Administrative Hearings on July 8, 1999 to determine, among other things, the employee=s weekly wage. Following the hearing, the judge found the employee had worked regular and frequent overtime in the year prior to the work injury. The judge calculated the employee=s weekly wage at $761.65, determined by dividing the employee=s earnings over the 26 weeks prior to the injury, including overtime pay, by the number of days worked to arrive at a daily wage, and multiplying the daily wage by five pursuant to Minn. Stat. ' 176.011, subds. 3 and 18. The self-insured employer appeals from the finding that overtime was regular and frequent and the consequent inclusion of overtime earnings in the wage calculation.
The self-insured employer does not generally disagree with the applicability to this case of the calculation method prescribed pursuant to Minn. Stat. '176.011, subd. 3, but argues that the judge erred in finding that overtime was regular and frequent throughout the year such as to render overtime earnings includable in the wage calculation. We disagree, and affirm. We note that although the employee did not work overtime every day he worked, and although the amount of overtime worked did vary from pay period to pay period, it is clear that the employee worked overtime in every pay period he worked, with the sole exception of a three-day period immediately prior to the November 1994 seasonal layoff. The judge=s finding that the employee worked overtime on a regular and frequent basis during the year preceding the injury was a reasonable factual determination, given the time records in evidence.
The self-insured employer next argues that even if overtime was regular and frequent, the inclusion of overtime hours in the wage calculation unfairly exaggerates the earning capacity of a seasonal worker. We note, however, that this court considered the same argument in Palkowski v. Lakehead Constructors, 51 W.C.D. 21 (W.C.C.A. 1997), summarily aff=d July 14, 1997. In Palkowski, we affirmed the application of the statutory calculations, and the inclusion of overtime hours in the case of a seasonal worker, stating:
Although the wage calculation required in this case results in an imputed yearly earning potential significantly higher than the employee=s actual annual earnings, it is transparently obvious that application of the statutory formula to a seasonal worker will always produce an imputed wage greater than the employee=s actual earnings. Moreover, although the disparity between the employee=s actual earnings and the value of the imputed weekly wage is magnified by the inclusion of overtime in this case, the result appears to be precisely that contemplated by the statute. . . The question of whether the result is reasonable and fair is a question not for this court, but one best directed to the legislature.
57 W.C.D. at 27. Based on our holding in Palkowski, there is no basis on which to reverse and impose a result contrary to that prescribed by statute.
 Subdivision 3 provides, in pertinent part, that
[I]f the amount of the daily wage received or to be received by the employee in the employment engaged in at the time of injury was irregular or difficult to determine, or if the employment was part time, the daily wage shall be computed by dividing the total amount the employee actually earned in such employment in the last 26 weeks, by the total number of days in which the employee actually performed any of the duties of such employment, provided further, that in the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions, the weekly wage shall not be less than five times the daily wage.
Pursuant to subdivision 18,
[o]ccasional overtime is not to be considered in computing the weekly wage, but if overtime is regular and frequent throughout the year it shall be taken into consideration.
 The self-insured employer also argues in its brief that the employee had no entitlement to temporary partial disability compensation, asserting that the employee failed to show a loss of earning capacity. We note, however, that at the hearing below, the issue presented was one of underpayment of benefits rather than of entitlement to benefits, and the employer=s position was that temporary partial disability compensation had been properly paid based on a $581.20 weekly wage figure. The employer did not assert at the hearing that the employee had no entitlement to the temporary partial disability compensation the employer had paid, only that there had been no underpayment. (See T. 13-17, 21, 29-32.) This court is a court of appellate review and has no jurisdiction to consider issues which were not raised or litigated below.