MICHAEL D. HARRIS, Employee, v. JIMMY JINGLE and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, and ABBOTT NORTHWESTERN HOSP., UNITED HEALTHCARE, and HEALTHPARTNERS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 1, 2006
File No. WC06-137
WAGES - IRREGULAR. Where the employee was under contract to be paid a base salary each week plus sales commissions and to have use of a company vehicle, where the employee had received extra pay for an extra project for the employer that he had been working on for ten months prior to his 1999 work injury, and where the employer=s managing partner had acknowledged in testimony that the employee=s earnings were irregular, the compensation judge=s conclusion that the employee=s wages were irregular was not clearly erroneous and unsupported by substantial evidence, and, in calculating the employee=s average weekly wage over the twenty-six weeks prior to his injury, the judge properly divided the employee=s total earnings by only the twenty-four weeks that he was not on vacation, pursuant to Fougner v. Boise Cascade Corp., 460 N.W.2d 1, 43 W.C.D. 281 (Minn. 1990).
WAGES - OVERTIME. Where the employee had asked for and begun receiving in December 1998 extra pay for an extra project for the employer that he had commenced in September 1998, and where he had testified that he had regularly and frequently worked as many extra hours for the employer on that project during the 26-week period preceding his July 1999 work injury as he had worked on that project for several months prior to that 26-week period, the compensation judge=s imputation of the employee=s average weekly wage at the time of injury from the amount paid to the employee during the 26-week pre-injury period, including the extra pay for the extra project, was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee=s extra pay during that period was arguably for work commenced prior thereto, and notwithstanding the fact that the employee was a salary/commission-based employee and therefore not normally subject to overtime wages.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge:Carol A. Eckersen
Attorneys: Steven T. Scharfenberg, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants. Thomas D. Mottaz and David B. Kempston, Anoka, MN, for the Respondent.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge=s calculation of the employee=s weekly wage. We affirm.
Michael Harris [the employee] began working for Jimmy Jingle, Inc. [the employer] in 1974. He started as a route driver, advanced in the company to several other positions, and eventually obtained a job as a sales manager. The employer provided a full line of vending machines, coffee service, and water cooler rental to customers in the Twin Cities metropolitan area. As a sales manager, the employee was responsible for the sale of vending installation agreements and for providing the customer service necessary for the employer=s accounts.
On July 26, 1999, the employee sustained an injury to his low back in the course of his work for the employer. The employer and its workers= compensation insurer accepted liability for the employee=s injury and paid compensation to the employee based upon a weekly wage of $916.31. The employee subsequently underwent six surgeries for his low back condition, and the parties later agreed that the employee had become permanently and totally disabled as of July 28, 2003. In 2004, however, the employer and insurer alleged that the employee=s weekly wage had been computed incorrectly and that certain payments for Aovertime hours@in 1999 should not have been included in the weekly wage calculations. Consequently, the employer and insurer claimed that they had overpaid the employee for his wage loss and that they were entitled to a credit against future compensation. The employee, on the other hand, believed that his benefits had been underpaid.
According to a written agreement between the employer and the employee titled ASales Manager Bonus Incentive Program,@ the employee=s base pay in 1999 was $600.00 per week. Under that agreement, the employee was to be paid certain placement and incentive bonuses based upon the type of machines that he placed, their gross sales, and other factors. And he was authorized use of a company car for company work and for commuting to and from work. The agreement is silent on the subject of overtime.
In the 26-week period prior to his injury, the employee received his base pay each week, including two weeks in which he was away from work and on vacation. Under the written agreement, Dean Johnson, one of the employer=s managing partners, was responsible for calculating the employee=s incentive bonuses, which he would do at the end of each month, based on the employee=s work the previous month. Twice a year, Mr. Johnson would recalculate the employee=s average monthly sales for the first half and the second half of the year and adjust for seasonal sales. According to a AWage Calculation Chart@prepared by the employee, accepted by the compensation judge, and uncontested by the employer and insurer, the employee was paid sales bonuses of $5,014.00 during the 26-week period preceding his injury, in checks ranging from $181.00 to $3,226.00. As to the company vehicle, the employer issued a W-2 form for 1999 reflecting a value of $672.00 for the employee=s 1999 commuting fringe benefit.
One of the largest of the employer=s clients assigned to the employee was Brown Institute [Brown]. At some point during 1998, Brown moved to a new facility and wanted the employer to expand its service beyond vending machines to providing a lunch counter/cafeteria. In about September of 1998, the employee advised the managing partners of Brown=s request and expressed some concern that, if a competitor were to provide the cafeteria service instead, the vending machine account would likely also be awarded to the competitor. The partners agreed to the cafeteria project and placed the employee in charge of getting it up and running.
Once it was up and running, the employee assumed responsibility for operating the Brown cafeteria in addition to maintaining his usual sales duties and keeping up with customers. In December 1998, he approached the managing partners of the employer and requested that he be paid extra for the extra work that he was doing at Brown. Although the employee had no record of any actual overtime hours, the employer made an initial payment of $500.00 toward the request on December 4, 1998. This payment was entered as ASupp. Income@on a ledger titled AMike Harris - OT Adjustment,@ which begins with a balance due of $3,957.53, the $500.00 payment resulting in a balance due of $3,457.33. Thereafter the employee was paid monthly out of what is identified on the ledger as being drawn from the ANet Profit@evidently of Brown cafeteria. An additional debt of $4,635.00 for A206 OT hrs@is acknowledged at February 24, 1999, on the ledger. Beginning on February 26, 1999, payments of ANet Profit@continue to be applied against the combined balance due, until that balance reaches $0.00 after a $643.11 payment on July 30, 1999.
The issue of the employee=s weekly wage was heard by a compensation judge on December 16, 2005. Subissues of the weekly wage question were (1) whether the employee=s earnings were irregular or difficult to determine, (2) whether the earnings from Brown should be included in the weekly wage calculations, and (3) the value of the employee=s use of a company vehicle. Evidence submitted at trial included the live testimony of the employee, the deposition testimony of Dean Johnson, and various wage records.
The employee testified that, as a sales manager, he normally worked five days a week, eight hours a day, generating sales and servicing customers. He testified that, when the Brown cafeteria was added to his duties in September 1998, his hours changed, and he put in ten to fifteen hours each week over and above his usual forty-hour week. He testified that he regularly put in these additional hours from September 1998 until his injury on July 26, 1999. The employee testified also that he was unaware of the employer=s AOT Adjustment@ledger until just prior to trial. He stated that he never presented the employer with any specific request for a sum certain or any verification of the number of hours that he had worked. He testified that Mr. Johnson never asked him to provide the employer with the number of hours that he was working. He said that he viewed his compensation for the work at Brown as being similar to his commissions on sales, as if he were receiving Asupplemental pay@for extra work in starting up a new line of business. He testified that he understood his compensation to be based on a formula devised by Mr. Johnson to pay him based on the profit from the Brown operation and not on any set number of hours. The employee testified that when he was given the Brown assignment he was not told that his related duties were temporary or that his responsibility for overseeing the project would end at some given date.
In his deposition, Mr. Johnson testified that various formulas were used in calculating the employee=s sales bonuses, depending on the type of machines sold, their productivity, and other factors. As such, the employee=s sales bonuses varied from month to month. With regard to the Brown project, Mr. Johnson testified that, in December of 1998, the employee advised the partners that he expected to be paid time and a half for his overtime. Mr. Johnson stated that he could not remember whether the employee presented the number of hours or the gross amount, but he testified that the initial overtime amount calculated out to be $3,957.53, for 198 hours of work. Mr. Johnson testified that he had badgered the employee to give him some documentation as to his hours but that none was received. He agreed that the employee was Acompany minded@and deserved to be paid for the start-up time on the Brown project, but after February 24, 1999, he concluded, the employee didn=t need to put in all those hours and time. He testified that the employee had trained a person capable of managing the operation, who could have taken over after that date.
In a Findings and Order issued February 14, 2006, the compensation judge determined that A[t]he employee=s earnings were irregular and difficult to determine,@that the employee Aregularly and frequently worked overtime at Brown Institute during the 26-week period prior to his date of injury,@that he Awas paid $4,111.04 for net profit or overtime from February 1999 through June 1999" (underscorings added), and that his Aaverage weekly earnings from the Brown Institute work were $171.29.@ In her memorandum, the judge explained that she Afinds that the payments made to the employee for the 26-week period prior to the date of injury are the most accurate reflection of [the employee=s] earning capacity at the Brown Institute lunch counter.@ The judge found the employee=s weekly wage to be $1,076.71, representing a weekly base wage of $650.00, sales bonuses of $208.92, the Brown earnings of $171.29, and the value of the use of the company car at $46.50. The employer and insurer appeal from the judge=s calculation of the employee=s base wage and the inclusion of the earnings at Brown.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (2004). Substantial evidence supports the findings if, in the context of the entire record, "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 evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
In resolving the issue of the employee=s weekly wage, the compensation judge first determined that the employee=s earnings were Airregular@and that the 26-week statutory averaging formula was applicable in calculating his weekly wage. See Minn. Stat. ' 176.011, subd. 3. She then determined that, because he took two weeks vacation during the averaging period, the employee actually performed duties of his employment only during twenty-four of the twenty-six weeks preceding his injury. Therefore, when dividing the total amount the employee actually earned in the twenty-six week period by twenty-four weeks, the formula altered the employee=s base wage from $600.00 to $650.00 per week. Cf. Fougner v. Boise Cascade Corp., 460 N.W.2d 1, 43 W.C.D. 281 (Minn. 1990). The employer and insurer contend that the judge erred in finding a base salary of $650.00 per week by applying the anomalous result in Fougner to the facts in this case.
The employer and insurer initially contend that the anomalous finding of the compensation judge runs contrary to the guiding principle of wage determination, that its object is to Aarrive at a fair approximation of [the employee=s] probable future earning power which has been impaired or destroyed because of the injury.@ Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985), quoting Sawczuk v. Special School Dist. No. 1, 312 N.W.2d 435, 34 W.C.D. 282 (Minn. 1981). Here, they argue, the employee=s basic employment contract was the Sales Manager Bonus Incentive Program. Under this contract, they argue, the employee=s earnings did not vary from week to week and his agreed-upon salary was $600.00 per week, not $650.00. Applying the Fougner rationale to the facts of this case, they assert, unfairly exaggerates the employee=s base pay, contrary to the written contract and contrary to the guiding principle of wage determination. We are not persuaded.
The employer and insurer=s argument narrowly focuses on the portion of the employment contract referring to the employee=s base pay. Neither the statute nor the remainder of the employment agreement, however, are so narrowly focused. It is undisputed that during the twenty-six-week period in question the employee=s earnings were not simply limited to his base salary. At Finding 3, the judge noted that the employer calculated the employee=s commissions monthly and then recalculated and adjusted the commissions every six months. Mr. Johnson, the managing partner who performed the calculations, agreed that the employee=s bonuses or commissions varied and were irregular. The employee=s commission bonus checks ranged from $181.00 to $3,226.00 during the period at issue. The employee=s weekly wage by necessity included sales commissions that were irregular and could not be determined on a weekly basis without reference to the statutory formula. The documentary evidence and the testimony of the employee and Mr. Johnson all constitute substantial evidence in support of the judge=s finding that the employee=s earnings were irregular, and that finding is affirmed.
Given the judge=s proper conclusion that the employee=s daily wage was irregular at the time of his injury, the judge quite properly applied the statute and the supreme court=s rationale in Fougner. In that case, the court wrote as follows:
The employer has asked this court to rule . . . that if vacation and holiday pay are to be included, then the corresponding number of vacation days and holidays taken should also be included in the wage basis calculation; but that would appear to be contrary to the plain language of the statute. Although including vacation and holiday pay without also including the corresponding vacation days and holidays in the calculation seems to be anomaly, that is a question more properly addressed by the legislature.
Fougner, 460 N.W.2d at 2 n.1, 43 W.C.D. at 288 n.1. The judge=s wage calculation, consistent with Fougner, is affirmed.
At Finding 4, the compensation judge determined that A[t]he employee worked a substantial amount of overtime starting in September 1998 to set up, hire and train employees and operate the lunch counter. Mr. Harris regularly and frequently worked overtime at Brown Institute during the 26 week period prior to his date of injury.@ The judge then concluded, at Finding 6, that the work that the employee did at Brown during the 26-week period prior to his injury resulted in overtime earnings that are properly included in his weekly wage to accurately reflect his earning capacity on the date of injury. The judge determined that A[t]he employee was paid $4,111.04 for net profit or overtime from February 1999 through June 1999" and that this figure most accurately reflected the employee=s total earning capacity at the Brown lunch counter. She then divided this figure by the twenty-four weeks worked by the employee and arrived at the figure of $171.29.
The employer and insurer argue that the judge erred in including the employee=s Brown compensation as part of his weekly wage. They contend that the employee was a salaried employee, not an hourly one, and that therefore he did not qualify for overtime. Further, they argue, there was no evidence submitted that overtime was Aregular or frequent throughout the year,@ as is required by Minnesota Statutes ' 176.011, subdivision 18. The employee testified that prior to setting up the lunch counter at Brown he worked an eight-hour day. They argue that the additional time spent at Brown was a one-time project that did not extend beyond February 24, 1999. By that date, they argue, a full-time manager had been hired to run the cafeteria, and additional hours were not required of the employee. Therefore, they argue, not only was overtime not regular and frequent but the majority of the employee=s work occurred before the 26-week period before the date of injury. They contend that Mr. Johnson repeatedly asked for documentation of the overtime but that it was never supplied by the employee. Without such documentation, they contend, it is difficult to tell during what period of time the overtime was actually earned and if the employee was working overtime every week. Under the facts of this case, they argue, the inclusion of the employee=s earnings at Brown exaggerates the employee=s earning capacity. We are not persuaded.
We acknowledge that the evidence offered at the hearing is subject to differing interpretations, but we cannot conclude that the compensation judge=s analysis of the facts or her conclusions are unsupported by substantial evidence. While the employee did not offer documentary evidence of regular and frequent overtime, there was conflicting evidence as to why such evidence was not offered, and the employee did testify that he worked an additional ten to fifteen hours each week related to the Brown project. He testified further that he consistently worked these additional hours from September 1998 to July 26, 1999. The employer did not dispute this testimony for the period through February 24, 1999, but did dispute the regularity and frequency of the employee=s extra hours through the employee=s date of injury. At Finding 4, the compensation judge found that the employee regularly and frequently worked overtime at Brown during the 26-week period prior to his date of injury. The judge=s finding was a reasonable factual determination, based upon the employee=s credible testimony. In her memorandum, the judge noted that the employer=s balance sheet reflected ongoing payments to the employee directed at retiring an overtime balance incurred prior to February 24, 1999. She noted also, however, that payments to the employee also reflected calculations based on net profits during the 26-week period. Given her reasonable finding of the employee=s regular and frequent overtime, it was not unreasonable for the judge to conclude that payments made to the employee for the 26-week period prior to the date of injury Aare the most accurate reflection of [the employee=s] earning capacity at the Brown Institute lunch counter.@ Even if those earnings were attributable to a time period prior to the 26-week averaging period, it was not unreasonable for the judge to impute an earning capacity to the employee based on that evidence. Whether the earnings from Brown were viewed as overtime or supplemental pay in the form of a commission, the judge reasonably concluded that such payments were necessarily included to reflect the employee=s earning capacity. As this court has stated on a number of occasions, where the evidence necessary to comply with the statutory wage calculation directives is not available, the compensation judge may use another method of calculating the employee=s weekly wage, so long as it fairly represents the employee=s injury-related loss of earning capacity. Hansford v. Berger Transfer, 46 W.C.D. 303, 309-10 (W.C.C.A 1991); Decker v. Red Wing Shoe Co., 41 W.C.D. 763 (W.C.C.A. 1988).
Concluding that it is supported by substantial evidence, we affirm it its entirety the compensation judge=s finding of the employee=s weekly wage as a fair approximation of the employee=s date-of-injury earning capacity. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 Identified in the record as Exhibit #3 to the deposition of Dean Johnson, which is Petitioner=s Exhibit I in the record of evidence at hearing.
 The Wage Calculation Chart is identified in the record as Petitioner=s Exhibit C.
 Identified in the record as Respondent=s Exhibit #4 and Exhibit #5 to the deposition of Mr. Johnson, which is Petitioner=s Exhibit I in the record of evidence at hearing.
 Minnesota Statutes ' 176.011, subdivision 3 (1999), concerning daily wage, provides as follows:
Subd. 3. Daily wage. ADaily wage@means the daily wage of the employee in the employment engaged in at the time of injury but does not include tips and gratuities paid directly to an employee by a customer of the employer and not accounted for by the employee to the employer. If 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.
 Minnesota Statutes ' 176.011, subdivision 3, the daily wage provision in the statute, was amended in the 2000 legislative session in such a way as to support the employer=s argument with respect to calculating the employee=s wage. However, that amendment applies only for dates of injury on or after October 1, 2000. Act of Apr. 25, 2000, ch. 447, '' 1 and 29, 2000 Minn. Laws 1042, 1061.