JAMES J. TOURVILLE, Employee/Appellant, v. TNT FLOOR SANDING, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS CO., Employer-Insurer/Cross-Appellants, and RIDGEVIEW MED. CTR., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 6, 2011
WAGES - CONSTRUCTION INDUSTRY. Where the employee’s daily wage was undisputed and there was also no argument, on appeal, that the employee’s work did not qualify as construction for purposes of applying the statutory formula applicable to construction workers, the compensation judge did not err by calculating the employee’s weekly wage by multiplying the employee’s daily wage by five.
TEMPORARY TOTAL DISABILITY - RECOMMENCEMENT. The employee was entitled to recommencement of temporary total disability benefits when he became medically unable to work, even though he was not actively working at the time, where he had not yet reached maximum medical improvement.
Affirmed in part, reversed in part, and remanded.
Determined by: Wilson, J., Pederson, J., and Milun, C.J.
Compensation Judge: Kathleen Behounek
Attorneys: Steven P. Christensen, Roseville, MN, for the Appellant. Elizabeth Chambers-Brown, Brown & Carlson, Minneapolis, MN, for the Cross-Appellants.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s finding that the employee was not entitled to recommencement of temporary total disability benefits. The employer and insurer appeal from the judge’s finding as to weekly wage. We affirm in part, reverse in part, and remand the matter to the compensation judge for further proceedings consistent with this decision.
The employee was employed by TNT Floor Sanding [the employer] on September 12, 2009, working what was to be a one-day job, laying out a wood floor in a home. The employee was to be paid $15 an hour for what the employee assumed would be a twelve- to thirteen-hour day. The employee sustained an admitted injury to his left hand after about four hours of work. The employer paid the employee $200 for his work that day.
Dr. Andrew Staiger performed surgery on the employee’s left hand on September 18, 2009. On November 3, 2009, Dr. Staiger noted that the employee had dense scar tissue in the area of his injury and that he required continued physical therapy, including ultrasound and range of motion exercises. The doctor also performed a corticosteroid injection on that date but noted that, “at this point, [the employee] should be able to return to work without restrictions.” The employee did not return to work, but he collected unemployment benefits, which he had also been receiving prior to his September 12, 2009, injury. The employer and insurer paid temporary total disability benefits from September 13, 2009, through November 9, 2009, at the rate of $133.33 per week.
The employee received ongoing physical therapy from November 3, 2009, through January 4, 2010. Dr. Staiger subsequently performed additional surgeries on the employee’s left hand on January 25, 2010, and February 4, 2010. On March 19, 2010, the employee asked Dr. Staiger to release him to work without restrictions. Dr. Staiger agreed to do so but informed the employee that “he needs to be careful with heavy grasping over the next 6 weeks.” The employee apparently returned to work with a new employer on April 13, 2010.
On October 15, 2009, the employee filed a claim petition alleging an average weekly wage of $1000 and seeking compensation for an underpayment of temporary total disability benefits. He subsequently amended the claim to include temporary total disability benefits from January 25, 2010, to April 13, 2010. The matter proceeded to hearing, and, in a findings and order filed on March 9, 2011, the compensation judge found that the employee’s imputed weekly wage on the date of injury was $1000, based on a daily wage of $200 multiplied by 5, because the employee worked in the construction industry. The judge agreed that the employee had been underpaid temporary total disability benefits, but she denied the employee’s claim for additional temporary total disability benefits from January 25, 2010, to April 13, 2010. Both parties appeal.
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 (2010). 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 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).
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
1. Weekly Wage
Minn. Stat. § 176.011, subd. 8a, provides 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 of wages, vacation pay, and holiday pay the employee actually earned in such employment in the last 26 weeks, by the total number of days in which such wages, vacation pay, and holiday pay was earned, provided further, that in the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal condition, the weekly wage shall not be less than five times the daily wage.
Emphasis added. The compensation judge found that the employee in this case had a daily wage of $200 and thus a weekly wage of $1000.
The employer and insurer contend that, because the employee had been hired for only one day’s work and had been unemployed for months preceding his work injury, the compensation judge “erroneously used a strict application of the statutory formula” and should instead have considered alternate methods of calculation that would “more reasonably reflect the employee’s post-injury earning capacity.” In support of their position on this point, the employer and insurer cite to the case of Johnson v. D.B. Rosenblatt, 265 Minn. 427, 122 N.W.2d 31, 22 W.C.D. 468 (1963), for its holding that, when an employee has only been employed for a very short period, “the wages the employee could have earned may be gauged by the wages paid to one doing similar work.” Id. at 429, 122 N.W.2d at 33, 22 W.C.D. at 471.
We note initially that the employer and insurer did not argue any “alternative method of calculating average weekly wage” at the time of hearing, except to contend that the employee’s daily wage should be his weekly wage because he was only hired to work the one day. As such, the only choices presented to the judge were a weekly wage of $200 or a weekly wage of $1000.
The employer and insurer cite a number of cases in support of their position that a judge may deviate from the statutory method of wage calculation, claiming that Wright v. Robert Flemal, 48 W.C.D. 551 (W.C.C.A. 1993), is “almost directly on point” and should be controlling. However, while Wright and other cases have allowed a compensation judge to choose an alternative method of wage calculation for construction workers in certain situations, alternative methods have never been mandated.
The statutory provision governing calculation of weekly wage for employees in the construction industry affords a “simple method for computing the wage basis in the construction industry as full-time employment, rather than averaging the wages over one-half the year.” Keklah v. Gebert’s Floor Coverings, 511 N.W. 2d 437, 438, 50 W.C.D. 80, 82 (Minn. 1994), citing Clabo v. Bor-Son Constr. Co., 481 N.W.2d 47, 48, 46 W.C.D. 171, 172 (Minn. 1992). That provision is intended “to factor out the periods of seasonal unemployment and to compensate [employees] as though they were full-time, year round employees.” Koziolek v. Aconite Corp., 49 W.C.D. 498, 500 (W.C.C.A. 1993).
The object of wage determination is to “arrive at a fair approximation of [the employee’s] probable future earning power which has been impaired or destroyed because of the injury.” Bradley v. Vic’s Welding, 405 N.W.2d 243, 245-6, 39 W.C.D. 921, 924 (Minn. 1987). However, this court has affirmed use of the formula even where the resulting imputed wage is greater than the employee’s actual earnings. Palkowski v. Lakehead Constructors, 57 W.C.D. 21 (W.C.C.A. 1997). Because the employee had an admitted daily wage of $200 on the date of his work injury, the information necessary for application of the construction industry weekly wage formula was available. Use of that formula was mandated by the legislature and was intended to factor out periods of reduced work. We therefore affirm the judge’s decision on this issue.
2. Recommencement of Temporary Total Disability Benefits
The employee received temporary total disability benefits from September 13, 2009, through November 9, 2009. His benefits were discontinued as of November 9, 2009, based on a medical release to work without restrictions. On January 25, 2010, before he reached maximum medical improvement [MMI], the employee underwent an additional surgery for his work injury and was again physically disabled from working. He therefore claimed entitlement to temporary total disability benefits from January 25, 2010, to April 13, 2010. The employer and insurer argued at hearing that Minn. Stat. § 176.101, subd. 1(e)(2), prohibited the requested recommencement of temporary total disability benefits because the employee was not actively employed at the time he became medically unable to work. The compensation judge agreed and denied temporary total disability benefits on that basis. On appeal, the employee contends that case law allows recommencement of temporary total disability benefits, even though he had not returned to work, because he had not reached MMI as of the time of the new period of disablement. We agree.
In Hanson v. Team Pers. Servs., Inc., slip op., (W.C.C.A. May 7, 2004), this court noted that Minn. Stat. § 176.101, subd. 1(e)(2), applies to commencement and recommencement of total disability benefits after an employee has reached MMI, and we interpreted Minn. Stat. § 176.101, subd. 1(h), as implying its own recommencement provision. “In other words, if an employee has been denied temporary total disability benefits because he is released to return to work without work-injury-related restrictions, and if restrictions are subsequently reimposed, the employee once again becomes eligible for temporary total disability benefits at the time of the reimposition of restrictions, so long as restrictions are reimposed prior to 90 days post MMI and prior to payment of 104 weeks of temporary total disability compensation.” Id.
Hanson is directly on point here, and we therefore reverse the compensation judge’s denial of temporary total disability benefits effective January 25, 2010. However, because there appears to be a disagreement as to how long the employee was medically disabled from all work, we remand the matter to the judge for findings as to when temporary total disability benefits should cease.
 Matt Turner, one of the co-owners of the employer, testified that he had guaranteed the employee $200 for his work that day.
 A left middle finger flexor digitorum profundus tendon repair and radial and ulnar digital nerve repairs.
 The Minnesota Department of Employment and Economic Development was given notice of its right to intervene in this matter but did not do so.
 A left middle finger flexor tenolysis.
 Another left middle finger flexor digitorum profundus tendon repair.
 At hearing, the employer and insurer disputed the applicability of the formula used to calculate wages for construction workers, but there is no argument on this issue on appeal.
 Koziolek v. Aconite Corp., 49 W.C.D. 498 (W.C.C.A. 1993), and Hansford v. Berger Transfer, 46 W.C.D. 303 (W.C.C.A. 1991).
 The employer and insurer’s other argument on cross-appeal is that the employee had no loss of earning capacity following the injury because he continued to receive unemployment benefits. This argument has no merit whatsoever. Unemployment benefits are not wages, and there is no dispute that the employee was totally disabled from all work for the period in which the employer and insurer paid temporary total disability benefits.
 The employer and insurer also contended that, if benefits were awarded, they should cease on March 19, 2010, when the employee was released to return to work without restrictions.
 With regard to Hanson, the employer and insurer argue only that we should “reverse the holding in Hanson and look to the plain meaning of the statute to guide its decision in this case.” The holding in Hanson has been applied in subsequent decisions. See Hahn v. Graco, Inc., 66 W.C.D. 389 (W.C.C.A. 2006). We find no persuasive reason to overrule that line of cases, and we decline to do so.