CHARLES VAN KIRK, Deceased Employee, by PATRICIA VAN KIRK, Petitioner/Appellant, v. KRAFT AMERICAN and HARTFORD INS. GROUP/SEDGWICK CMS, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 27, 2012
WAGES - CALCULATION; EVIDENCE. Pursuant to Minn. Stat. § 176.411, subd. 1, the compensation judge did not err in relying upon the employer’s hand-written 26-week summary of the employee’s earnings for the 13 bi-weekly payroll periods ending November 6, 1993, to determine the employee’s pre-injury weekly wage. Where the evidence is insufficient to calculate the daily or weekly wage under Minn. Stat. § 176.011(8a) or (18), the judge may use another method which reasonably reflects the employee’s loss of earning power. The compensation judge did not err in using the 26-week wage summary rather than the employee’s Social Security FICA earnings record on the facts in this case.
EVIDENCE - ESTOPPEL & LACHES. Where the employer and insurer voluntarily paid benefits to the employee’s dependents, tolling the statute of limitations, where the petitioner withdrew her claim for underpayment of dependency benefits in the proceeding before the compensation judge, and where the compensation judge permitted the respondent’s claim for an overpayment, the doctrine of laches does not apply to bar the employee’s claim of an underpayment.
Affirmed in part and vacated in part.
Determined by: Johnson, J., Stofferahn, J., Milun, C.J.
Compensation Judge: Paul D. Vallant
Attorneys: Aaron W. Ferguson, Robert Wilson & Assocs., Minneapolis, MN, for the Appellant. Nicole B. Surges, Erstad & Riemer, Bloomingon, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The petitioner appeals the compensation judge’s finding that the employee’s weekly wage on November 14, 1993, was $693.54, the judge’s finding that the doctrine of laches bars her claim that the employee’s weekly wage exceeded $693.54, and the judge’s findings regarding an overpayment of benefits. We affirm the judge’s weekly wage and overpayment of benefit findings and vacate the judge’s findings of laches.
Charles Van Kirk, the employee, sustained a personal injury on November 14, 1993, arising out of his employment with Kraft American, the employer. The employee’s personal injury resulted in his death, and the employer and insurer commenced payment of dependency benefits based upon a weekly wage of $693.54.
In June 2011, the petitioner filed a claim for an underpayment of dependency benefits alleging the employee’s weekly wage on the date of injury exceeded $693.54. The employer and insurer denied liability for any additional benefits based upon that wage. Thereafter, the employer and insurer filed a petition to discontinue contending they had overpaid dependency benefits based upon erroneous benefit adjustments.
The petitioner’s claim petition and the respondents’ petition to discontinue were consolidated for hearing. At the hearing, the petitioner withdrew her claim petition, and the case proceeded to trial on the employer and insurer’s claim that based upon a weekly wage of $693.54 they had improperly adjusted benefits resulting in an overpayment. Although the petitioner had withdrawn her claim of an underpayment, she contended the employee’s weekly wage was $764.97, and there was, therefore, no overpayment of dependency benefits. In a findings and order, the compensation judge found that the employee’s average weekly wage on November 14, 1993, was $693.54. The judge further found that the petitioner’s claim that the employee’s pre-injury average weekly wage exceeded $693.54 was barred by the doctrine of laches. Finally, the compensation judge adjusted the $693.54 weekly wage pursuant to Minn. Stat. § 176.654, and made a finding regarding the applicable maximum compensation rate for the period July 1, 2011, through the date of the hearing. The judge then awarded the employer and insurer a credit for any payment of dependency benefits exceeding the applicable maximum compensation rate. The petitioner appeals these findings.
1. Weekly Wage
At the hearing, the respondents offered into evidence a hand-written summary of the employee’s net earnings for the 13 bi-weekly payroll periods ending November 6, 1993. The petitioner offered into evidence a statement from the Social Security Administration reflecting the employee’s FICA earnings for the years 1978 through 1993. Neither party submitted any payroll records documenting the employee’s earnings. The compensation judge concluded the 26-week wage statement constituted reliable hearsay evidence and relied upon that evidence to find the employee’s weekly wage on the date of injury was $693.54. The petitioner contends the compensation judge improperly relied on hearsay evidence in making this finding.
Minn. Stat. § 176.411, subd. 1, provides that in conducting a hearing, “the compensation judge is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure. Hearsay evidence which is reliable is admissible.” The purpose of a workers’ compensation hearing being the disclosure of all of the true facts, all competent, relevant and material evidence should be admitted. Scalf v. LaSalle Convalescent Home/Beverly Enters., 481 N.W.2d 364, 366, 46 W.C.D. 283, 286 (Minn. 1992). The compensation judge has broad discretion regarding admissibility of evidence. To warrant a reversal, the compensation judge’s ruling on admissibility of evidence must be prejudicial as well as erroneous. Kaiser v. Dick Lind Heating Co., slip op. (W.C.C.A. November 22, 1996).
The 26-week wage statement is entitled “Date of Injury Report for Chuck Van Kirk” and is dated and signed. In his memorandum, the compensation judge noted that this was the type of wage statement commonly prepared by employers and insurers at that time to show the injured employee’s weekly wage. The compensation judge determined the wage statement was reliable hearsay evidence. We cannot conclude that admission of this document was prejudicial or erroneous and conclude the compensation judge could properly consider it.
The petitioner next contends the compensation judge’s finding that the employee’s weekly wage was $693.54 is unsupported by substantial evidence. She argues that based upon the Social Security records the employee’s weekly wage was $764.97 which is a more accurate reflection of the employee’s earning capacity and more representative of his actual earnings. Accordingly, the petitioner requests the judge’s weekly wage finding be reversed.
In this case, the evidence was insufficient to allow the compensation judge to make a daily wage or a weekly wage calculation under Minn. Stat. §§ 176.011(8a) or (18). In such cases, the compensation judge may use another method which reasonably reflects the employee’s injury-related loss of earning power. See, e.g., Straley v. World Book Educ. Prods., 50 W.C.D. 370 (W.C.C.A. 1994). The compensation judge could reasonably rely upon the 26-week wage calculation in finding the employee’s weekly wage was $693.54. We find no basis to conclude that the employer’s weekly wage computation does not reasonably reflect the employee’s actual earnings. Accordingly, the compensation judge’s weekly wage finding is affirmed.
The compensation judge found the petitioner’s claim that the employee’s pre-injury average weekly wage exceeded $693.54 was barred by the doctrine of laches. The petitioner appeals this finding contending it is legally erroneous.
Laches is an equitable doctrine intended to prevent one who has not been diligent in asserting a known right from recovery at the expense of one who has been prejudiced by the delay. Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953). Where, as here, the employer and insurer voluntarily paid benefits to or on behalf of an employee following an admitted work injury, the statute of limitations for bringing a claim is indefinitely tolled. Livgard v. Cornelius Co., 243 N.W.2d 309, 28 W.C.D. 413 (Minn. 1976). We question, therefore, whether the doctrine of laches has any application when a party is seeking a legal remedy based upon a legal right and the remedy is not barred by the statute of limitations. Further, it is inconsistent to apply laches to ban the petitioner’s claim for an underpayment but allow the respondent’s claim for an overpayment. In any event, since the petitioner did not in this proceeding assert a claim for an underpayment of benefits that claim cannot be barred by laches. The compensation judge’s finding that the petitioner’s claim is barred by laches is vacated.
3. Overpayment Claim
The compensation judge made a finding adjusting the employee’s pre-injury weekly wage of $693.54 pursuant to Minn. Stat. § 176.645, then determined what the maximum compensation rate was for dependency benefits for the period July 1, 2011, through the date of hearing. The judge further found that the employer and insurer were entitled to a credit for an overpayment of dependency benefits to the extent that their payment of dependency benefits exceeded the maximum compensation rate found applicable by the judge. The petitioner appeals these findings contending that the judge inaccurately calculated the pre-injury weekly wage.
Because we have affirmed the compensation judge’s weekly wage finding, the finding regarding an overpayment is also affirmed.
 Counsel for the employer stated that the employee’s payroll records had been destroyed. The petitioner contends that following the hearing, she located wage records dated from July 18, 1993, through the employee’s final paycheck on November 20, 1993.