TAB PAUL, Employee, v. AZ RESTAURANT EQUIP. CO., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM'RS CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 6, 2002

 

HEADNOTES

 

WAGES - IRREGULAR.  Substantial evidence supports the compensation judge=s finding that the employee=s daily or weekly wage was not irregular or difficult to determine.  The 26-week formula in Minn. Stat. ' 176.011, subds. 3 and 18, was not applicable.

 

Affirmed.

 

Determined by: Rykken, J., Wilson, J., and Johnson, C.J.

Compensation Judge: Gary P. Mesna

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee=s daily or weekly wage was not irregular or difficult to determine, and argue that the 26-week formula set forth in Minn. Stat. ' 176.011, subds. 3 and 18, is applicable.  We affirm.

 

BACKGROUND

 

Tab Paul, the employee, was hired by A-Z Restaurant Equipment, the employer, in December 1999.  At that time, the employee and the employer entered into a verbal agreement whereby the employee was scheduled to work from 8:00 a.m. to 5:00 p.m., Monday through Friday, with a half hour unpaid lunch break.  His normal or regular work week consisted of 42.5 hours per week, with 40 hours paid at his regular hourly wage and 2.5 hours paid at an overtime rate.  The employee and employer had no written contract or guarantee that the employee would always be provided with 42.5 hours of work each week.  Under this agreement, the employee was paid holiday and vacation days after a certain period of time, but did not receive any paid sick days.  The employee earned an hourly rate of $7.50 when he began working in December 1999, and by July 28, 2000, his hourly rate had increased to $10.00 per hour.

 

On September 19, 2000, the employee sustained an admitted neck injury as a result of a slip and fall.  On that date, the employer was insured for workers= compensation liability by the Minnesota Workers= Compensation Assigned Risk Plan, as administered by Berkley Risk Administrators Company, LLC (insurer). 

 

The employer and insurer paid intermittent temporary total disability benefits between September 19, 2000 and February 26, 2001, for 7.4 weeks.  The employee returned to work on February 27, 2001, at full wage.  On March 9, 2001, the employer and insurer filed a Notice of Intention to Discontinue Benefits (NOID), asserting that the employee=s ongoing disability and treatment arose out of a pre-existing cervical condition.  The employee objected to the discontinuance of benefits and also asserted that the employer and insurer were paying at an incorrect rate.  An administrative conference was held on April 19, 2001, after which the compensation judge concluded that there was no reasonable basis for discontinuance and that the employee=s compensation should be based on a 42.5-hour week.  Thereafter, the employer and insurer filed a Petition to Discontinue Benefits and a Request for Formal Hearing, appealing from the compensation judge=s determination that there was not sufficient evidence to support discontinuance of benefits and that the employee=s wage should be based upon a 42.5 hour per week work schedule.  This matter was set for hearing on July 18, 2001, at which time the employer and insurer withdrew their request for review of the compensation judge=s findings concerning discontinuance of benefits.  The sole issue at hearing, therefore, was calculation of the employee=s weekly wage on his date of injury.

 

In Findings and Order served and filed August 15, 2001, the compensation judge concluded that the employee=s weekly wage on his injury date was $437.50, based upon a 42.5 hour work week, with his pay at the rate of $10.00 per hour for 40 hours, and overtime rate of $15.00 per hour for 2.5 hours.  The compensation judge concluded that the employee=s daily or weekly wage was not irregular or difficult to determine, and therefore the statutory 26-week formula was inapplicable.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.  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).

 

DECISION

 

The compensation judge found that the employee=s daily wage was not irregular or difficult to determine since the employee generally worked Monday through Friday, from 8:00 a.m. to 5:00 p.m. with a half-hour unpaid lunch break.  The compensation judge noted that the employee had missed some time for personal reasons, but that Athe lost time was rather minor.@  Emphasizing that the employee had regular hours which he normally worked, the hours that the employer=s store was open, the compensation judge calculated the employee=s weekly wage based on his regular 42.5 hour work week.  The employer and insurer assert that the compensation judge erred by finding that the employee=s daily or weekly wage was not irregular or difficult to determine and that the 26-week formula in Minn. Stat. ' 176.011, subds. 3 and 18, was not applicable in this case.  The employer and insurer argue that the employee=s daily wage was irregular, citing employment records which show that the employee did not work the full 42.5 hours every week. 

 

An employee=s weekly wage Ais arrived at by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved.@  Minn. Stat. ' 176.011, subd. 18 (1999).^[1]  Where the employee works an irregular number of days per week, Athe number of days normally worked shall be computed by dividing the total number of days in which the employee actually performed any of the duties of employment in the last 26 weeks by the number of weeks in which the employee actually performed such duties . . . .@  Id.  A`Daily wage= means the daily wage of the employee in the employment engaged in at the time of injury . . . .@  Minn. Stat. ' 176.011, subd. 3 (1999).^[2]  AIf the amount of the daily wage received . . . was irregular or difficult to determine, . . . 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 . . . .@  Id.  This 26-week formula is applicable only in cases where the daily wage is irregular or difficult to determine, or where the employee works part time. 

 

Generally, time off of work for vacations, holidays, or sick time does not render an employee=s work Airregular@ for the purposes of a weekly wage calculation.  See Valentine v. Anderson Trucking Service, 276 N.W.2d 649, 31 W.C.D. 379 (Minn. 1979).  The employer and insurer argue that the employee=s multiple unpaid absences render the employee=s wages irregular.  The employer and insurer cite Von Bank v. Frontier Communications, slip op. (W.C.C.A. Aug. 15, 1997), in which this court concluded that an employee=s wages were irregular where the employee had numerous unexcused and unpaid absences and had never completed a full pay period during the 26 weeks before her injury, distinguishing the case from Valentine.  In this case, the employee also had unpaid absences from work for personal reasons, but worked 42.5 hours per week for ten of the 26 weeks prior to his injury and worked over 40 hours for four more of those weeks.  In Valentine, the supreme court stated that Atime off without pay for personal reasons@ was not considered in characterizing the employee=s wages, and did not change Athe basic employment contract embodying regular hours of work at a regular hourly rate.@  Valentine, 276 N.W.2d at 50-51, 31 W.C.D. at 380.  Further, the object of wage determination is to arrive at a fair approximation of the employee=s probable future earning power which has been impaired because of the work injury.  Knotz v. Viking Carpet, 361 N.W.2d 872, 37 W.C.D. 452 (Minn. 1985).  Substantial evidence supports the compensation judge=s finding that the employee=s daily or weekly wage was not irregular or difficult to determine, and we affirm the compensation judge=s calculation of the employee=s weekly wage based upon a 42.5 hour work week.