Boeder v. State, Dep't of Natural Resources

CARL A. BOEDER, Employee/Appellant, v. MINNESOTA DEP=T OF NATURAL RESOURCES, SELF-INSURED, Employer, and MN DEP=T OF ECONOMIC SEC., Intervenor.

WAGES - SEASONAL WORK. Under the circumstances of this case, the compensation judge did not err in concluding that the employee=s weekly wage should be determined with reference only to the job he was working on the date of injury and not to another job for the employer that he had held just prior to the injury and expected to go back to.

REHABILITATION - COOPERATION; JOB SEARCH. Given his unappealed finding that the employee had cooperated with rehabilitation assistance, the compensation judge erred in denying temporary total disability benefits based on the employee=s failure to look for alternate employment.

The employee appeals from the compensation judge=s decision as to weekly wage and from the judge=s denial of temporary total disability benefits. We affirm in part and reverse in part.

The employee initially began working for the State of Minnesota, Department of Natural Resources [the employer], in September of 1990. His job involved repairing fire equipment as well as retrieving fire equipment from the field and occasionally delivering equipment to vendors and state auction sites. In 1992, he was laid off from this job, due to funding cuts, but he apparently returned to work for the employer later that year. Upon his return to work, union rules precluded him from working either more than 45 days per year or 45 days per fire season; the exact terms of the limit are unclear from the record. In any event, in 1994, the employee applied for and was offered a posted Apermanent intermittent@ position as a heavy equipment mechanic, which entailed the same work that he had been doing for the employer all along. According to the labor agreement between the employer and the union, an Aintermittent employee@ is defined as Aan employee who works an irregular and uncertain schedule which alternately begins, ceases, and begins again as the needs of the agency require.@ In other words, there was no guarantee as to hours, but the employee was no longer subject to the 45-day work limit. The employee testified that he worked essentially year round in the job until about 1996, when he began to be laid off over the summer months. While on summer layoff, the employee engaged in some farming, performed some Ashop work@ at home, and did some roadside mowing. The record indicates that the employee had no net earnings from these activities.

In 1999, the employee=s last day of work for the employer as a heavy equipment mechanic was May 19, 1999. Subsequently, on June 8, 1999, he began a new job for the employer as a building and grounds worker, in a night security job, patrolling parks and campgrounds and performing grounds maintenance and some equipment repair. This job, which was seasonal and expected to end in September for the year, paid $10.12 an hour for a guaranteed 40-hour work week. In comparison, the employee had earned more than $18.00 an hour in his heavy equipment mechanic job, but the hours varied depending on need. The employee testified that he applied for and accepted the building and grounds worker job in hopes that his hours in that job could eventually be added to the hours from his heavy equipment mechanic job for purposes of insurance eligibility; also, the job added to his vacation accrual and pension. He further testified that it was clearly understood that he would be allowed to hold both job classifications, meaning that he would be recalled in the fall to his job as a heavy equipment mechanic, as usual.

On June 9, 1999, only his second day working in the building and grounds worker position, the employee sustained bilateral shoulder injuries when a four-wheeled vehicle he was loading fell on top of him.^[1] He was subsequently off work and underwent right shoulder surgery to repair a torn rotator cuff on August 26, 1999. The self-insured employer admitted liability for the injury and paid various benefits. The employee began receiving rehabilitation assistance in October of 1999 and returned to light-duty work, counting and sorting deer tags, in November of 1999.

On April 27, 2000, the employee underwent a rotator cuff repair of his left shoulder. The following month, in late May of 2000, he was recalled to his building and grounds worker job, with a raise to $11.28 an hour. His seasonal layoff from this job occurred on September 23, 2000. Shortly before his layoff, on September 11, 2000, his treating physician assigned permanent restrictions and indicated that the employee had reached maximum medical improvement [MMI] from his injury.

In May of 2001, the employee was again recalled to his building and grounds worker job. About two months later, in July of 2001, he applied for and obtained a different seasonal job with the employer, in the parks and waterways department, for $14.96 an hour. The seasonal layoff from this job occurred on October 25, 2001. In April of 2002, the employee was again recalled to this job, and worked again until the next seasonal layoff at the end of October of 2002.

Following his June 1999 injury, the employee was recalled to work in his heavy equipment mechanic job for only one day, although he was also Aon-call@ for this position for about a month.^[2] Representatives of the employer testified that their decision not to recall the employee to this job was the result of a lack of need, because 2001 and 2002 were generally wet years with limited fire seasons. There was also testimony indicating that the employer=s approach as to how to use fire funds changed, and rehabilitation records indicate that the shop in which the employee had previously worked as a heavy equipment mechanic closed at some point Adue to budget concerns or reallocation of resources.@

The employee experienced increased left shoulder symptoms in the fall of 2002 and was diagnosed with a recurrent rotator cuff tear. Additional surgery was scheduled, but the employee elected not to undergo the procedure.

The matter came on for hearing before a compensation judge on December 5, 2002, for resolution of disputes concerning the employee=s weekly wage and his entitlement to wage loss benefits for various periods. With regard to the weekly wage issue, the employee took the position that the only way to arrive at a fair determination of his date-of-injury earning capacity was to consider his earnings for the 52-week pre-injury period -- which consisted primarily of his wages as a heavy equipment mechanic -- and then to apply the statutory provision concerning calculation of wage for workers whose jobs are affected by seasonal conditions. Under the employee=s theory, his weekly wage would be either $941.29 or $857.89,^[3] depending on whether pay for and days worked on-call were included. The self-insured employer disagreed with the employee=s approach, maintaining that the employee=s wages as a heavy equipment mechanic were irrelevant given the fact that the employee was injured while employed as building and grounds worker. As such, the employer alleged, the employee=s weekly wage for benefit purposes was $404.80, calculated by multiplying the employee=s $10.12 hourly pay as a building and grounds worker on the date of injury by the 40 hours per week of work guaranteed him in that job. Other disputes concerned whether the employee=s heavy equipment mechanic job was affected by seasonal conditions within the meaning of the statutory wage provisions, whether the employee had conducted a diligent job search and/or cooperated with rehabilitation during periods in which he was off work, and whether the employee had become medically unable to continue working in the fall of 2002, due to his rotator cuff retear, so as to be eligible for additional temporary total disability benefits. It was stipulated that the employee had reached MMI from his June 9, 1999, work injury on September 11, 2000, with service of notice of MMI such that the 90-day post-MMI period expired as of December 17, 2000.

In a decision issued on February 12, 2003, the compensation judge concluded that the employee=s weekly wage on the date of injury was $404.80, as asserted by the employer, that the employee had not become medically unable to continue working, and that, while the employee had cooperated with rehabilitation assistance, he had unreasonably waited to be recalled as a heavy equipment operator and had not diligently sought work during periods of unemployment after October 7, 2000. All wage loss benefit and underpayment claims were therefore denied. The employee appeals.

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.

Subd. 3. Daily wage. ADaily wage@ means the daily wage of the employee in the employment engaged in at the time of injury . . . . 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, 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. . . . If, at the time of injury, the employee was regularly employed by two or more employers, the employee=s earnings in all such employments shall be included in the computation of daily wage.

Subd. 18. Weekly wage. AWeekly wage@ is 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. If the employee normally works less than five days per week or works an irregular number of days per week, the 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, provided that the weekly wage for part time employment during a period of seasonal or temporary layoff shall be computed on the number of days and fractional days normally worked in the business of the employer for the employment involved. If, at the time of the injury, the employee was regularly employed by two or more employers, the employee=s days of work for all such employments shall be included in the computation of weekly wage.

Minn. Stat. ' 176.011, subd. 18. The object of a weekly wage determination 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 Sch. Dist. #1, 312 N.W.2d 435, 437-38, 34 W.C.D. 282-87 (Minn. 1981).

As indicated in the statutory provisions quoted above, weekly wage is as a rule to be based on earnings Ain the employment engaged in at the time of injury.@ Minn. Stat. ' 176.011, subd. 3. In the present case, the employee was on seasonal layoff from his heavy equipment mechanic position and was working only as a building and grounds worker on the date of injury, and the compensation judge concluded that the employee=s earnings in his building and grounds worker job fairly approximated his earning capacity, meaning that a $404.80 weekly wage should be used for benefit calculation purposes. On appeal, the employee contends that the compensation judge erred in failing to base the employee=s weekly wage on his pre-injury earnings as a heavy equipment mechanic. Therefore, the issue is whether an exception to the general rule should be made here to fairly approximate the employee=s earning capacity. As the Minnesota Supreme Court has noted,

While the computation of weekly wage is frequently based upon actual wages, there are various circumstances which make the claimant=s actual earnings during a particular period an unreliable measure of his future earning power. As Professor Larson has stated, Asometimes it is as important to reject as it is to accept a brief recent wage experience, if a realistic approximation of future wage loss is to be obtained.@ 2A. Larson, The Law of Workers= Compensation ' 60.21(c) (1987).

Bradley v. Vic=s Welding, 405 N.W.2d 243, 246, 39 W.C.D. 921, 924 (Minn. 1987). After review of the record in light of statutory and case law principles, we cannot conclude that the judge erred in his weekly wage determination.

Most of the cases cited by the employee in support of his position involved workers who were Aregularly employed@ by two or more employers on the date of injury, that is, employees who regularly performed two jobs at the same time but were earning wages from only one job on the date of injury because of seasonal conditions or other unusual circumstances. See, e.g., Beissel v. Marschall Line, Inc., 58 W.C.D. 470 (W.C.C.A. 1998); Newbauer v. Pepsi Cola Bottling Group, 43 W.C.D. 338 (Minn. 1990). These circumstances are not present in this case; there was no necessary overlap between the two positions. The employee simply intended to return to the mechanic job, as usual, in the fall, at which time he would be on layoff from the seasonal building and grounds position. Moreover, as the compensation judge noted, because the mechanic job carried an Aintermittent@ classification, there was no guarantee that the employee would necessarily ever be called back to that job, and he was in fact only recalled for one day of work subsequent to his work injury.^[4] Furthermore, while the employee had apparently worked as a permanent intermittent heavy equipment mechanic for at least part of the year ever since accepting the job in 1994, there is no evidence establishing his yearly earnings from that work except for the 52-week period prior to his injury. As such, we have no long term earnings history here to consider or to use for comparison.^[5] Compare Bradley, 405 N.W.2d 243, 39 W.C.D. 921 (noting that the WCCA=s wage calculation represented a figure over three times more than the employee had ever earned in his eight-year work history as a heavy equipment operator pre-injury). Finally, we note that while the employee actually earned about $27,000 or $28,000^[6] from his heavy equipment mechanic job in the 52-week pre-injury period, his proposed weekly wage calculation would compensate him as if he had earned a minimum of $45,000. The weekly wage figure adopted by the judge assumes an annual wage or earning capacity of just over $21,000 -- a figure closer to what it appears that the employee had actually been earning from his work for the employer.

Under all these circumstances, we cannot conclude that the compensation judge erred in adhering to the general rule that weekly wage is to be determined with reference to the employment the employee was engaged in on the date of injury. As such, we affirm his decision that the employee=s weekly wage was $404.80.

As previously indicated, the parties stipulated that the employee had reached MMI from his 1999 work injury on September 11, 2000, and that notice of MMI had been served such that the 90 days post-MMI period expired on December 17, 2000. The compensation judge denied the employee=s claim for temporary total disability benefits from October 7, 2000, through December 17, 2000, on grounds that the employee had unreasonably waited to be recalled as a heavy equipment mechanic and had not diligently sought alternative employment. We reverse.

In an unappealed finding, the judge expressly concluded that the employee had cooperated with rehabilitation assistance. When an employee has rehabilitation assistance, the issue for purposes of wage loss benefit entitlement is not so much whether the employee looked for work as whether the employee made a good faith effort to cooperate with rehabilitation efforts.^[7] See, e.g., Lee v. Bro-Tex, 52 W.C.D. 41, 47 (W.C.C.A. 1994); Schreiner v. Alexander Constr., 48 W.C.D. 469, 476 (W.C.C.A. 1993); Grieco v. Minn. Natural Foods, 48 W.C.D. 174 (W.C.C.A. 1993); Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989); Hughes v. Versa/Northern Iron, slip op. (W.C.C.A. Oct. 28, 1988); and Rodriquez v. West Central Turkeys, slip op. (W.C.C.A. Apr. 15, 1993). There is no basis for deviating from the general rule here. Therefore, given the compensation judge=s unappealed finding as to the employee=s cooperation with rehabilitation, we reverse the judge=s denial of temporary total disability benefits from October 7 through December 17, 2000.^[8]

^[1] The employee was actually still in training for the job when the injury occurred. Medical records indicate that he also injured his back in the incident.

^[2] In his heavy equipment mechanic job, the employee was occasionally placed on Aon-call@ status, during which he was paid a percentage of his usual hourly rate for remaining available to work on short notice. If he was actually called in to work, he would receive his usual hourly rate.

^[3] Calculated by dividing the employee=s total earnings in the 52-week pre-injury period by the total days worked in that period and then multiplying the resulting daily wage by five to reflect the fact that the employee=s heavy equipment mechanic job was allegedly affected by seasonal conditions.

^[4] We concede that an employee=s post-injury employment by the employer is not necessarily entitled to great weight when considering the issue now before us, because such post-injury employment is a factor almost entirely within the employer=s control. Nevertheless, a compensation judge may consider it as part of the totality of the circumstances when evaluating whether wages from a job other than the employee=s date-of-injury job should be included in determining weekly wage.

^[5] QRC records contain some evidence concerning the employee=s previous hourly pay but not weekly or yearly income.

^[6] Depending on which wage summary exhibit is used.

^[7] Also, here, the employer would not consent to amending the rehabilitation plan to provide for job search assistance.

^[8] The employee also appealed from the judge=s denial of temporary total disability benefits after December 17, 2000. However, he did not brief the judge=s decision that the employee did not become medically unable to continue working, and issues not briefed are deemed waived. See Minn. R. 9800.0900, subp. 1. Under these circumstances, the employee is not eligible for temporary total disability benefits after December 17, 2000, the 90th day after attainment of MMI. See Minn. Stat. ' 176.101, subd. 1(j).