JOHN H. KLOES, Employee/Appellant, v. ADVANCE UNITED EXPRESSWAY and EXCALIBUR INS. CO./MIGA, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 17, 2003

 

HEADNOTES

 

CALCULATION OF BENEFITS - ADJUSTMENT OF BENEFITS; STATUTES CONSTRUED - Minn. Stat. ' 176.645; STATUTES CONSTRUED - Minn. Stat. ' 176.101, subd. 1(a).  Where language in Minn. Stat. ' 176.645 cited by the employee was most reasonably construed as intended to preclude limiting adjusted benefits to the date-of-injury SAWW, not to preclude application of an already limited compensation rate to the adjustment provisions of the statute, where the compensation judge had aptly concluded that the suggestion in the 1981 version of Minn. Stat. ' 176.101, subd. 1(a), that compensation was to be calculated based on a daily wage rather than a weekly wage was Aa distinction without a difference,@ and in that an employee=s permanently applicable initial compensation rate has always been understood to be ultimately a weekly rate rather than a daily rate, the compensation judge did not err in concluding that the employee had not sustained an underpayment of benefits as a result of any miscalculation of his annual adjustments consequent to any misreading of Minn. Stat. ' 176.101, subd. 1(a).

 

Affirmed.

 

Determined by Pederson, J., Wilson, J., and Rykken, J.

Compensation Judge:  Gary P. Mesna

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The pro se employee appeals from the compensation judge's denial of the employee=s claim for underpayment of benefits.  We affirm.

 

BACKGROUND

 

On November 25, 1981, John Kloes sustained work-related injuries to both of his ankles and to his right wrist while employed by Advance United Expressway.  Mr. Kloes [the employee] was twenty-six years old on that date and was earning a weekly wage of $548.40.  Advance United Expressway [the employer] and its insurer, Excalibur Insurance Company, admitted liability for the injury and commenced payment of benefits.  Eventually, as a result of the insolvency of Excalibur Insurance Company, the Minnesota Insurance Guaranty Association [MIGA] has assumed responsibility for the claim.

 

On November 14, 2001, the employee, pro se, filed a Claim Petition, alleging entitlement to compensation for temporary total disability continuing from January 1, 2001, consequent to his injury on November 25, 1981.  Attached to the claim petition was a letter dated November 12, 2001, addressed to the Workers= Compensation Division of the Department of Labor and Industry, itself with two additional letters attached, in which the employee contested the manner in which Minn. Stat. '' 176.101 and 176.645 had been applied in the calculation and adjustment of his benefits since the date of his injury.  The employer and insurer denied the petition, including any claim that benefits had been improperly calculated, and requested that the petition be dismissed.  On September 10, 2002, in a Summary Decision following a pre-trial conference on July 22, 2002, a compensation judge dismissed the employee=s claim petition without prejudice, and on October 9, 2002, the employee filed a Request for Formal Hearing.

 

The matter came on for formal hearing on November 27, 2002.  The central issue at hearing was whether there had been an underpayment of the employee=s wage replacement benefits due to incorrect calculation of the annual adjustments in those benefits under Minn. Stat. ' 176.645.  The employee contended at hearing that the annual adjustment of his benefits should, under the statute in effect at the time of his work injury, have been calculated by application of his date-of-injury daily wage rather than his weekly wage.  He contended that ongoing application and adjustment of a daily compensation rate would, over time, have resulted in substantially greater benefits than he had received by ongoing application and adjustment of a weekly-wage-based compensation rate, which alone, he argued, under language of the statute in effect on the date of injury, was capped at the $267.00 date-of-injury statewide average weekly wage [SAWW].

 

By Findings and Order filed December 11, 2002, the compensation judge denied the employee=s claim for underpayment of benefits, concluding at Finding 5 that Athe maximum weekly benefit payable for the date of injury was $267.00,@ at Finding 6 that, A[b]ecause the employee=s daily wage, when converted to a weekly wage, would produce a compensation rate that would exceed the maximum weekly rate of $267.00, the employee=s initial weekly compensation rate for the injury of November 25, 1981 was $267.00,@ and at Finding 8 that, A[b]ecause the total benefits due the employee were limited by the maximum weekly benefits allowed on the date of injury, the initial adjustment under Minn. Stat. ' 176.645 must be applied to the employee=s initial weekly compensation rate of $267.00" and, A[i]n subsequent years, the >645 adjustment= must be applied to the compensation rate as adjusted for the previous year.@  In his memorandum, the judge explained that, while it was true that the 1981 version of the statute Aprovided that the compensation rate for temporary total disability benefits was 66 2/3 percent of the daily wage at the time of injury, rather than 66 2/3 percent of the weekly wage, this is a distinction without a difference@ (underscoring in original).  The employee appeals.

 

STANDARD OF REVIEW

 

A[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 Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

On the date of the employee=s work injury, Minn. Stat. ' 176.101 provided in pertinent part that temporary total disability should be compensated at A66 2/3 percent of the daily wage at the time of injury,@Aprovided that during the year commencing on October 1, 1979, and each year thereafter, commencing on October 1, the maximum weekly benefits payable shall be the statewide average weekly wage for the period ending December 31, of the preceding year.@  Minn. Stat. ' 176.101, subd. 1 (1980) (underscoring added).  Temporary partial disability benefits on that date were also based on Athe daily wage@ of the worker at the time of injury.  Minn. Stat. ' 176.101, subd. 2 (1980).  In 1983, the statute was amended to base wage replacement benefits on the weekly rather than the daily wage of the employee on the date of injury.  See Minn. Stat. ' 176.101, subd. 1 (1983).  On the date of the employee=s work injury, Minn. Stat. ' 176.645, subd. 1, provided as follows:

 

For injuries occurring after October 1, 1975 for which benefits are payable under section 176.101, subdivisions 1, 2 and 4, and section 176.111, subdivision 5, the total benefits due the employee or any dependents shall be adjusted in accordance with this section.  On October 1, 1981, and thereafter on the anniversary of the date of the employee=s injury the total benefits due shall be adjusted by multiplying the total benefits due prior to each adjustment by a fraction, the denominator of which is the statewide average weekly wage for December 31, of the year two years previous to the adjustment and the numerator of which is the statewide average weekly wage for December 31, of the year previous to the adjustment.  For injuries occurring after October 1, 1975, all adjustments provided for in this section shall be included in computing any benefit due under this section.  Any limitations of amounts due for daily or weekly compensation under this chapter shall not apply to adjustments made under this section.  No adjustment increase made on October 1, 1977 or thereafter under this section shall exceed six percent a year.  In those instance where the adjustment under the formula of this section would exceed this maximum the increase shall be deemed to be six percent.

 

Minn. Stat. ' 176.645, subd. 1 (1981).

 

Because two-thirds of the employee=s total wages each week at the time of injury exceeded the $267.00 SAWW for the preceding year, and because the employee=s weekly wage replacement benefits were therefore capped at that amount, the employer and insurer have based adjustment of benefits over the years on an initial compensation rate of $267.00.  The employee contends that proper application of the statute in effect on the date of his injury, based as it is on the employee=s daily wage, while it might limit the Amaximum weekly benefits payable@ to the SAWW in the single year following the injury, does not result in a weeklyAcompensation rate@ that is applicable beyond the first year following his injury.  He contends, after all, that the statute does not anywhere identify either any SAWW or any Amaximum weekly benefits payable@ as being a permanent Acompensation rate@ for any injured employee.  Moreover, he argues, Minn. Stat. ' 176.645 expressly precludes applying A[a]ny limitations of amounts due for daily or weekly compensation under this chapter@Bsuch as, he argues, the SAWWBin calculating an adjustment of benefits under the statute.  Had the statute been applied properly, he argues, his temporary total disability benefits would never have dropped belowBand would annually have been capped only at--the level of the SAWW in any given yearBjust as they had been in the year of his work injury.  For example, on the first anniversary of his injury, his Atotal benefits due@ should, he argues, have been calculated under the 1981 statute as two-thirds of his $109.68 date-of-injury Adaily@ wage ($73.12) times five ($365.60), prior to application of the 1982 adjustment factor of 6.00% and then being capped at the 1982 SAWW of $290.00.  This would render an adjusted compensation rate of $290.00 for 1982, rather than the adjusted compensation rate of $283.02 derived by applying the 6% adjustment factor directly to the $267.00 compensation rate on which he had been paid during the year immediately following his work injury.  We disagree with the employee=s application of the statute.

 

To begin with, we conclude that the A[a]ny limitations . . . shall not apply to adjustments@ language cited by the employee from Minn. Stat. ' 176.645 is most reasonably to be construed not to preclude application of a SAWW-limited date-of-injury compensation rate to the adjustment provisions of the statute, but only to preclude limiting adjusted benefits to previous limitations such as the date-of-injury SAWW.  Indeed, that language appears to us to be intended primarily to permit an annually adjusted benefit such as the employee=s eventually to exceed the SAWW at which the employee was capped in the year of his injury.  And, indeed, the employee himself has benefitted annually from this provision.

 

Somewhat more interesting is the employee=s argument from the daily-wage/weekly-wage confusion in the language in the version of Minn. Stat. ' 176.101, subd. 1, in effect on the date of the employee=s work injury.  To begin with, it is apparent that the legislature itself recognized an inconsistency and potential application problem in that language, by virtue of the fact that it amended the language in 1983 specifically to make it more consistently weekly based.  Moreover, notwithstanding the employee=s protestations that it makes a difference in his benefits, we cannot but conclude that the distinction on which the employee=s argument reliesBbetween his weekly wage and five times his daily wageBis, indeed, as the compensation judge has suggested, Aa distinction without a difference.@  An employee=s permanently applicable initial compensation rate has always been understood to be ultimately a weekly rate, regardless of whether it is derived directly from a weekly wage or indirectly from a daily wage multiplied by five, and regardless of the fact that the phrase Acompensation rate@ itself may or may not have appeared in the statute of any given year.  Using alternative methods of calculation for the 1982 adjustment as an example, to accept the employee=s argument would be essentially to nullify Minn. Stat. ' 176.645's provision that A[n]o adjustment increase made on October 1, 1977 or thereafter under this section shall exceed six percent a year.@  By the employee=s method of calculation, the employee=s weekly benefit would increase in 1982 from $267.00 to $290.00, an increase of over 8.6% in that year.

 

For purposes of application of Minn. Stat. ' 176.101, subd. 1 (1980), to Minn. Stat. ' 176.645, we agree with the compensation judge that the employee=s position is based on Aa distinction without a difference.@  As the compensation judge explained, A[t]he daily wage can be easily converted to a weekly wage and back to a daily wage by simply multiplying or dividing by five,@ and the statute itself implies such a fluid relationship, in its definition of Aweekly wage@ as being Aarrived 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.  We conclude that the compensation judge did not err in concluding that the employee has not sustained an underpayment of benefits as a result of any miscalculation of his annual adjustments consequent to any misreading of the statute.  Therefore we affirm the judge=s denial and dismissal of the employee=s claims.