RENEE TAYLOR, Employee/Cross-Appellant, v. UNIVERSITY OF MINN., and SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer-Insurer/Appellants, and HEALTHPARTNERS, INC., Intervenor.

 

    WORKERS= COMPENSATION COURT OF APPEALS

    FEBRUARY 26, 2003

 

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY; EARNING CAPACITY.  Where the employee was working and earning wages, but had not received those wages because of the employer=s financial difficulties, the employee=s claim for temporary partial disability benefits is premature and the compensation judge=s findings and order regarding this issue are vacated.

 

TEMPORARY PARTIAL DISABILITY.  Substantial evidence, including testimony of the employee, the QRC, and the job vendor, supports the compensation judge=s finding that the employee had conducted a reasonable and diligent job search.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including adequately founded medical opinion, supports the compensation judge=s finding that the employee=s bilateral trigger thumb condition was causally related to the employee=s work injury. 

 

WAGES - IRREGULAR HOURS.  Substantial evidence supports the compensation judge=s finding that the employee=s hours were irregular and that her weekly wage should be calculated under Minn. Stat. ' 176.011, subd. 18.

 

Affirmed.

 

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

Compensation Judge: Kathleen Behounek

 

       OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s denial of its petition to discontinue the employee=s temporary partial benefits, and from her finding that the employee=s bilateral trigger thumb condition and related medical treatment are causally related to the employee=s work injury on February 1, 1999.  The employee cross-appeals from the compensation judge=s finding that the employee earned an average weekly wage of $412.03 on February 1, 1999.  We affirm in part and vacate in part.

 

 

BACKGROUND

 

This claim arises from an admitted injury that Renee Taylor, the employee, sustained on February 1, 1999, in the nature of bilateral carpal tunnel syndrome as a result of her employment with the University of Minnesota, the self-insured employer.

 

The employee initially worked for the employer as a food service worker between September 1995 and July 1997.  In late 1997, while working as a bindery operator through Express Personnel, a temporary personnel agency, the employee noted gradually increasing symptoms of right shoulder aching and bilateral wrist pain.  On or about November 13, 1997, the employee sustained an admitted work-related injury to her wrists.  Between November 1997 and March 1998, she  treated with Dr. Charles Hipp, who diagnosed moderate dorsal wrist tendinitis bilaterally, and Dr. Karen Ryan, who diagnosed a possible carpal tunnel syndrome or ulnar neuropathy.  Both assigned work restrictions and prescribed physical therapy and medication.  By March 2, 1998, Dr. Ryan concluded that the employee had no findings of either carpal tunnel syndrome or ulnar neuropathy in her hands, although she continued to have weakness in her left hand.

 

The employee returned to work for the University of Minnesota between June 1998 and January 2000, first in a housekeeping position and later in a food service position.  In September 1998, she consulted Dr. Ryan for shoulder symptoms and carpal tunnel syndrome, and underwent physical therapy at Minnesota Hand Rehabilitation.^[1]   The employee experienced an onset of bilateral wrist symptoms, which she claimed resulted from her repetitive food preparation and food service  duties, and which culminated in an injury date of February 1, 1999.  The employee continued to work following this injury.  The employee received her first documented medical treatment after this  injury on August 4, 1999, when the employee was examined by Dr. Colleen Andruss, at HealthPartners, who diagnosed bilateral carpal tunnel syndrome, assigned work restrictions and prescribed physical therapy.  The next treatment reported in the record was on December 28, 1999, when the employee was first examined by  Dr. David Falconer, Metropolitan Hand Surgery Associates, who also diagnosed bilateral carpal tunnel syndrome, and recommended surgery.   The employee worked for the employer until  January 17, 2000 within light-duty restrictions imposed by Dr. Falconer.  Since that date,  the employer has paid temporary total and temporary partial disability benefits for various periods of time.

 

On January 26, 2000, the employee was referred for an examination with Dr. James Anderson, Fairview HealthWorks Clinics.  He diagnosed bilateral carpal tunnel syndrome, and assigned work restrictions.  Thereafter, the employee continued receiving her medical treatment from Dr. Falconer.  An EMG taken on February 10, 2000, showed median neuropathy in both wrists and bilateral ulnar neuropathy at the elbow.  On March 15, 2000, the employee underwent carpal tunnel release surgery on her right wrist and was released by Dr. Falconer to return to light duty work within three weeks.  She underwent the same surgery on her left side on May 17, 2000, and by June 27, 2000, Dr. Falconer again released the employee to light duty work.  On October 20, 2000, Dr. Falconer issued a report stating that Abased on [the employee=s] completing normal and routine available hand therapy treatment, I am not sure there is much else to recommend and it does appear likely that she has reached a state of maximum medical improvement.@  He concluded that the employee could return to most activities on an unrestricted or unlimited basis with the exception of avoiding Aheavy duty vibration material such as torque guns, power vibrating buffers, sanders and the like.@  The employer served this report on the employee on December 5, 2000, as notice of maximum medical improvement.

 

The employee consulted Dr. Falconer on December 19, 2000, reporting symptoms in both thumbs.  In his chart note of that date, Dr. Falconer stated that the employee had Aa new and significant finding, bilateral crepitation and trigger thumb,@ which he determined to be a Aspecific and direct consequential result of her tenosynovitis causing her carpal tunnel as these conditions are widely known and recognized to be related.@  Dr. Falconer stated that the employee=s condition would require further treatment and that he did Anot think her overall condition is at maximum medical improvement.@  He recommended physical therapy, performed cortisone injections at the employee=s A1 pulley level of both thumbs, recommended that the employee avoid highly repetitive work activity, gripping and squeezing, and advised that the employee would need some degree of long term and permanent restrictions.

 

On February 6, 2001, Dr. Falconer examined the employee due to a reported recurrence of  pain at the base of her thumbs; he performed a second cortisone injection in each thumb, and recommended a surgical release if those injections did not relieve her pain.  Dr. Falconer reiterated his opinion that the employee=s thumb condition was related to her 1999 work injury.

 

The employee was examined by Dr. William Call at the request of the self-insured employer on January 23, 2001.  Dr. Call diagnosed mild left carpal tunnel syndrome and found no evidence of ulnar neuropathy and no objective evidence of any significant right carpal tunnel syndrome.  He also found no objective evidence of stenosing tenosynovitis or trigger thumb.  Dr. Call concluded that the employee had sustained at least an exacerbation of a bilateral carpal tunnel syndrome during her work for the self-insured employer, but that she had sustained no direct or consequential injury to bilateral thumbs in the course and scope of her employment with the employer.  He concluded that the trigger thumb condition was either idiopathic or the result of some activity performed at home.  Dr. Call recommended further diagnostic testing before contemplation of additional medical treatment, and advised that if testing showed inflammation in the employee=s thumbs, a cortisone injection would be appropriate.  He recommended against surgery in the nature of trigger thumb release based on his lack of finding any objective evidence of a trigger thumb condition.  Dr. Call concluded that the employee had reached maximum medical improvement from her carpal tunnel condition; on February 7, 2001, the employer served Dr. Call=s report on the employee as notice of maximum medical improvement. 

 

Although there were periods of time in 2000 during which the employee had been released to return to work on a light-duty basis, the employee remained off work between January 2000 and March 2001.  The employer first provided rehabilitation assistance for the employee in April 2000, and by March 2001, the employer assigned a placement vendor to work with the employee.  As of March 26, 2001, the employee began working full-time for Metro One Telecommunications, where she worked as a directory assistance operator for cell phone users.  This position was initially full-time, but she reported increasing hand pains as a result of keying tasks.  On April 26, 2001, Dr. Falconer advised that the employee=s work activities were Aprobably inappropriate and unsuitable, but are taken because of financial hardship and economic loss rather than medical choice,@ that her present job was not Aideal or suited@ and that she should try cutting back to six hours per day.  According to Dr. Falconer=s note dated July 26, 2001, Dr. Falconer stated that the employee=s hourly work restriction was related to her trigger thumb diagnosis, which he concluded was Aan extension and causally related to the work duties which caused her CTS.@

 

On July 31, 2001, the employee reported increased right hand symptoms which Dr. Falconer concluded were a temporary aggravation of her previous carpal tunnel condition.  He stated that the employee might need to discontinue her current repetitive work, and on August 24, 2001, the employee discontinued working for Metro One.^[2]  On August 28, 2001, Dr. Falconer recommended surgery for the employee=s trigger thumb condition.  Dr. Falconer assigned permanent work restrictions for both hands, including limitations on the employee=s gripping, lifting and carrying, and avoidance of prolonged or sustained keying, typing, data entry and computer work - limited to 30 minutes every two hours.  Dr. Falconer also recommended that the employee keep her upper extremities splinted. 

 

Although she was released to full-time work, the employee began working three hours per day in September 2001 for the Midway YMCA in St. Paul, Minnesota.  She underwent bilateral trigger thumb release surgery on October 11, 2001, and, according to QRC Nancy Erickson, job placement efforts were delayed pending that surgery.  By October 19, 2001, Dr. Falconer released the employee to return to work with restrictions of no gripping or pinching, and no lifting or carrying over five pounds; the employee eventually returned to work for the YMCA.  The employee, her QRC and placement vendor completed a formal job placement plan and agreement (JPPA) on November 19, 2001.  The JPPA delineated the employee=s job search requirements and the placement vendor=s responsibilities, including the requirement that the employee should conduct a job search on a full-time basis, 5 days per week.

 

In a letter dated December 14, 2001, Dr. Falconer reported good healing after the employee=s bilateral trigger thumb release, and that she had recovered to a good state of essentially normal function after her carpal tunnel release surgery.  He again assigned work restrictions, including avoidance of highly repetitive tasks, sustained vibration and continuous keying work.  He  stated that A[i]ntermittent keying and computer work up to four hours a day with the opportunity to stretch and perform other non-repetitive activities intermittently could be considered.@

 

In early January 2002, the employee=s employment with the YMCA was terminated for reasons unrelated to her physical condition.  On January 18, 2002, the employee began working with Publisher=s Direct on a part-time basis.  In a chart note dated February 12, 2002, Dr. Falconer stated that Ait does appear that she is at maximum medical recovery from her carpal tunnel and trigger finger conditions@ and advised that Ano further treatment appears necessary.@  On March 4, 2002, the employer served Dr. Falconer=s report on the employee as notice of maximum medical improvement. 

 

The employee=s position with Publisher=s Direct was terminated on approximately February 14, 2002.^[3]  On March 5, 2002, she began working on a part-time basis for Electro- Plating Engineering Company, Inc., purportedly earning $10.00 per hour, working between 15-21 hours per week.  As of the hearing on April 9, 2002, the employee had received no pay for any of her work for Electro-Plating, as it had filed for Chapter 11 bankruptcy protection.   The evidence in the record of the employee=s anticipated wages is set forth in a letter to a representative of the employer=s insurance administrator from Electro-Plating Engineering Co., Inc., dated March 26, 2002, in which that company=s owner listed the hours worked by the employee between March 5-21, 2002, and stated that the employee=s position was a part-time clerical and filing position, at a rate of $10.00 per hour.  The owner stated that AI also info[r]med Ms. Taylor that our company was in Chapter 11 Bankrup[t]cy, however I assured her that she would be paid as soon as the funds are released.@

 

A hearing was held on April 9, 2002, to address both the employee=s medical request for payment of medical and surgical expenses related to her bilateral trigger thumb condition, and the employer=s petition to discontinue the employee=s temporary partial disability benefits as of mid-February 2002, when the employee discontinued working for Publisher=s Direct.  At hearing, the employer alleged, in part, that because the employee was not being paid for her work for Electro-Plating, it was not obligated to pay temporary partial disability benefits based on anticipated wages.

 

In her Findings and Order, served and filed June 4, 2002, the compensation judge found that the employee=s bilateral trigger thumb condition was causally related to the employee=s work injury of February 1, 1999, and that the medical treatment for that condition, including her 2001 surgery, was reasonable and necessary to cure and relieve the effects of that injury.  The compensation judge found that the employee=s reported earnings at Electro-Plating were presumptive of her current post-injury earning capacity, and therefore concluded that the employee was entitled to payment of temporary partial disability benefits based upon those earnings.  As a result, the compensation judge denied the employer=s petition to discontinue the employee=s temporary partial disability benefits.  The employer appeals.

 

The compensation judge also found that the employee earned a weekly wage of $412.03 on the date of her injury.  The employee cross-appeals from that wage determination. 

 

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 (1992).  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 the 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).

 

DECISION

 

1. Temporary Partial Disability

 

The compensation judge denied the employer and insurer=s petition to discontinue temporary partial disability benefits, finding that the employee was entitled to temporary partial disability benefits based upon the wages she earned at Electro-Plating Engineering.  The compensation judge found as follows:

 

14.  The employee has earned wages at Electro-Plating Engineering since March 5, 2002, but has not been paid due to the pending bankruptcy proceedings of Electro-Plating Engineering.  Electro-Plating Engineering intends to pay the employee=s wages as soon as funds are released pursuant to the bankruptcy procedures.

 

15.  The employee is not precluded from receipt of temporary partial disability benefits based on Electro-Plating Engineering=s current inability to pay her wages.

 

16.  The employee=s earnings at Electro-Plating are presumptive of her current post-injury earning capacity.  She is entitled to temporary partial disability benefits from March 5, 2002 through the date of hearing, and continuing, based upon her earnings at Electro-Plating Engineering.

 

The employer appeals, arguing that the employee is not entitled to temporary partial disability benefits because she did not conduct a reasonable and diligent job search, and also argues that it is not obligated to pay temporary partial disability benefits Aunless and until the employee actually receives a wage for the work performed.@  (Er. Brief, p. 10.)

 

In order to demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related physical disability, an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the disability.  See Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976);  Once an employee is working and earning, the employee=s actual post-injury earnings are usually presumed to be a fair measure of her current earning capacity, absent a showing by the employer and insurer of Asomething more than a theoretical possibility of a [different] position or wage.@  Patterson v. Denny=s Restaurant, 42 W.C.D. 868, 875 (W.C.C.A. 1989). 

 

The employer and insurer argue that the employee neither cooperated with her rehabilitation nor conducted a reasonable and diligent job search, and therefore is not entitled to  temporary partial disability benefits.  A[W]hile it remains true that an employee=s entitlement to temporary partial disability might >generally= be established by a diligent job search, we have also explained that a reasonable and diligent job search is >not a legal prerequisite to an award of temporary partial disability benefits.=@  Fennig v. Transcom, slip op.  (W.C.C.A., March 19, 1999), (quoting Nolan v. Sidal Realty Co., 53 W.C.D. 388, 394 (W.C.C.A. 1995) (emphasis added in Fennig)).  Instead of being a requirement, evidence as to the extent of the employee=s job search is merely Aevidence which the compensation judge may consider in determining whether the employee=s wage loss is causally related to the work injury.@  Id., (quoting Johnson v. Axel Ohman, 48 W.C.D. 198 (W.C.C.A. 1992) (emphasis added in Fennig)).  The compensation judge found that there was no evidence showing that the employee failed to cooperate with the rehabilitation assistance provided to her through January, 2002.  Noting that the employee was without professional rehabilitation assistance after January 2002, the compensation judge also found that the employee=s job search activities since that time have been reasonable and diligent.^[4]  In her memorandum, the compensation judge concluded that A[g]iven the fact that the employee has worked since January, 2002, has continued to look for work through newspapers, networking, job fairs and following up with limited job leads, her search for work is determined to be reasonable and diligent.@

 

The employee=s QRC testified that, in general, the employee had cooperated with her rehabilitation plan and had Afollowed through, probably, on the majority of the leads given to her.@  Her placement vendor testified that the employee had not met the requirements of the latest JPPA, but that Afor the time involved, she was probably doing what she felt was the best of her ability.@  Based on the evidence of record, including testimony presented by the employee, her QRC and placement vendor, we cannot conclude that the compensation judge erred in finding that the employee=s job search prior to the hearing was reasonable and diligent.  We therefore affirm that portion of the compensation judge=s findings related to the employee=s job search, Findings Nos. 11 and 12.

 

The employer also argues that the employee has not yet been paid any wages by Electro-Plating Engineering and therefore is not entitled to payment of temporary partial disability, because there are no wages on which to base payment of benefits.  In view of the unique circumstances of this case, we agree.

 

Pursuant to Minn. Stat. ' 176.101, subd. 2(b), Atemporary partial disability benefits may be paid only while the employee is employed, earning less than the employee=s weekly wage at the time of the injury,@ subject to a showing that the reduced wage is due to the injury.  The statute does not specifically state whether Aearning@ equates with Abeing paid wages.@  In Byrne v. Hanover Shoes, 39 W.C.D. 580 (W.C.C.A. 1987),  this court approved an averaging method for an employee paid on a commission basis, whereby the employee=s post-injury earnings are averaged out over a reasonable period of time and the resulting wage is compared to the pre-injury wage to determine the amount of weekly temporary partial disability benefits.  See, e.g., Maher v. Edward Kraemer & Sons, 48 W.C.D. 598 (W.C.C.A. 1993); Barry v. Donaldson Constr. Co., 47 W.C.D. 178 (W.C.C.A. 1992).

 

This court has also addressed payment of temporary partial disability for a self-employed employee and concluded that Aemployment@ such as is required for eligibility for temporary partial disability benefits must generate positive earnings.  Thelen v. Thelen Heating & Roofing, 59 W.C.D. 84, 93 (W.C.C.A. 1999), citing Hansford v. Berger Transfer, 46 W.C.D. 303 (W.C.C.A. 1991), summarily aff=d, (Minn. Mar. 19, 1992).  In Hansford, the employee had been self-employed at a motel and marina business for over four years, but he and his wife had never taken any salary or draw for the resort work.  The compensation judge denied the employee=s claim for temporary partial disability benefits based on the claimed value of the employee=s work in the open labor market, concluding that the job was not an accurate measure of his earning capacity, that the employee had withdrawn from the labor market, and that A[a]bsent earnings, the employee cannot be considered employed for purposes of temporary partial benefits.@  On appeal, this court affirmed, stating that:

 

Earning capacity may in fact be more relevant than what the employee is "paid," in that a self-employed employee frequently has considerable control over what he or she receives as a salary for the work performed . . . On the other hand, in cases involving injuries sustained on or after January 1, 1984, proof of earning capacity alone is generally inadequate to establish entitlement to temporary partial benefits.  See Parson v. Holman Erection Co., 428 N.W.2d 72, 41 W.C.D. 129 (Minn. 1988).  The employee must be working, and implicit in this requirement is the additional requirement that the employee must be paid a wage or have some earnings as a result of his labor.  If the employee has no earnings -- whether or not he or she is performing "real work" -- it may fairly be said that the employee has withdrawn from the labor market.

 

Hansford, 46 W.C.D. at 313-14.  This court further determined that an employee's failure to take a specific wage, standing by itself, does not automatically disqualify an employee from eligibility for temporary partial benefits, and that A[e]ach situation must be carefully analyzed on its facts to determine what the employee's >earnings= may reasonably be considered to be, regardless of the amount the employee actually pays himself or herself, and temporary benefit entitlement should be determined accordingly.@  Id. (footnote omitted.)

 

In this case, the employee has not yet been paid a wage for her work with Electro-Plating and accordingly there are no wages on which temporary partial disability benefits can be calculated and the employee had no earnings for purposes of establishing eligibility for temporary partial benefits.  As a result, we conclude that her claim for temporary partial disability benefits is premature, and we vacate those findings and order related to the compensation judge=s award of temporary partial benefits.  The employee is free to bring a claim in the future for temporary partial disability, if and when she receives payment for her work at Electro-Plating Engineering Co., Inc.

 

2. Causation of Bilateral Trigger Thumb Condition

 

The compensation judge found that the employee=s bilateral trigger thumb condition is causally related to her work injury of February 1, 1999, and that the medical treatment provided to the employee for that condition, including her surgery in 2001, was reasonable and necessary to cure and relieve the effects of the employee=s work injury.  Adopting Dr. Falconer=s opinion, the compensation judge also found that as of August 2001, the employee required permanent restrictions on her work activities, relative to both her bilateral carpal tunnel syndrome condition and bilateral trigger thumb condition.  In her memorandum, the compensation judge outlined the basis for her reliance on Dr. Falconer=s opinion and stated that she found his opinion on causation of the employee=s trigger thumb condition to be persuasive and based upon accurate and complete foundation.  The employer appeals, arguing that Dr. Falconer=s opinion lacks foundation because it is based on an erroneous assumption that the employee=s thumb symptoms developed while she was still employed by the self-insured employer.  The employer relies instead on the opinion of Dr. Call, who disputed the diagnosis of trigger thumb and tenosynovitis made by Dr. Falconer, and argues that Dr. Call=s opinion is based upon factual foundation supported by the medical evidence in the record.

 

Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To be of evidentiary value, a medical opinion must rest on a factual basis.  Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961).  Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence.  McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff'd (Minn. July 13, 1990).   The employer argues that the statements and findings in Dr. Falconer=s December 19, 2000, and December 14, 2001, reports are contradictory and demonstrate the lack of foundation for his opinion.  They contrast his December 19, 2000, statement that the thumb condition represents Aa new and significant finding,@ with his report on December 14, 2001, that the employee developed thumb symptoms when she attempted to return to work for the employer following her carpal tunnel release surgeries in 2000.  Dr. Falconer=s report of December 14, 2001, outlines the progression of his treatment of the employee since December 28, 1999, and states that

 

while the patient made an attempt to return to her pre-injury in the food service department [following carpal tunnel surgery] at the University of Minnesota she did require some partial functional restrictions and was not allowed by her employer to return to work.  During this period of return to work for the University of Minnesota she developed painful swelling, clicking and locking of the base of the thumbs consistent with trigger thumb condition.  I felt this was an exacerbation of her tendinitis causing her original carpal tunnel, as the disorders of carpal tunnel and trigger finger are frequently seen together or in close association.

 

Based on Dr. Falconer=s records generated between December 28, 1999, and December 14, 2001, and based on upon the medical evidence of record as a whole, we can not conclude that the opinions of Dr. Falconer are based on erroneous assumptions about the development of the employee=s thumb symptoms and that those opinions lack foundation.  In addition, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony and a compensation judge=s choice between conflicting medical opinions is upheld, unless the opinion on which the judge relies is not based on adequate foundation or evidence and facts in the record.    Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  In view of the record as a whole, the compensation judge reasonably relied on Dr. Falconer=s opinion, as opposed to that of Dr. Call, in reaching her conclusions concerning the development of the employee=s thumb condition and its causal relationship to the employee=s work injury, and we affirm.

 

 

 

3. Employee=s Weekly Wage

 

The compensation judge found that the employee earned an average weekly wage of $412.03 at the time of her injury on February 1, 1999.  She based this conclusion on wage records submitted by the employer for the 26 weeks prior to that injury, which showed that the employee=s hours and earnings were irregular.  The employee cross-appeals, arguing that her wage should be based upon a 40 hour work week, at the rate of $10.60 per hour, resulting in a weekly wage of $424.00.

 

Minn. Stat. ' 176.011, subd. 18, sets forth the method of calculating weekly wage if an employee Anormally works less than five days per week or works an irregular number of days per week.@^[5]  The compensation judge found that the employee=s hours prior to her injury were irregular; the wage records in evidence support this conclusion.  As a result, the compensation judge=s method of calculation of the employee=s wage rate is supported by the evidence, is not clearly erroneous, and is affirmed.