PAULINE MARTINEZ, Employee/Appellant, v. THOMAS STORAGE SYS., and MINNESOTA ASSIGNED RISK PLAN adm=d by BERKLEY RISK ADM=RS, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 9, 2005

 

No. WC05-172

 

HEADNOTES

 

WAGES - CALCULATION.  Where there was no evidence to indicate that the employee worked an irregular schedule, the compensation judge=s finding to that effect is clearly erroneous.  The evidence established that the employee was hired to work 40 hours per week, and that she was working on that basis until her work injury intervened to prevent her from continuing.  Pursuant to the calculation of weekly wage set forth in Minn. Stat. ' 176.011, subd. 18, the employee=s weekly wage has been based on her daily wage multiplied by the anticipated five days of work per week.

 

Reversed.

 

Determined by: Stofferahn, J., Pederson, J., and Rykken, J.

Compensation Judge: Carol A. Eckersen

 

Attorneys: William G. Moore, Fridley, MN, for the Appellant.  Peter J. Williams, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination of her weekly wage on the date of injury.  We reverse.

 

BACKGROUND

 

Pauline Martinez, the employee, sustained an admitted injury to her right index finger on November 10, 2003. The only issue presented to the compensation judge at hearing was the determination of the employee=s weekly wage.

 

At the time of the injury,  Thomas Storage Systems, the employer, was in the business of installing equipment at cold storage facilities.  The company maintained no work site of its own and all of its work was done on an as-needed basis at other companies= locations.  In 2003, the employer had only one permanent employee for installation work; whenever the employer needed more workers, it would hire them on a temporary basis for the duration of the assignment.

 

In the fall of 2003, the employer started a large installation job at Newport Cold Storage which was expected to take about two months.  Pauline Martinez, the employee, was one of several employees hired to perform one of the installation tasks, putting wheels on carts at a rate of pay of $10.00 per hour.  The employer testified that the workers hired for this task were hired to work forty hours per week but that their employment would last only until this task was completed, which was anticipated would be from one to two and one-half weeks.

 

The employee began work on Wednesday, November 5, 2003.  She worked more than eight hours that day and more than eight hours again on Thursday and Friday, November 6 and 7.  Her time records show that she worked 26 hours during that pay period, which ended on November 8, 2003.  The employee was off work over the weekend, and returned as scheduled on Monday, November 10.  After about two hours at work, she sustained a work injury which resulted in partial amputation of her right index finger.  She went to the emergency room at Regions Hospital for treatment and she was taken off work. The employer decided to pay her for the full day, paying her $85.00 for eight and one-half hours during the pay period beginning on November 9 and ending November 15, 2003.

 

On February 17, 2005, a hearing was held before Compensation Judge Carol Eckersen.  It was the employee=s claim that her weekly wage was either $400.00, calculated on the basis of a 40-hour work week, or, in the alternative, $433.35, based on the fact that she had actually worked more than eight hours per day. The employer and insurer contended that the employee=s employment was Airregular,@ and that her weekly wage was appropriately calculated at $176.00.  Following the hearing, the compensation judge determined the employee=s weekly wage at $172.50. The employee appeals.

 

DECISION

 

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.   The daily wage, in turn, is Athe daily wage of the employee in the employment engaged in at the time of injury. . . @ Subd. 3. In situations where the employee=s daily wage Awas irregular or difficult to determine,@ or where an employee Anormally works less than five days per week or works an irregular number of days per week,@  the total earnings received during the 26 weeks preceding the injury are divided by the number of days in which the employee actually performed the duties of the employment to determine an average daily wage. The average number of days worked per week is determined by dividing the number of days actually worked during the same 26 weeks by the number of weeks actually worked.  The daily wage and the number of days worked per week are then multiplied together to obtain a weekly wage. Minn. Stat. ' 176.011, subd. 3. and  subd. 18. The goal of the wage determination is to arrive at a fair approximation of the employee=s probable future earning power which has been impaired because of the injury.  Bradley v. Vic=s Welding, 405 N.W.2d 243, 39 W.C.D. 921 (Minn. 1987).

 

The employee argues on appeal that the compensation judge erred in calculating her weekly wage.  The compensation judge found that the employee Aworked an irregular schedule@ and that her job Awas not a forty-hour full time position.@  The compensation judge determined that the employee=s daily wage was $86.25, dividing the employee=s total wages received by the four days on which she worked.  The compensation judge then applied the averaging method provided for situations where an employee Anormally works less than five days per week or works an irregular number of days per week.@  Concluding that the employee Aworked a total of four days in two weeks for an average of two days per week,@ the judge arrived at an average weekly wage of $172.50.

 

An employee=s wage is irregular if there is a variance in the number of hours worked each day or in the number of days worked each week or in the hourly wage earned by the employee. Wilson v. Scanlon Int=l. Inc., 64 W.C.D. 548 (W.C.C.A. 2004); Schoenborn v. Softpac Indus., Inc., slip op. (W.C.C.A. April 20, 2005); Patrick v. Christensen Farms, slip op. (W.C.C.A. Oct. 29, 2002).  We find no evidence of any variance in hours or wage in the present case.

 

The employee testified that she expected to work a 40-hour week at an hourly rate of $10.00. The employer testified that the employee would perform a full-time assignment of 40 hours per week. In a form captioned AStatement of Earnings,@ Casey Peterson, an administrative assistant for the employer who also testified at the hearing, indicated that the normal work week was 40 hours for five days. The employee=s actual work history with the employer was also consistent with the anticipated full-time schedule.  She began working for the employer on a Wednesday, and worked in excess of eight hours that day and on each of the next two days, Thursday and Friday.  There was no evidence that the employee=s work week was other than Monday through Friday, or that the employer performed any work over the weekend.  The employee was off work over the weekend, and returned as scheduled on Monday, when she sustained her injury.  That the employee was scheduled to work at least eight hours on that day is implicitly demonstrated by the fact that the employer, who decided to pay her for the full day of her injury, paid her for eight and one-half hours for that date.

 

The employer argues that the compensation judge=s use of the 26-week averaging method was appropriate because the employee=s job was temporary, and would not have lasted more than two and one-half weeks. We find no authority for the proposition that a temporary or short -term job must be found to be irregular for purposes of calculating the employee=s weekly wage. The employer=s reliance on Blight v. Harbor City Masonry, 60 W.C.D. 131 (W.C.C.A. 2000) is misplaced. In Blight, this court reversed a compensation judge=s computation of the weekly wage which used the earnings of a coworker. Although the employee in that case had worked only a few days before his injury, this court held that the employee=s actual earnings should be used to calculate his wage. This court did not hold that in every case in which an employee is injured soon after beginning employment the earnings are irregular.  An employee=s wages are not irregular merely because the job will be of short duration.

 

There was no evidence to indicate that the employee worked an irregular schedule, and the compensation judge=s finding to that effect is clearly erroneous.  The evidence established that the employee was hired to work 40 hours per week, and that she was working an eight-hour plus per day weekday schedule consistent with that intention until her work injury intervened to prevent her from continuing. Pursuant to the calculation of weekly wage set forth in Minn. Stat. ' 176.011, subd. 18, the employee=s weekly wage should have been found to have been $400.00, based on her daily wage of $80.00 (representing an eight-hour day at her hourly rate of $10.00 per hour) times the anticipated five days of work per week in this job.  We reverse the compensation judge=s finding of a weekly wage of $172.50 and substitute $400.00 as the weekly wage.^[1]