ROBERTA SCHOENBORN, Employee/Appellant, v. SOFTPAC INDUS., INC., and ATLANTIC MUT. COS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 20, 2005

 

No. WC04-341

 

HEADNOTES

 

WAGES - IRREGULAR.  Where the employee=s wage was clearly irregular prior to her work injury, and where there was evidence indicating that the employee was working only temporarily at a higher-paying job on the date of her injury, the compensation judge did not err in basing the employee=s weekly wage on earnings during the 26-week pre-injury period.

 

Affirmed.

 

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

Compensation Judge:  Cheryl LeClair-Sommer

 

Attorneys:  Thomas A. Klint, and William J. Marshall, Babcock, Neilson, Mannella, Klint, Anoka, MN, for the Appellant.  William M. Topka and Inger Hansen-Corona, Erstad & Riemer, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision as to weekly wage.  We affirm.

 

BACKGROUND

 

The employee began working for SoftPac Industries, Inc. [the employer], in May of 2002, running and maintaining what is known as a ATake-over@ machine, on a production line.  She worked the first shift, earning $11.48 an hour with a raise to $12.11 an hour in October of 2002.  Overtime was variable but frequent.

 

In November of 2002, the employee took a voluntary layoff from her job.  When she was called back to work in early March of the following year, the employee accepted a job assignment on the second shift.  The employee testified that she was again assigned to work at a ATake-over@ machine; however, Michael Porter, the employee=s production manager, testified that the employee was recalled to work at a APouch Stacker@ position, a job with lower pay, because the employee had informed the employer prior to layoff that she did not want to go back to the ATake-over@ job.  According to Mr. Porter, the employee had said that the ATake-over@ position was Atoo much for her,@ requiring a substantial amount of bending, crawling, and ladder climbing.  Mr. Porter further testified that, notwithstanding her preference for other work, the employee did move back to the ATake-over@ job shortly after the recall, to fill in for another employee on a temporary basis.

 

On March 25, 2003, about three weeks after being recalled to her job with the employer, the employee sustained a work-related injury to her low back.  During that three-week pre-injury period, the employee had been earning $12.85 an hour, which she testified had included a shift differential of fifty cents an hour.  The employee had also averaged somewhat more overtime during this period than in the weeks immediately preceding her layoff the prior November.

 

The matter came on for hearing before a compensation judge on September 28, 2004, for resolution of various issues, including weekly wage.  In the finding relevant to this appeal, the judge concluded that the employee=s weekly wage on the date of injury was $658.82.  The employee appeals.

 

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 (2004).  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).

 

DECISION

 

Weekly and daily wage calculations are governed by statute.  Pursuant to Minn. Stat. ' 176.011, subd. 3,

 

Subd. 3.  Daily wage.  ADaily wage@ means the daily wage of the employee in the employment engaged in at the time of injury but does not include tips and gratuities paid directly to an employee by a customer of the employer and not accounted for by the employee to the employer.  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 of wages, vacation pay, and holiday pay the employee actually earned in such employment in the last 26 weeks, by the total number of days in which such wages, vacation pay, and holiday pay was earned. . . .

 

(Emphasis added).  Weekly wage is then generally determined by multiplying the daily wage by the number of days normally worked.  Minn. Stat. ' 176.011, subd. 18.

 

In the present case, it is essentially undisputed that the employee=s wage in the 26-week pre-injury period was Airregular,@ in that the employee=s hourly wage and overtime pay varied.  In the 26-week pre-injury period, the employee=s wage information is, in reverse chronological order, as follows:^[1]

 

	Week of:	Reg. Hrs.	OT Hours	Hours Worked	Regular	Overtime	Gross Wages
1	03/17/03	40	15.00	55.00	$12.85	$19.28	$   803.13
2	03/10/03	40	10.75	50.75	$12.85	$19.28	$   721.21
3	03/03/03	40	13.50	53.50	$12.85	$19.28	$   774.21
4	02/24/03	0	0	-			$    -
5	02/17/03	0	0	-			$    -
6	02/10/03	0	0	-			$    -
7	02/03/03	0	0	-			$    -
8	01/27/03	0	0	-			$    -
9	01/20/03	0	0	-			$    -
10	01/13/03	0	0	-			$    -
11	01/06/03	0	0	-			$    -
12	12/30/02	0	0	-			$    -
13	12/23/02	0	0	-			$    -
14	12/16/02	0	0	-			$    -
15	12/09/02	0	0	-			$    -
16	12/02/02	0	0	-			$    -
17	11/25/02	0	0	-			$    -
18	11/18/02	0	0	-			$    -
19	11/04/02	0	0	-			$    -
20	10/28/02	40	0.75	40.75	$12.11	$18.17	$   498.02
21	10/21/02	0	0	-	$11.48	$17.22	$    -
22	10/14/02	0	0	-	$11.48	$17.22	$    -
23	10/07/02	40	3.00	43.00	$11.48	$17.22	$   510.86
24	09/30/02	40	14.25	54.25	$11.48	$17.22	$   704.59
25	09/23/03	40	13.25	53.25	$11.48	$17.22	$   687.37
26	09/16/03	40	6.50	46.50	$11.48	$17.22	$   571.13
	TOTAL						$  5,270.52

 

There is no evidence in the record establishing how many days the employee worked in the 26-week pre-injury period.  Therefore, in determining the employee=s weekly wage, the compensation judge added together the employee=s total earnings from the 8 weeks the employee actually worked in the 26-week pre-injury period and then divided by 8, arriving at a weekly wage figure of $658.82.  Where the record fails to include information necessary to calculate daily and weekly wage as specified by the statute, the judge may use another calculation method, as long as use of that method results in a figure that fairly represents the employee=s earning capacity on the date of injury.  See, e.g., Brunkow v. Red Wing Shoe Co., 43 W.C.D. 232 (W.C.C.A. 1990).

 

On appeal, the employee contends that the judge erred in including earnings from work prior to the employee=s voluntary layoff, arguing that the judge=s use of those earnings results in an unfair underestimation of the employee=s lost earning capacity.  The employee=s position is not entirely without merit, in that the employee was earning more on the date of injury, in part because of the shift differential and in part because of overtime, than she had earned prior to the layoff.  However, there are other factors that support the judge=s decision.

 

Mr. Porter, the employee=s production manager, testified that the employee=s return to the ATake-over@ job was only temporary, that the employee was only going to stay in that position until the employer found another worker to fill the job, and that, because the employee had indicated, prior to layoff, that she did not want to do the ATake-over@ operator job any longer, the employer had actually offered the employee a position as APouch Stacker,@ which paid less than the ATake-over@ job.  While the employee suggested that she intended to stay both on the second shift and in the ATake-over@ job assignment, the compensation judge was not required to accept her testimony to that effect.  See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  There is also no evidence indicating just why the employee worked more overtime during the three weeks following her recall than she had worked prior to the voluntary layoff.  Under these circumstances, it was not unreasonable for the judge to have concluded that using only the three-week pre-injury wage information would Aunfairly skew the results.@

 

Pursuant to statute, wage computations for an employee with irregular earnings are generally based on the 26-week pre-injury period.  Minn. Stat. ' 176.011, subds. 1 and 3; Hansford v. Berger Transfer, 46 W.C.D. 303 (W.C.C.A. 1991).  While there is an argument here that the employee=s post-recall work is analogous to a new job, meaning that only the wages from that work should be considered for weekly wage purposes, case law cautions that 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.@  Bradley v. Vic=s Welding, 405 N.W.2d 243, 246, 39 W.C.D. 921, 924 (Minn. 1987).  Given that the record reasonably supports the conclusion that the employee was working only temporarily at a higher-paying job on the date of her injury, and given that the employee=s wage was clearly irregular, we cannot conclude that the judge erred in basing the employee=s weekly wage on total earnings during the 26-week pre-injury period.  We therefore affirm the judge=s decision to this effect.  See also Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985) (the object of a 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@).