KEITH C. COY, Employee/Appellant, v. EQUIPMENT OUTLET, INC., and AUTO OWNERS INS., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 15, 2008
No. WC08-182
HEADNOTES
WAGES - MULTIPLE EMPLOYMENTS. Substantial evidence supports the compensation judge’s determination that the employee’s income from self-employment was not regular and was not includable in the weekly wage calculation.
Affirmed.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Ruth M. Harvey, Chesley, Kroon, Harvey & Carpenter, Mankato, MN, for the Appellant. Jennifer M. Gibson, Cousineau McGuire, Minneapolis, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s exclusion of income from self-employment in determining his weekly wage on the date of injury. We affirm.
BACKGROUND
The employee sustained a work injury on June 6, 2007, while employed at Equipment Outlet. The only question for the compensation judge at the hearing was whether certain income should be included or excluded in the calculation of the wage on the date of injury.
The employee worked as a laborer for Equipment Outlet. The company builds agricultural buildings and also installs equipment such as feed systems in the buildings. The employee began working for the company on April 25, 2007, at a rate of $20.00 an hour. The employee testified that he worked for Equipment Outlet a “day here or there” and never worked there three days in a row. The parties stipulated that the employee earned $990.00 in the 5.6 weeks that he worked there for a weekly wage of $176.79.
During the time he worked for Equipment Outlet, the employee also worked for Sonnek Repair, a subcontractor of Equipment Outlet. The employee testified he was a partner with Peter Sonnek and Chad Young in this company. The employee received two checks totaling $970.00 for 47.5 hours of work. The compensation judge included this income in the wage calculation. Inclusion of this income is not in dispute on appeal.
The employee also did some repair work at Peter Sonnek’s house in May 2007. He replaced windows and received $720.00 in a personal check from Peter Sonnek. The compensation judge did not include this payment in the wage calculation. While the employee appealed the compensation judge’s determination on this issue, it was not addressed in the employee’s brief and is considered waived. Minn. R. 9800.0900, subp. 1.
The income in dispute on appeal relates to self-employment income received by the employee in 2007 as Coy’s Machining and Repair. The employee testified that he had done different types of work under this name for a number of years. He stopped this self-employment in 2001 but started looking for work again “right after the first of the year in 2007.”
According to the employee and the checks he received, he had three jobs in 2007 for Coy’s Machining and Repair. He did some work at a home installing ceiling tiles. He testified that he worked eight hours one day and four hours the next day, which was the day he was paid. He received a check for $300.00 on May 1.
The employee also took delivery of two motorcycles to be repaired. Receipt of the motorcycles was sometime in January. The employee was unable to say when he began working on them but thought it was after it started warming up in March or April because his work area was unheated. The employee did not testify as to how many hours he spent on the motorcycle repair projects or when he did the work.
He was paid $650.00 for one repair on May 26 and $1,200.00 for the other repair on June 2. Some additional services in the form of breaking in one of the motorcycles remained undone as of the date of payment. The employee stated that his customers paid for the needed parts and that he did not believe he had any costs to be deducted from his payments. No tax return for 2007 had been filed by the employee as of the date of hearing, March 26, 2008. The employee entered his 2006 tax return into evidence. It showed $8,946.00 in wages. The employee testified that he had no other work lined up for Coy’s Machining after the motorcycle repairs were done.
The compensation judge did not include any income from Coy’s Machining and Repair in the wage calculation. The employee appeals.
DECISION
Minn. Stat. § 176.011, subd. 18, provides that when an employee is “regularly employed by two or more employers, the days of work for all such employments shall be included in the computation of weekly wage.” The compensation judge denied the employee’s request to include his self-employment income from Coy’s Machining and Repair because she concluded that there was insufficient evidence of the hours and days worked to include these amounts as regular employment.
Determining whether or not an employee is “regularly employed” is a question of fact for the compensation judge. Ricke v. Plantenberg’s Market, Inc., No. WC07-225 (W.C.C.A. Apr. 22, 2008). The question for this court is whether substantial evidence supports the compensation judge’s determination on this issue. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235, (Minn. 1984).
In his brief, the employee argues that his self-employment was regular and contends that he actually spent more time in his self-employment endeavors in 2007 than he did working for Equipment Outlet and Sonnek Repair. According to the employee’s brief, he put in over 130 hours in the work he did for Coy’s Machining and Repair during the same period he worked for Equipment Outlet. This argument is based on an assumption that the payments he received for Coy’s Machining represented a “wage” of $25.00 per hour.
As the employer and insurer point out, however, there was no testimony by the employee that the payments represented any hourly rate. Further, the employee was unable to date when he did the motorcycle repair work and provided no evidence about how many hours he spent in his work. The employee also testified that he did not have any other work scheduled for Coy’s Machining and Repair.
In Raisch v. Fortuna Farms, slip op. (W.C.C.A. Nov. 15, 1999), this court affirmed a compensation judge’s finding that self-employment was not regular when the employee, a member of a musical band, was not able to establish that he would have continued to earn income from his self-employment into the future. In Raisch, the employee had earned over $13,000.00 as a musician in the year before his injury. In the present case, Coy’s Machining was not in operation for a number of years before 2007 and, other than the three jobs he did as Coy’s Machining, there was no evidence of other work.
The purpose of a wage determination is to arrive at a fair approximation of the employee’s earning capacity as of the time of injury. Sawczuk v. Special Sch. Dist. 1, 312 N.W.2d 435, 34 W.C.D. 282 (Minn. 1981). The employee’s income from wages as reported on his 2006 tax return was $8,946.00. The employee claims a wage on June 6, 2007 of $862.50 which corresponds to a yearly wage income of $44,850.00. We see no evidence in the record as to why the employee’s earning capacity would vary so much from one year to the next.
We conclude substantial evidence exists to support the compensation judge’s decision.