MICHAEL G. RICKE, Employee, v. PLANTENBERG=S MARKET, INC., and RAM MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 22, 2008

 

No. WC07-225

 

HEADNOTES

 

WAGES - MULTIPLE EMPLOYMENTS; WAGES - VOLUNTEER FIREFIGHTER.  The employee was not a Aregular employee@ and the compensation judge erred, in calculating the employee=s weekly wage, by including income from the city of Richmond, Minnesota, where the employee received $500.00 for the year as the volunteer fire chief and emergency services manager for the city.  Substantial evidence supports the finding that the employee was Aregularly employed@ by St. Cloud Technical College, and the compensation judge properly included earnings from the college, where the employee had taught courses at the college since 2000, had earnings in 13 of the 26 weeks prior to his injury, was paid $20.00 per hour for teaching, and as a lead instructor was given first opportunity to teach the courses he wanted.

 

WAGES - CALCULATION.  Where the necessary evidence was available, the compensation judge properly computed the employee=s weekly wage from St. Cloud Technical College using the statutory method set forth in Minn. Stat. ' 176.011, subds. (3) and (18).

 

Affirmed in part and reversed in part.

 

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

Compensation Judge: Peggy A. Brenden

 

Attorneys: Gregory S. Walz, Walz Law Offices, St. Cloud, MN, for the Respondent.  Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s inclusion of earnings from the city of Richmond, Minnesota, and from St. Cloud Technical College in the computation of the employee=s weekly wage.  We affirm in part and reverse in part.

 

BACKGROUND

 

On March 6, 2002, Michael G. Ricke, the employee, sustained an injury to his right hand that arose out of and in the course of his employment at Plantenberg=s Market, Inc.  The employer and its insurer, RAM Mutual Insurance Company, admitted liability for the employee=s personal injury.  The employee=s weekly wage from this employment was $549.21 a week.

 

On the date of injury, the employee was also assistant fire chief and director of emergency management for the city of Richmond, Minnesota.  The employee was paid $500.00 a year for his services.  The compensation judge found the employee was regularly employed by the city on March 6, 2002, with a weekly wage of $9.62 a week ($500.00 ) 52 = $9.62).

 

In 2001 and 2002, the employee also taught courses at St. Cloud Technical College for which he was paid $20.00 an hour.  During the 26 weeks prior to his personal injury, the employee earned income from the college during 13 weeks.  The compensation judge found the employee was regularly employed by St. Cloud Technical College as of March 6, 2002, and computed the employee=s wage at the college by dividing the total wages earned, $1,795.00, by the number of days worked, 21 days, to yield a daily wage of $85.48.  The compensation judge computed the weekly wage by dividing the number of days worked, 21 days, by the number of weeks worked, 14 weeks, times the daily wage of $85.48 which yielded a weekly wage of $128.22.

 

The compensation judge found the employee=s weekly wage on March 6, 2002 was $687.05 based on his earnings with the employer together with his earnings from Richmond, Minnesota, and St. Cloud Technical College ($549.21 + $9.62 + $128.22 = $687.05).  The employer and insurer appeal.

 

DECISION

 

1.  Regular Employment

 

Minn. Stat. ' 176.011, subd. 3, provides that A[i]f, at the time of injury, the employee was regularly employed by two or more employers, the employee=s earnings in all such employments shall be included in the computation of daily wage.@  The phrase Aregularly employed@ also appears in Minn. Stat. ' 176.011, subd. 18.  The employer and insurer contend the employee was not regularly employed by either the city of Richmond, Minnesota, or St. Cloud Technical College, and the compensation judge erred in including the amounts paid by these entities in computing the employee=s weekly wage.

 

The phrase Aregularly employed@ is not defined in the statute.  In McSherry v. City of St. Paul, 202 Minn. 102, 277 N.W. 541 (1938), the Minnesota Supreme Court, referring to workers= compensation cases, distinguished Aregular@ employment from Acasual@ employment, stating:

 

The question whether an employment is casual must be determined with principal reference to the scope and purpose of the hiring, rather than with sole regard to the duration and regularity of the service.  *  *  *  When there is a continuing engagement to serve the employer in his business at such times as the particular and essential service may be needed, the employment is not >casual= according to any of the judicial definitions of that term (citation omitted).  . . . And as to whether the employment was casual or regular depends upon the nature of the service rendered by the employe[e] and not upon [the] duration or frequency of his employment (citations omitted).

 

In an earlier workers= compensation case, Billmayer v. Standford,11 Minn. 465, 225 N.W. 426, 5 W.C.D. 242 (1929), the supreme court similarly wrestled with the question of how to define casual, as opposed to regular, employment, stating:

 

What is casual employment?  Experience teaches that no exact definition of the term is advisable.  Our first thought of the term is that it indicates something which comes without regularity and is occasional and incidental.  Its antonyms are Aregular,@ Acertain,@ Aperiodic,@ and Asystematic.@  A thing is casual when it comes without regularity and is of comparatively minor importance.  It is usually temporary and of short duration, where the employment cannot be characterized as permanent or periodically regular, but occurs by chance, or with the intention and understanding on the part of both employer and employe[e] that it shall not be continuous; it is casual.

 

This court, in Newbauer v. Pepsi Bottling Group, 43 W.C.D. 339 (W.C.C.A. 1990), stated that Aregular@ means, in common parlance, Asteady or uniform in course, practice or occurrence, not subject to unexplained or irrational variation@ and Areturning, recurring, or received at stated, fixed or uniform intervals.@  Id. at 342 (quoting Webster=s International Dictionary, 1913 (3rd ed.1966)).

 

2.  City of Richmond

 

The employer and insurer contend the employee was a volunteer, not a regular employee, of the city of Richmond, Minnesota, and the compensation judge should not have included the imputed wage or stipend paid to the employee by the city in computing the weekly wage.  We agree.

 

In Johnson v. City of Plainview, 431 N.W. 2d 109, 41 W.C.D. 450 (Minn. 1998), the employee, a volunteer firefighter, was paid $180.50 over a period of six months.  There was testimony this money was intended as reimbursement for expenses.  The supreme court noted,  A[t]he small amount Johnson received . . . could not begin to fully compensate him for all his firefighting efforts and must be considered mere reimbursement for expenses, based on the record here.@  Id. at 113, 41 W.C.D. at 455.  Noting that Minn. Stat. '  176.011, subd. 3, allows combined earnings only when the employee was Aregularly employed@ by two or more employers at the time of injury, the supreme court held Johnson was not a Aregular employee@ of the Plainview Fire Department and reversed the compensation judge=s weekly wage calculation.^[1]

 

In this case, the employee was on-call for the city of Richmond and was paged in the event of a fire or other emergency.  In addition, the employee attended monthly training sessions.  The employee testified  he spent approximately 250 to 300 hours a year performing these duties for which he was paid $500.00.  The employee testified he was a volunteer for the city and received no pay for the time he spent when out on a call.  As in Johnson, this small payment could not begin to fully compensate the employee for the time he spent on behalf of the city.  We conclude the employee was a volunteer who performed emergency services and was not a regular employee of the city of Richmond.  Accordingly, the $500.00 payment from Richmond, Minnesota, may not be combined with the employee=s earnings from the employer in computing his weekly wage.  See also Boelter v. City of Ham Lake, 46 W.C.D. 214 (W.C.C.A. 1991), aff=d, 481 N.W.2d 50, 46 W.C.D. 220 (Minn. 1992).  We, therefore, reverse that portion of the compensation judge=s decision.

 

3.  St. Cloud Technical College

 

The employer and insurer contend the employee was not regularly employed at St. Cloud Technical College and the compensation judge erred in including his earnings from the college in computing the employee=s weekly wage.  We are not persuaded.

 

Determination of whether an employee was Aregularly employed@ is a question of fact and must be affirmed if supported by substantial evidence.  See, e.g., Hormann v. Evangelical Lutheran Good Samaritan Ctr., slip op. (W.C.C.A. Feb. 2, 2001); Freeney v. Minnesota Arena Football, slip op. (W.C.C.A. Oct. 20, 1998); Brown v. Boxers Grill & Party Pub, slip op. (W.C.C.A. Mar. 31, 1998).  Income from other employment in which an employee was engaged on a recurring basis may be included in the wage calculation so long as the employment was regular in the sense that, in light of the history, scope and purpose of the employment, such employment and earnings would likely recur or continue on an ongoing basis.  See Beissel v. Marschall Line, Inc., 58 W.C.D. 470 (W.C.C.A. 1998); compare Hormann, id. (on-call nurse); Fletcher v. Labor Force/Labor Finders-MN, slip op. (W.C.C.A. June 20) (as-available work from temporary employment agencies).

 

The employee testified he had been teaching courses at St. Cloud Technical College since at least the year 2000.  He stated the college periodically scheduled firefighting or car extrication classes that lasted from two to three weeks.  The college would contact the employee and other instructors as needed to teach the classes.  Occasionally, the employee would receive a call from another instructor asking him to fill in when that instructor was not available.  The employee acknowledged the classes were not regularly scheduled.  The employee stated, however, he was a lead instructor and the college gave him the first opportunity to teach the classes he wanted.  The employee was paid $20.00 per hour to teach.  The employee submitted evidence of his earnings from St. Cloud Technical College for the 26 weeks prior to his personal injury during which time he earned income during 13 weeks.

 

We acknowledge that a different inference could be drawn in this case.^[2]  However, the employee sought and obtained recurring teaching assignments at St. Cloud Technical College over a number of years.  In other words, Athere [was] a continuing engagement to serve the employer in his business at such times as the particular and essential service [was] needed.@  McSherry at 545.  Based upon these facts, the compensation judge could reasonably conclude the employment with St. Cloud Technical College was regular and not casual.  The compensation judge=s inclusion of the employee=s earnings from this employment in the weekly wage calculation is, accordingly, affirmed.

 

4.  Wage Calculation

 

The appellants additionally argue the compensation judge erred in the method used to calculate the weekly wage at St. Cloud Technical College.  The compensation judge computed the weekly wage in accordance with Minn. Stat. ' 176.011, subds. (3) and (18).  The employer and insurer contend the statutory method of wage calculation overstates the employee=s earnings at the college and assert the correct computation is to divide the employee=s total earnings during the 26 weeks prior to the personal injury by 26, which yields a wage of $68.64 per week.  The appellants ask this court to modify the compensation judge=s wage calculation.

 

The appellants cite Hafner v. Glenwood Liberty Serv. Ctr., 42 W.C.D. 16 (W.C.C.A. 1989), for the proposition that in the case of multiple employments the weekly wage calculation involves adding together the total wages earned at both jobs and dividing the total by the number of weeks worked.  In Hafner, this court affirmed the compensation judge=s use of an averaging formula to compute the weekly wage.  The case, however, does not stand for the proposition that an averaging formula must always be used in cases of multiple employments.  Rather, except where  the evidence necessary to comply with the statute is not available, as a general rule, the statutory formula for determining daily and weekly wage must be used.  See Straley v. World Book Educ. Prods., 50 W.C.D. 370 (W.C.C.A. 1994).

 

Pursuant to Minn. Stat. '  176.011, subd. (3), if the daily wage was irregular or the employment less than full time, the daily wage is computed by dividing the total earnings over the last 26 weeks by the total number of days in which the wages were earned.  The compensation judge divided the employee=s total earnings over the prior 26 weeks, $1,795.00, by 21, the number of days worked within that 26 week period.  That computation yields a daily wage of $85.48.  The weekly wage is determined by multiplying the daily wage by the Anumber of days and fractional days normally worked.@  If the employee worked less than 5 days a week, Athe number of days normally worked shall be computed by dividing the total number of days in which the employee actually performed any of the duties of the employment in the last 26 weeks by the number of weeks in which the employee actually performed such duties.@  Minn. Stat. ' 176.011, subd. (18).  In the 26 weeks prior to his injury, the employee worked 21 days over 14 weeks.  The number of days normally worked by the employee was 21 divided by 14, which equals 1.5, which, when multiplied by the daily wage of $85.48, yields a weekly wage of $128.22.  The compensation judge properly used the statutory formula for determining the employee=s wages in both employments and that decision is affirmed.