The employee appeals from the compensation judge’s finding that the employee was not entitled to recommencement of temporary total disability benefits.  The employer and insurer appeal from the judge’s finding as to weekly wage.  We affirm in part, reverse in part, and remand the matter to the compensation judge for further proceedings consistent with this decision.

The employee was employed by TNT Floor Sanding [the employer] on September 12, 2009, working what was to be a one-day job, laying out a wood floor in a home.  The employee was to be paid $15 an hour for what the employee assumed would be a twelve- to thirteen-hour day.  The employee sustained an admitted injury to his left hand after about four hours of work.  The employer paid the employee $200 for his work that day.^[1]

Dr. Andrew Staiger performed surgery on the employee’s left hand on September 18, 2009.^[2]  On November 3, 2009, Dr. Staiger noted that the employee had dense scar tissue in the area of his injury and that he required continued physical therapy, including ultrasound and range of motion exercises.  The doctor also performed a corticosteroid injection on that date but noted that, “at this point, [the employee] should be able to return to work without restrictions.”  The employee did not return to work, but he collected unemployment benefits, which he had also been receiving prior to his September 12, 2009, injury.^[3]  The employer and insurer paid temporary total disability benefits from September 13, 2009, through November 9, 2009, at the rate of $133.33 per week.

The employee received ongoing physical therapy from November 3, 2009, through January 4, 2010.  Dr. Staiger subsequently performed additional surgeries on the employee’s left hand on January 25, 2010,^[4] and February 4, 2010.^[5]  On March 19, 2010, the employee asked Dr. Staiger to release him to work without restrictions.  Dr. Staiger agreed to do so but informed the employee that “he needs to be careful with heavy grasping over the next 6 weeks.”  The employee apparently returned to work with a new employer on April 13, 2010.

On October 15, 2009, the employee filed a claim petition alleging an average weekly wage of $1000 and seeking compensation for an underpayment of temporary total disability benefits.  He subsequently amended the claim to include temporary total disability benefits from January 25, 2010, to April 13, 2010.  The matter proceeded to hearing, and, in a findings and order filed on March 9, 2011, the compensation judge found that the employee’s imputed weekly wage on the date of injury was $1000, based on a daily wage of $200 multiplied by 5, because the employee worked in the construction industry.  The judge agreed that the employee had been underpaid temporary total disability benefits, but she denied the employee’s claim for additional temporary total disability benefits from January 25, 2010, to April 13, 2010.  Both parties appeal.

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 (2010).  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 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).

Minn. Stat. § 176.011, subd. 8a, provides that,

The employer and insurer contend that, because the employee had been hired for only one day’s work and had been unemployed for months preceding his work injury, the compensation judge “erroneously used a strict application of the statutory formula” and should instead have considered alternate methods of calculation that would “more reasonably reflect the employee’s post-injury earning capacity.”  In support of their position on this point, the employer and insurer cite to the case of Johnson v. D.B. Rosenblatt, 265 Minn. 427, 122 N.W.2d 31, 22 W.C.D. 468 (1963), for its holding that, when an employee has only been employed for a very short period, “the wages the employee could have earned may be gauged by the wages paid to one doing similar work.”  Id. at 429, 122 N.W.2d at 33, 22 W.C.D. at 471.

We note initially that the employer and insurer did not argue any “alternative method of calculating average weekly wage” at the time of hearing, except to contend that the employee’s daily wage should be his weekly wage because he was only hired to work the one day.  As such, the only choices presented to the judge were a weekly wage of $200 or a weekly wage of $1000.^[6]

The employer and insurer cite a number of cases in support of their position that a judge may deviate from the statutory method of wage calculation,^[7] claiming that Wright v. Robert Flemal, 48 W.C.D. 551 (W.C.C.A. 1993), is “almost directly on point” and should be controlling.  However, while Wright and other cases have allowed a compensation judge to choose an alternative method of wage calculation for construction workers in certain situations, alternative methods have never been mandated.

The statutory provision governing calculation of weekly wage for employees in the construction industry affords a “simple method for computing the wage basis in the construction industry as full-time employment, rather than averaging the wages over one-half the year.”  Keklah v. Gebert’s Floor Coverings, 511 N.W. 2d 437, 438, 50 W.C.D. 80, 82 (Minn. 1994), citing Clabo v. Bor-Son Constr. Co., 481 N.W.2d 47, 48, 46 W.C.D. 171, 172 (Minn. 1992).  That provision is intended “to factor out the periods of seasonal unemployment and to compensate [employees] as though they were full-time, year round employees.”  Koziolek v. Aconite Corp., 49 W.C.D. 498, 500 (W.C.C.A. 1993).

The object of wage determination is to “arrive at a fair approximation of [the employee’s] probable future earning power which has been impaired or destroyed because of the injury.”  Bradley v. Vic’s Welding, 405 N.W.2d 243, 245-6, 39 W.C.D. 921, 924 (Minn. 1987).  However, this court has affirmed use of the formula even where the resulting imputed wage is greater than the employee’s actual earnings.  Palkowski v. Lakehead Constructors, 57 W.C.D. 21 (W.C.C.A. 1997).  Because the employee had an admitted daily wage of $200 on the date of his work injury, the information necessary for application of the construction industry weekly wage formula was available.  Use of that formula was mandated by the legislature and was intended to factor out periods of reduced work.  We therefore affirm the judge’s decision on this issue.^[8]

The employee received temporary total disability benefits from September 13, 2009, through November 9, 2009.  His benefits were discontinued as of November 9, 2009, based on a medical release to work without restrictions.  On January 25, 2010, before he reached maximum medical improvement [MMI], the employee underwent an additional surgery for his work injury and was again physically disabled from working.  He therefore claimed entitlement to temporary total disability benefits from January 25, 2010, to April 13, 2010.  The employer and insurer argued at hearing that Minn. Stat. § 176.101, subd. 1(e)(2), prohibited the requested recommencement of temporary total disability benefits because the employee was not actively employed at the time he became medically unable to work.^[9]  The compensation judge agreed and denied temporary total disability benefits on that basis.  On appeal, the employee contends that case law allows recommencement of temporary total disability benefits, even though he had not returned to work, because he had not reached MMI as of the time of the new period of disablement.  We agree.

In Hanson v. Team Pers. Servs., Inc., slip op., (W.C.C.A. May 7, 2004), this court noted that Minn. Stat. § 176.101, subd. 1(e)(2), applies to commencement and recommencement of total disability benefits after an employee has reached MMI, and we interpreted Minn. Stat. § 176.101, subd. 1(h), as implying its own recommencement provision.  “In other words, if an employee has been denied temporary total disability benefits because he is released to return to work without work-injury-related restrictions, and if restrictions are subsequently reimposed, the employee once again becomes eligible for temporary total disability benefits at the time of the reimposition of restrictions, so long as restrictions are reimposed prior to 90 days post MMI and prior to payment of 104 weeks of temporary total disability compensation.”  Id.

Hanson is directly on point here, and we therefore reverse the compensation judge’s denial of temporary total disability benefits effective January 25, 2010.^[10]  However, because there appears to be a disagreement as to how long the employee was medically disabled from all work, we remand the matter to the judge for findings as to when temporary total disability benefits should cease.