The employer and insurer appeal from the compensation judge’s decision as to weekly wage, the employee’s post-injury earning capacity, and the employee’s entitlement to temporary total and temporary partial disability benefits.  We affirm.

The employee and his wife have owned and operated Paul Bunyan Tree Service, a tree trimming and removal business, since about 1987.  The employee performed all of the tree service work while his wife managed the business, maintaining the books and performing various office tasks, including keeping track of when tree work was performed and how much pay they received for the jobs.  Both the employee and his wife gave potential clients cost estimates for proposed tree work.  The business was seasonal, beginning in about March and continuing into November, depending on the weather.  The weather also affected the employee’s work schedule during the tree-trimming season.

The employee and his wife took no set salary prior to 2012, instead dividing what was left over from receipts after business expenses were paid.  The couple spent the off-season winter months in the south, usually Arizona.  According to the tax returns submitted into evidence, income from the business ranged from $18,637 in 2007 to $48,213 in 2011.

On October 18, 2011, the employee sustained a work-related injury to his shoulder while removing an elm tree.  The business’s workers’ compensation insurer accepted liability and began paying the employee benefits based on an alleged weekly wage of $900.00.

The employee was unable to perform his usual tree work due to the effects of his injury, and he and his wife were ultimately forced to hire another tree trimmer to take over most of the physical activities.  They initially paid that trimmer $200.00 per day for each day worked, but, after a few months, the trimmer sought and received a change in pay to $1,000 per week, regardless of the days worked.  At about the same time, the employee began paying himself a salary of $100.00 a week for estimating and supervising the trimmer, and the employee’s wife began receiving $300.00 a week.  The employee and his wife testified that their accountant had advised them to pay themselves wages for Social Security eligibility purposes.

The insurer filed a notice of intention to discontinue benefits in November 2012, alleging that the employee had failed to provide any documentation supporting the claimed wage of $900.00 per week and also that the employee was not entitled to temporary total disability benefits because he had returned to work for the tree business.  The matter ultimately came on for hearing before the compensation judge in May of 2013 for resolution of several issues, including the employee’s weekly wage on the date of injury, the employee’s entitlement to wage loss benefits after November 17, 2012, and whether there had been an underpayment or overpayment of wage loss benefits from the date of injury through November 16, 2012.^[1]  Evidence included the employee’s medical and rehabilitation records, tax and business records, and the report of Jennifer Schiefert, a CPA hired by the employer to analyze the employee’s business and tax records for purposes of resolving the weekly wage and wage loss benefit calculation issues.  The employee and his wife were the only witnesses to testify at hearing.

In a decision filed on December 31, 2013, the compensation judge concluded that the employee’s weekly wage on the date of injury was $1,000.00 and that the employee’s post-injury wage of $100.00 per week should be used to calculate temporary partial disability benefits for weeks in which the employee received that pay.  The insurer appeals.

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 (2012).  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).

The compensation judge concluded that the employee’s weekly wage on the date of injury was $1,000.00, finding,

On appeal, the insurer argues in part that the compensation judge erred in concluding that the employee’s work was “seasonal” as specified by Minn. Stat. § 176.011, subd. 8a, and that the judge therefore erred in multiplying the imputed $200.00 daily wage by five.  In support of this argument, the insurer cites Newbauer v. Pepsi Bottling Co., 43 W.C.D. 339 (W.C.C.A. 1990).  Newbauer, however, dealt with an employee who held two jobs on the date of injury, and the issue there was whether and, if so how, to use his earnings from his lawn care job in addition to the job he held and was injured in with the employer.  The compensation judge in that case did not include the lawn care earnings because the employee’s injury with the employer occurred in March, when the employee was not performing the lawn care work.  The Workers’ Compensation Court of Appeals reversed and held that the lawn care earnings were nevertheless includable in calculating the employee’s wage.  The court went on to reject a seasonal wage analysis and instead divided the employee’s net lawn care earnings for the year by 52, then added the result to the employee’s weekly wage for the employer.

In the present case, unlike Newbauer, the employee worked only one job, and Newbauer did not involve use of any kind of imputed wage or earnings.  We would also note that the Workers’ Compensation Court of Appeals rejected the seasonal wage calculation in Newbauer with little discussion, and it was not by any means the primary issue there.  Furthermore, it is evident to us that the court in Newbauer was simply trying to employ the most reasonable method, on the evidence submitted there, of determining the “fair approximation of [the employee’s] probable future earning power, which has been impaired or destroyed because of the injury.”  Newbauer, 43 W.C.D. at 343 (quoting Bradley v. Vic’s Welding, 405 N.W.2d 203, 245-46, 39 W.C.D. 921, 924 (Minn. 1987) (further quotation omitted)).  We see nothing in Newbauer suggesting that the court intended to mandate any particular wage calculation method in all similar cases.

The insurer also contends that the compensation judge should have averaged the employee’s earnings over several years, rather than using earnings only from 2011, the year in which the employee was injured.  The insurer further alleges that the yearly earnings of the business should in any event be divided evenly in two when calculating the employee’s wage, to reflect his wife’s work and their equal “split” of the company’s net profit.  In general, however, the statute contemplates calculation of an employee’s weekly wage based on relatively recent earnings.^[2]  In some cases the court has approved use of a yearly average, but the insurer has cited no cases requiring such a calculation, and the insurer has also failed to explain just how many years should be included under their preferred approach, and why.  Moreover, again, the compensation judge in the end did not base his wage calculation on the net earnings of the business in 2011 but instead on what the employee and his wife ended up having to pay another tree trimmer.  An imputed wage may not be used if the business earnings are insufficient to pay that wage.  See, e.g., Egan v. Shannon’s Plbg & Htg., 61 W.C.D. 580 (W.C.C.A. 2001).  Here, however, the employee and his wife earned some profit even after they began paying the new hire $1,000.00 per week to do the skilled and difficult work the employee is no longer able to perform.  We would also note that the insurer did not submit any evidence suggesting that the newly hired trimmer is overpaid.

Self-employment nearly always raises difficult wage-related issues.  Hansford v. Berger Transfer, 46 W.C.D. 303 (W.C.C.A. 1991).  Where the evidence is inadequate to allow the compensation judge to compute an employee’s weekly wage pursuant to Minn. Stat. § 176.011, subds 8a and 18, the judge may use another method that reasonably reflects the employee’s loss of earning capacity.  Id.  The judge in the present case could perhaps have employed a different method and reached a different result, but, given the evidence submitted, we cannot conclude that the judge’s choice was unreasonable.  We therefore affirm the judge’s decision as to weekly wage.

The compensation judge directed the insurer to pay the employee temporary partial disability benefits based on the $100.00 per week salary he began taking after he hired the new tree trimmer.  The insurer argues that the compensation judge’s decision as to post-injury earning capacity constituted an improper expansion of the issues in that “at no time was it indicated that the issue of the employee’s post-injury earning capacity was an issue presented for determination.”  This argument has no merit.

“Basic fairness requires that the parties . . . be afforded reasonable notice and opportunity to heard” before benefit decisions are made.  Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 984, 40 W.C.D. 869, 872 (Minn. 1988).  Here, the compensation judge was asked to determine whether the employee was entitled to wage loss benefits through the date of hearing and whether the employee had been either overpaid or underpaid wage loss benefits from the date of injury through November 16, 2012.  It is difficult to see how the judge could have decided either issue without reference to the employee’s post-injury earnings or earning capacity.  We also note that, according to her report, the insurer’s accounting expert was asked to calculate the employee’s “wage loss or loss of earnings capacity for 2012,” the year after the injury, and the expert in fact concluded that the employee’s “average weekly wage for 2012 is $195.”  Clearly the compensation judge did not improperly expand the issues by making a decision as to the employee’s post-injury earning capacity.

The insurer also argues that the judge’s $100.00 earning capacity decision is unsupported by substantial evidence.  However, as previously indicated, the insurer’s own expert set the employee’s weekly 2012 earnings at only $195.00.  The employee is performing much less work than he performed prior to the injury, and it is inferable that the salary paid to the substitute tree trimmer significantly reduced the funds available to pay either the employee or his wife.  Under these circumstances, the judge could reasonably conclude that the insurer failed to rebut the presumption of earning capacity raised by the employee’s actual earnings.  See Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960).  At least through the hearing date, based on the evidence submitted, the compensation judge did not err in awarding wage loss benefits calculated based on the $100.00 weekly salary the employee paid himself.

The insurer argues, finally, that the record does not support the compensation judge’s “implied” conclusion that the employee conducted a reasonably diligent job search so as to establish entitlement to wage loss benefits.  See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  This argument also lacks merit.  We see nothing whatsoever in the record to indicate that job search was raised as a defense to the employee’s wage loss benefit claim or for any other purpose.  In any event, the employee had rehabilitation assistance, so, for purposes of eligibility for wage loss benefits, the issue was more whether the employee cooperated with his QRC and rehabilitation plan.  See Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).  There is no allegation of any lack of cooperation here.  No further discussion of this issue is warranted.  The judge’s decision is affirmed in its entirety.