LORETTA J. (GANSEN) BACH, Employee/Appellant v. UPPER MISSISSIPPI MENTAL HEALTH CTR., SELF-INSURED/NPIA, INC., Employer/Respondent, and MINN. DEP’T OF EMPLOYMENT AND ECON. DEV. and BLUE CROSS BLUE SHIELD, Intervenors.

The employee appeals the compensation judge’s calculation of the employee’s weekly wage at the time of injury. We affirm.

Loretta J. (Gansen) Bach, the employee, began working full time as a chemical dependency counselor at Upper Mississippi Mental Health Center (UMMHC), the employer, in April 2009. The employer was self-insured for workers’ compensation liability. On July 30, 2009, the employee submitted a letter to the employer indicating that she would be resigning as of Friday, August 14, 2009, in order to begin working full time for a different employer, Bell Hill, on the following Monday, August 17, 2009. The employee began working for Bell Hill as planned, but stopped working there because she thought the patient care being provided was inadequate.

On November 10, 2009, the employee returned to part-time work for the employer performing assessments, earning $18.00 per hour. The employee also began working for a startup company called First Step in early November 2009. The employee testified that she was to be paid $18.88 per hour for full-time work at First Step. Her initial work for First Step was unpaid since the company did not have incoming revenue, but the employee testified that she was paid by First Step for two days before December 15, 2009.

The employee planned to stop working for the employer when she began working full time for First Step, and told the employer that she would be resigning again on December 15, 2009. First Step opened on December 15, 2009, and the employee worked there that morning, orienting new employees. Later, she proceeded to the employer for her last shift of work there, beginning at 1:00 p.m. At 12:30 p.m., the employee sustained a low back injury on that date when she fell while retrieving a computer power cord from her car. The employer admitted liability for an injury arising out of and in the course of her employment. The employee continued to work for First Step through February 2010. After leaving First Step, the employee then returned to work for the employer on a part-time basis at $14.00 per hour. First Step is no longer in business and wage records are no longer available for that employment. The employee did not retain her pay records from First Step.

At a hearing on November 2, 2015, the parties litigated various issues regarding the employee’s injury and benefits, including the employee’s weekly wage. The compensation judge found that the employee was not regularly employed by two employers at the time of injury. The judge also found that the employee’s work for the employer before her initial resignation in August 2009 was not relevant to the wage dispute. The judge further noted that there was a lack of objective evidence regarding the amount the employee earned at First Step. The judge based the employee’s weekly wage solely on the five weeks that the employee worked part time for the employer, averaging the total amount earned for the five-week period, resulting in a weekly wage of $331.74. The employee appeals the compensation judge’s determination of her weekly wage.

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(3). 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).

The employee claimed temporary partial disability benefits based on her earnings from First Step and the employer. Entitlement to temporary partial disability benefits is based on the difference between the employee’s weekly wage at the time of the injury and what the employee is able to earn in the employee’s partially disabled condition. Minn. Stat. § 176.101, subd. 2(a). On appeal, the employee argues that her earnings from both First Step and the employer should be included in her wage determination using the statutory weekly wage calculation. “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.’ ” Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985) (quoting Sawczuk v. Special Sch. Dist. No. 1, 312 N.W.2d 435, 437‑38, 34 W.C.D. 282, 287 (Minn. 1981)). As the supreme court has stated, “[w]hile the computation of weekly wage is frequently based upon actual wages, there are various circumstances which make the claimant’s actual earnings during a particular period an unreliable measure of . . . future earning power.” Bradley v. Vic’s Welding, 405 N.W.2d 243, 246, 39 W.C.D. 921, 924 (Minn. 1987). In cases involving unusual factual circumstances, application of the statutory wage calculation may result in a weekly wage which does not fairly reflect the injured employee’s lost earning capacity, and the factfinder may use another reasonable method of wage calculation which results in a fair approximation of that loss. Loberg v. Northome Healthcare Ctr., 57 W.C.D. 113, 119 (W.C.C.A. 1997) (citing Boelter v. City of Ham Lake, 481 N.W.2d 50, 51, 46 W.C.D. 220, 221 (Minn. 1992)), summarily aff’d (Minn. Sept. 22, 1997); see also Decker v. Red Wing Shoe Co., 41 W.C.D. 763, 766 (W.C.C.A. 1988), summarily aff’d (Minn. Mar. 30, 1989).

Where an employee was regularly employed by two or more employers, the employee’s earnings in all such employments are included in calculating the employee’s weekly wage. Minn. Stat. § 176.011, subd. 18 (similar language is used in calculating a daily wage under Minn. Stat. § 176.011, subd. 8a). Earnings from all regular employments are included in determining weekly wage in order to achieve the goal of insuring that the employee is compensated for the loss of earning capacity. See Knotz, 361 N.W.2d at 874, 37 W.C.D. at 455. The compensation judge interpreted “regularly employed” as excluding situations where the employee had a few days of overlapping employment while changing jobs or worked an isolated sporadic day at two jobs. The judge stated that any unpaid work for First Step was irrelevant to the regular employment determination and that the employee’s “unverifiable possibly sporadic day or two of paid work for First Step during the 5 weeks she worked for UMMHC was not regular employment by two employers.” (Finding 9.) The compensation judge found that the employee was not regularly employed by both employers at the time of the injury. The employee asserts that substantial evidence does not support this finding, arguing that she was working for both employers on the date of injury.

The employee argues that she worked regularly for UMMCH from November 10 through December 15, 2009, and that she also worked regularly for First Step from mid-November 2009 through February 2010. The “[d]etermination of whether an employee was ‘regularly employed’ is a question of fact and must be affirmed if supported by substantial evidence.” Ricke v. Plantenberg’s Mkt., Inc., 68 W.C.D. 142, 146 (W.C.C.A. 2008). Employment is regular when, “in light of the history, scope and purpose of the employment, such employment and earnings would likely recur or continue on an ongoing basis.” Id. at 147. The term is used in contrast to “casual” employment. Wages from casual employment, or employment which had become casual or had ended before the injury, are excluded from the weekly wage calculation. Beissel v. Marschall Line, Inc., 58 W.C.D. 470, 474 (W.C.C.A. 1998); see also Hackett v. Walker Outdoor Equip., 47 W.C.D. 14, 21 (W.C.C.A. 1992) (earnings from the employee’s second employment which had ended permanently before the date of injury excluded from the wage calculation), summarily aff’d (Minn. July 2, 1992).

On the date of injury, the employee was performing work for both employers. The statute states that where an employee is regularly employed by two or more employers at the time of injury, earnings from all employments are included in determining the employee’s weekly wage. The statute does not require the employee to have worked for any specific length of time in order to be considered regularly employed. In this case, it is uncontroverted that the employee was not intending to work both jobs at the same time once she began working full time for First Step, but was apparently trying to maintain full-time hours while working at both jobs until that occurred. The compensation judge, however, did not accept the employee’s testimony that she was being paid by First Step while she was working for the employer. The judge stated that the employee’s claims were unverifiable since there was no objective evidence regarding the dates of work or wages paid by First Step. The judge found that the employee was not able to prove that she was being paid by First Step on the date of injury. There are no wage records or pay stubs from the employee’s work for First Step in the record. Without wage records, the judge was not unreasonable in declining to consider the employee’s alleged earnings from First Step in making the wage determination.

Pursuant to statute, wage computations for an employee with irregular earnings are generally based on the 26-week pre-injury period where the employee’s weekly wage is calculated by multiplying the daily wage, as defined by Minn. Stat. § 176.011, subd. 8a, by the number of days and fractional days normally worked at the employer for the employment involved. Minn. Stat. § 176.011, subd. 18. The employee has the burden of proof in establishing entitlement to workers’ compensation benefits by a preponderance of the evidence. Minn. Stat. § 176.021, subd. 1.

Using the employee’s wage records from the employer, the employee asserts a 26-week wage calculation as presented in the employee’s exhibit F. The last page of the exhibit purports to list the employee’s wages for the employer for the 26 weeks preceding her injury and includes a weekly wage calculation averaging these amounts and resulting in a weekly wage from her work with the employer of $702.22. The amounts for several of the weeks listed on the last page of that exhibit, however, are erroneous. The list includes wages for several weeks where the employee was not working for the employer. The mistake appears to be based on a misreading of the employee’s wage records in the preceding pages of the exhibit, which include year-to-date and quarter-to-date gross pay directly above the gross pay for the pay period. In some of the weeks where the employee did not work for the employer from the end of August through mid-November 2009, the pay period gross pay areas are blank, but the quarter-to-date amounts are listed and were included in the 26-week wage calculation in the exhibit. For the time when the employee returned to part-time work for the employer beginning in November 2009, the wage calculation mistakenly includes the quarter-to-date amounts with the employee’s part-time earnings for the pay period. We also note the last pay period record is missing from the exhibit. We conclude the compensation judge did not err by declining to adopt the employee’s proposed weekly wage calculation for her work with the employer.^[1]

Given the circumstances of this case and the lack of wage records from First Step, the compensation judge’s determination of the employee’s weekly wage is not unreasonable, and we affirm.