EARNING CAPACITY; TEMPORARY TOTAL DISABILITY; WAGES – CALCULATION. Where the record does not indicate whether the employee had worked as a professional football player during the year before his injury, a remand is necessary to determine his earning capacity as a football player.
Compensation Judge: Nancy Olson
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Ltd., Minneapolis, Minnesota, for the Respondent. James R. Waldhauser and T. Zachary Chalgren, Cousineau McGuire Chartered, Minneapolis, Minnesota, for the Appellants.
Vacated and remanded.
DAVID A. STOFFERAHN, Judge
The employer and insurer have appealed the compensation judge’s determination of the employee’s weekly wage on the date of his work injury. We vacate the compensation judge’s finding on this issue and remand for further consideration.
The parties submitted this matter to the compensation judge on stipulated facts and trial memoranda without an evidentiary hearing. The stipulated facts provide the record for this court’s review.
Joshua Samuda, the employee, was employed as a professional football player by the employer, the Minnesota Vikings Football Club, on April 15, 2014. On that date, the employee sustained a fracture of his right ankle which required surgery and which resulted in the employee being temporarily totally disabled. The employer and insurer admitted liability for the injury and paid the employee various benefits including temporary total disability benefits. The employee reached maximum medical improvement from the work injury with service of a medical report on July 2, 2015. Temporary total disability benefits were discontinued 90 days after that date.
At the time of his injury, the employee was at a preseason training camp for the employer and was paid $700.00 per week, the amount paid to all players participating in camp. The employer and insurer paid the employee temporary total disability benefits at a rate of $466.69 per week, using $700.00 per week as the weekly wage on the date of injury.
The employee was under contract with the employer at an annual contract rate of $320,000.00. He would be paid wages based on the contract when the 2014 regular season started and continue as long as he was a rostered player. The employee would not be paid at the contract rate if he was released from the team before the beginning of the season.
The employee claimed an underpayment of temporary total disability benefits and alleged his benefits should have been paid based on the 2014 contract.
The compensation judge issued her Findings and Order on May 25, 2016. She found the employee’s weekly wage on the date of injury to be $6,153.84 based on the 2014 contract. The employer and insurer appeal.
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 School Dist. No. 1, 312 N.W.2d 435, 437-38, 34 W.C.D. 282, 287 (Minn. 1981)).
The employee’s position is that the measure of his earning power is the wage he would have received in the 2014 regular season, assuming he was not cut from the team before the season began. The employer and insurer argue that the employee’s earning power is the actual wage the employee was receiving in training camp at the time of the injury, which was $700.00 per week. They contend that the employee’s regular season earnings before or after the injury are irrelevant. We conclude neither of these arguments are correct.
In her findings, the compensation judge cited to our decision in Senser v. Minnesota Vikings Football Club, 42 W.C.D. 688 (W.C.C.A. 1989), summarily aff’d (Minn. Feb. 9, 1990). In that case, the employee received an injury during the 1981 regular season. The compensation judge determined that the weekly wage should be based on the contract under which the employee was playing at the time of his injury and divided that amount by 52, the number of weeks covered by the contract. This court affirmed that conclusion. We find Senser to be of limited utility in the present matter since the employee here was not injured during the regular season and was not being paid his 2014 contract rate when he was injured.
Generally, an employee’s earning capacity should not be based on hypothetical future earnings, but on the wages the employee was actually earning at the time of his injury. See Jellum v. McGough Constr. Co., Inc., 479 N.W.2d 718, 46 W.C.D. 182 (Minn. 1992). In this case, the employee’s history of earnings as a professional football player in the 52 weeks before his injury is not known, and is necessary for a determination of the employee’s weekly wage in this particular situation. Given that we do not know the employee’s employment history in the year before his injury from the limited record before us, we vacate the compensation judge’s finding regarding weekly wage and remand the matter to the compensation judge for findings on the employee’s employment history in the year before the injury and on the employee’s weekly wage in accordance with this decision. Additional evidence may be taken by the compensation judge on these issues.