WILTON GRIEGER, Employee/Appellant, v. MENARDS and GALLAGHER BASSETT SERVS., Employer-Insurer/Respondents.

The dependent widow of a deceased employee appeals the judge’s finding that the employer and insurer properly paid dependency benefits. The judge erred in the application of Minn. Stat. § 176.011, subd. 18, which determines how the weekly wage is calculated for a deceased employee. By adopting the employer’s average weekly wage computation, the judge failed to apply the statute’s requirement that “compensation payable…shall not be computed on less than the number of hours normally worked in the employment or industry in which the injury was sustained….” The employee’s widow also appeals the judge’s finding that the payments need not be adjusted to reflect the minimum $60,000 death benefit. The judge did not err in denying an adjustment to the ongoing payment of dependency benefits to reflect that benefit. We vacate and remand, in part, and affirm, in part.

After his retirement, Wilton Grieger, the employee, sought part-time employment. At age 69, he was hired by Menards, the employer, as a stock person. The employee limited his work hours to part-time work only. On November 27, 2015, at the age of 81, the employee slipped in the employer’s parking lot, hitting his head. The employee died of the injury. He was survived by his wife, Julie Grieger, the appellant. The employee had no dependent children at the time of his work injury and subsequent death.

Primary liability was admitted by the employer who initially paid dependency benefits to Ms. Grieger based on an average weekly wage (AWW) of $205.18.^[1] This amount was arrived at by application of the AWW calculation formula in Minn. Stat. § 176.011, subd. 6, to the employee’s actual earnings. Pursuant to Minn. Stat. § 176.111, subd. 6, the employer paid 50 percent of the AWW to Ms. Grieger in weekly payments that are to run for a period of ten years.

In April 2016, Ms. Grieger filed a claim petition alleging an underpayment of dependency benefits. She claimed that she was entitled to an adjustment of dependency benefits to meet the $60,000 minimum death benefit under Minn. Stat. § 176.111, subd. 5.^[2] She further claimed that the employer and insurer improperly paid dependency benefits by calculating the AWW based on the employee’s earnings instead of the prescribed method under Minn. Stat. § 176.011, subd. 18. That section provides, in pertinent part:

At the hearing, multiple experts testified regarding the number of hours normally worked in the employment or industry in which the employee worked at the time of his injury and death. David N. Mickelson, a qualified rehabilitative consultant (QRC), conducted a labor market survey on behalf of the employee’s representative and determined that the employee fell under the industry category of “stock clerk in the building material and garden equipment supply dealers.” (Bureau of Labor Statistics, Ex. B). He concluded that at the time of the employee’s injury, the industry’s average number of hours worked per week was 32.3.

Jan Lowe, a QRC and vocational expert, testified on behalf of the employer and insurer. She arrived at a range of 20-28 hours worked per week, with an average number of hours at 23.625 (T. 105) based on stock clerks in various Menards, Lowe’s and Home Depot stores in the Twin Cities area. Limiting the scope of her study to stock clerks of the store in which the employee worked at the time of his death, QRC Lowe concluded that the average number of hours worked per week was 21.07.

Amanda Hart, a human resources (HR) and team member development administrator for Menards, testified that the employee was considered a casual part-time employee with limited hours and a fixed schedule She testified that the average for all of Menards’ casual part-timers was about 21 hours a week. (T. 91). The employee’s wage records showed that for the year preceding his death, he worked more hours during the spring months, up to 25.82 hours, than he did during other times of the year.^[3]

The compensation judge found by a preponderance of the evidence that the employer was properly paying dependency benefits based upon the employee’s AWW at the time of his death. He also found that the benefits need not be adjusted to reach the $60,000 death benefit under Minn. Stat. § 176.111, subd. 5. The surviving spouse 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(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).

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), summarily aff’d (Minn. June 3, 1993).

On appeal, the surviving spouse argues that the judge erred in relying on the AWW derived from the 26-week calculation method rather than applying the language in Minn. Stat. § 176.011, subd. 18. We agree.

This court has followed Crepeau v. Krost Insulation Co., 332 N.W.2d 191, 36 W.C.D. 3 (Minn. 1983), in its holding that the death benefit language in Minn. Stat. § 176.011, subd. 18, “clearly refers to the number of hours generally worked by employees rather than those worked by an individual one.” Id. at 194, 36 W.C.D. at 9. The use of the 26-week formula found in Minn. Stat. § 176.011, subds. 8a and 18, has no application in computing the daily wage and weekly wage when the employee is not a full-time worker and compensation is for death benefits. Helmke v. Pilegaard Implement Co., 26 W.C.D. 12 (W.C.C. 1971). The plain language of Minn. Stat. § 176.011, subd. 18, requires a different wage replacement calculation than the employee’s AWW.

Here, three vocational and employment witnesses testified as to what constituted the collective “number of hours normally worked in the employment or industry in which the injury was sustained.” Minn. Stat. § 176.011, subd. 18. Mr. Michelson took a national statistic based on the day the employee suffered the injury. He concluded that the number of hours normally worked was 32.3. Ms. Lowe looked at figures from similar employment from stores such as Lowe’s and Home Depot which closely resembled the employer. She arrived at a range of 20 to 28 hours a week. The employer’s HR director, Ms. Hart, testified that the employee was in the class of a casual part-time worker with limited hours. The number of hours normally worked weekly for Menard’s stores in Minnesota was 20-21. The employee’s wage records showed that at times he worked less than 20 hours a week, and at peak times, he worked up to 25.82 hours a week.

Had the judge adopted the least amount of hours cited in the expert testimony of 20 hours a week as that “normally worked in the employment or industry,” the resulting AWW would be $217.00.^[4] This is more than the AWW of $205.18 used by the employer in paying benefits. Due to the discrepancy in numbers, substantial evidence does not support the judge’s finding that dependency benefits were being properly paid.

Both the plain language of the statute and the holding in Crepeau require the judge to apply a different standard than the averaging of the employee’s actual wages over 26 weeks. For this reason, we vacate and remand this issue to the compensation judge for a determination of the benefit payable under Minn. Stat. § 176.111 using the “number of hours normally worked in the employment or industry in which the injury was sustained,” as set out in Minn. Stat. § 176.011, subd. 18, to arrive at the appropriate AWW and benefit amount.

The surviving spouse also argues that the weekly dependency benefit should be adjusted in order to reach the $60,000 minimum payment required by Minn. Stat. § 176.111, subd. 5, which provides:

The proposed proration of the dependency benefits payable in this matter is premature. Dependency benefits are paid over the course of a prescribed ten-year period and are subject to a cost of living adjustment (COLA) pursuant to Minn. Stat. § 176.645. These adjustments, made on October 1 of each year, cannot be predicted. It is conceivable that the petitioner will ultimately reach or exceed the minimum of $60,000 payout over the ten-year term of weekly payments. In the event that the payments do not reach the $60,000 minimum payment at the conclusion of the ten-year period, the difference will be payable by the employer and insurer at that time. The compensation judge correctly denied the request to prorate current payments as a means of ensuring payment of the minimum $60,000 death benefit and on this issue, we affirm.