SHARQUITA GUYTON, Employee/Appellant, v. HENNEPIN CNTY. MED. CTR., and HENNEPIN CNTY., SELF-INSURED, Employer/Respondents, SUMMIT ORTHOPEDICS and N. MEM’L HEALTH CARE, Intervenors.

The employee appeals from the determination that her average weekly wage is $627.87. We affirm.

The employee, Sharquita Guyton, is employed by the Hennepin County Medical Center as a dietary aide. The employee’s position with the employer is a 0.9 full time equivalent (FTE) and she frequently works overtime. The employee suffered an admitted low back injury on August 16, 2016.

As a result of the injury, the employer paid wage loss benefits based on the average weekly wage (AWW) calculated by the employer’s human resources staff. The amount determined as the AWW was $627.87. The employee worked with a QRC who prepared an R-2 Rehabilitation Plan form. The QRC indicated that the goal of the plan was to return to work with the date of injury employer. The AWW was identified as “$704.70 (est.).”^[1] The employee disagreed with the employer’s calculation of AWW and contacted the Department of Labor and Industry (DLI). DLI indicated, based on the wage information provided by the employee, that the AWW calculation using the regular schedule method was $562.00, and using the irregular earnings method, $639.76. The DLI calculation was accompanied by a statement that the calculation could be made more accurate if the precise earnings information from February 17-20, 2016, was used as part of a 26-week average instead of a 27.4-week total that is averaged.^[2]

The employee filed a claim petition on September 12, 2016, subsequently amended on July 3, 2017, seeking temporary total disability compensation from February 28, 2014, and continuing, permanent partial disability in an amount to be determined, payment of medical expenses, and rehabilitation benefits. The matter came on for hearing on August 15, 2017, before Compensation Judge Adam Wolkoff. The employee appeared pro se. The only witnesses to testify were the employee and a staffer from the employer’s human resources division. The employee did not offer any testimony and relied on the documents that she submitted into the record at the beginning of the hearing. The employer offered the actual wage information used to arrive at the various AWW calculations for the employee. The employee successfully objected to the employer’s offer of a document as not having been made available prior to the hearing.

Judge Wolkoff kept the record open following the hearing for receipt of argument by the parties. The employee sought to submit additional information with her argument. The employer objected to the information and the compensation judge refused to receive the documents.

The compensation judge found that the employee’s AWW was $627.87. The judge rejected the employee’s proposed alternative calculations as either an unsupported estimate or exceeding the 26-week period set out in Minn. Stat. § 176.011. The employee 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).

The employee maintains that the compensation judge erred in calculating the AWW. Additionally, the employee contends that the documents submitted following the hearing should have been considered by the judge in arriving at a decision on the AWW calculation. The exclusion of late filed evidence was within the discretion of the compensation judge. The compensation judge’s determination of the employee’s AWW is supported by substantial evidence, and this court affirms.

The employee maintains that the compensation judge improperly excluded exhibits filed post-hearing. Evidentiary rulings are generally within the sound discretion of the compensation judge, and considerable latitude is given to the judge in conducting a workers’ compensation hearing.^[3]

In this matter, the employee objected to receipt of a document at hearing as not identified and made available prior to the hearing. Having sustained the employee’s objection at the hearing, the application of that same standard to the employee’s post-hearing submissions is not an abuse of discretion by the compensation judge.

The employee appended the excluded documents to her Notice of Appeal. This court cannot consider information on appeal that was not included in the record before the compensation judge.^[4] Those documents are stricken from the appeal record.

The purpose of wage determination is to establish a “fair approximation” of the employee’s earning capacity that has been reduced as a result of the work injury.^[5] As the employee had a 0.9 FTE position and consistently worked overtime hours, the use of the 26-week averaging method is appropriate.^[6] Based on the differing starting points to the applicable period, the employer arrived at two similar AWW amounts and paid the employee the higher of the two. The employee offered two other figures, one merely an estimate with no relation to the employee’s actual wages, and the other based on a 27.5-week period. The figure chosen by the compensation judge, $627.87, appears to be a fair approximation of the employee’s earning capacity per week.

We have reviewed the evidence in this matter and conclude that the compensation judge’s Findings and Order have substantial support in the record. The compensation judge was entitled to rely on the employee’s actual wages, averaged over the 26-week period preceding the date of injury, in determining the appropriate AWW figure. There is no suggestion that the employee’s earnings were somehow different over that period. The compensation judge’s Findings and Order are accordingly affirmed.