WILTON M. GRIEGER, DECEASED, BY JULIA GRIEGER, Employee/Appellant, v. MENARDS and PRAETORIAN INS. CO., admin’d by GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Respondents.

For the purpose of dependency benefits, an employee’s wage is calculated by the number of hours typically worked in the employment or industry in which the injury was sustained, pursuant to Minn. Stat. § 176.011, subd. 18. The employee’s dependent widow appeals the compensation judge’s determination that the employee’s wage was properly calculated using a 24 hour per week figure. As the compensation judge’s determination regarding the hours worked in the employment or industry is supported by substantial evidence, including expert testimony, we affirm.

Wilton Grieger, the employee, retired at the age of 69. Thereafter, he found a job as a part-time stock person for Menards, the employer, where he worked an average of 20 to 21 hours a week. While in the course and scope of employment on November 26, 2015, the employee, who was 81 years old, slipped and hit his head resulting in a fatal injury. He was survived by his spouse, Julia Grieger, the appellant. The employer and insurer paid dependency benefits based on an average weekly wage of $205.18. However, the dependent spouse alleged an underpayment of benefits based on an incorrect calculation. She argued that the dependency benefit to which she was entitled was not subject to the employee’s average weekly wage, but rather should be paid based on “the number of hours normally worked in the employment or industry in which the injury was sustained.” Minn. Stat. § 176.011, subd. 18. Following the filing of a claim petition, the matter went to hearing on May 17, 2018. Multiple witnesses testified regarding the number of hours worked in the industry. The compensation judge found that the employer and insurer had properly paid dependency benefits (which appeared to have been roughly based on the employee’s average weekly wage).

On appeal to our court, the dependent spouse argued that the compensation judge erred. We agreed, vacated the judge’s finding, and remanded the issue for a determination of a dependency benefit consistent with the language of Minn. Stat. § 176.011, subd. 18.^[1]

On remand, the parties submitted the case to the compensation judge on the prior record, supplemented by briefs. In his Findings and Order on Remand, served and filed December 13, 2018, the compensation judge rejected the petitioner’s position that the amount should have been based on federal labor statistics that the industry average was 33 hours each week. The judge instead adopted the expert opinion of Jan Lowe who concluded that the number of hours worked in the industry was 24 hours. This resulted in a weekly payment of $260.40 each week.^[2] 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 adopting Ms. Lowe’s opinion that the number of hours typically worked per week in the industry in which the injury was sustained is 24. The surviving spouse maintains that the industry standard is 33 hours each week based on federal labor statistics for the industry during the month and year when the employee died. She claims that this is the best evidence and it should have been adopted by the compensation judge.

Explaining his rationale for adopting the number of hours, the judge reasoned that the language of Minn. Stat. § 176.011, subd. 18, does not compel the use of the higher number, but rather the number that is reasonable. He explained that, in this case, it is unreasonable to pay an employee’s dependent at a rate that would be significantly higher than his actual earnings. In doing so, he rejected the dependent spouse’s position that the industry standard in this case was 33 hours each week.

In this matter, the compensation judge arrived at his decision, in part, by relying on the opinion of a vocational expert. Unless the facts assumed by the expert in rendering her opinion are not supported by the evidence, the trier of fact’s choice between experts’ conflicting testimony is generally upheld. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Here, vocational expert Lowe arrived at a range of hours equal to 20-28 a week (with an average of 23.625 hours) as that worked in the industry. She based her numbers on an averaging of the hours worked by stock clerks in various Menards, Lowe’s, and Home Depot stores in the area. Ms. Lowe’s opinion is also supported by the employer’s witness, a human resources team member who testified that the average for all of Menards’ casual part-timers was about 21 hours a week. This is substantial evidence supporting the judge’s finding.

While the surviving spouse’s expert disagreed, that expert’s conclusion was based on a broader segment of the industry, including a wider variety of retail settings. The use of a broad or narrow approach to the assessment of the industry in which the deceased employee worked is a question of fact for the compensation judge. Fuls, by Fuls v. Immanuel Lutheran Church, slip op. (W.C.C.A. Dec. 22, 1994). The judge could reasonably conclude that Ms. Lowe’s testimony more accurately described the hours typically worked in the employment or industry of the employee. We conclude that substantial evidence supports the judge’s finding and affirm.