RYAN BOYUM, Employee/Appellant, v. DVORAK TREE SERV., UNINSURED, Employer/Respondent, and MINN. DEP’T OF HUMAN SERVS., Intervenor, and SPECIAL COMP. FUND, Respondent.

The employee appeals the compensation judge’s finding that there was insufficient evidence to determine his weekly wage and therefore temporary total disability benefits would be paid at the statutory minimum workers’ compensation rate.  We vacate this finding and remand for further consideration consistent with this opinion.

On September 17, 2018, Ryan Boyum was injured while working as a tree trimmer at Dvorak Tree Service, which was owned by Jim Dvorak and was uninsured for workers’ compensation liability at that time.  Mr. Dvorak denied liability, claiming that Mr. Boyum was an independent contractor.  Mr. Boyum worked for Dvorak Tree Service sporadically from 2005 to 2012, from June 2016 to June 2018, and again from August 2018 to the date of injury.  He was initially paid $30.00 per hour and later earned $40.00 per hour when his work required climbing trees.  Neither Mr. Boyum nor Dvorak Tree Service has any record of Mr. Boyum’s wages.

The parties litigated the issues of whether Mr. Boyum was an independent contractor or an employee, whether he was entitled to temporary total disability (TTD) benefits, and the determination of his weekly wage.  A hearing was held on September 19, 2019, and continued on January 13, 2020.  The compensation judge found that Mr. Boyum was a recurrent employee of Dvorak Tree Service at the time of his injury on September 17, 2018, and that he worked as an independent contractor when he worked for other customers.  The judge further found that there was insufficient evidence to establish the employee’s weekly wage at the time of injury and awarded TTD benefits from September 17, 2018, to April 18, 2019, at the minimum workers’ compensation rate.  Because Dvorak Tree Service was uninsured for workers’ compensation liability, the Special Compensation Fund was ordered to pay the awarded benefits.  The judge noted that the employee could make a claim for underpayment of TTD benefits if evidence substantiating a higher wage became available to the parties.

The employee appeals the compensation judge’s finding that there was insufficient evidence to establish his weekly wage at the time of injury.

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).

At the hearing, the employee claimed that he was a seasonal worker “in an industry where the hours of work are affected by seasonal conditions” and that his weekly wage should therefore be calculated as five times his daily wage under Minn. Stat. § 176.011, subd. 8a.^[1]  In determining the employee’s weekly wage, the compensation judge indicated that there were no records of the dates or the number of hours the employee worked for the employer or at which rate of pay, implying that the employee’s daily wage could not be calculated using the 26-week wage calculation, and ordered TTD benefits paid at the minimum workers’ compensation rate.  The compensation judge did not make a finding on whether the employee was a seasonal worker but noted in his memorandum that testimony in the record indicated that tree climbing would not be done in certain weather conditions and that tree trimming is a year-round business.

The employee argues on appeal that his work was affected by seasonal conditions and that he should be awarded benefits based on the “five times the daily wage” calculation for seasonal employees under Minn. Stat. § 176.011, subd. 8a.  Because he was paid $40.00 per hour, and usually worked a 10-hour day, he claims his daily wage was $400.00 and that his weekly wage should be $2,000.00 per week.  The employer asserts that this amount is not an accurate representation of the employee’s earnings, that the employee did not usually work five days a week, and that the work was not seasonal because tree trimming could be performed in the winter.  The Special Compensation Fund contends that the daily wage for a seasonal employee must first be calculated using the 26-week wage calculation in Minn. Stat. § 176.011, subd. 8a.

In this case, the compensation judge did not make any findings addressing the application of the seasonal employee provision in Minn. Stat. § 176.011, subd. 8a, and the judge’s comments in his memorandum, that tree climbing was not done in certain weather conditions and that tree trimming is a year-round business, do not resolve the issue.  Employees have been considered seasonal workers in similar industries such as roofing and landscaping where the work is affected by climatic conditions, even where the employer is engaged in business all year.  See Czech v. Bernard L. Dalsin Co., 43 W.C.D. 534 (W.C.C.A. 1990), summarily aff’d (Minn. Nov. 29, 1990); Evavold v. Frogner Drywall, 41 W.C.D. 748 (W.C.C.A. 1988), summarily aff’d (Minn. Mar. 29, 1989).

The employer agreed that the employee earned $40.00 per hour when working as a climber and less when he performed groundwork.  While there is no evidence as to the breakdown of the employee’s work between climbing and groundwork, the judge could have used this information to approximate the employee’s daily wage and then a weekly wage as a seasonal employee.  Imputed wages for seasonal employees under Minn. Stat. § 176.011, subd. 8a, may be significantly higher than an employee’s actual earnings, which “represents the legislative intent to ‘factor out’ the periods of seasonal unemployment or underemployment and to compensate such workers as though they were year-round employees.”  Palkowski v. Lakehead Constructors, 57 W.C.D. 21, 27 (W.C.C.A. 1997), summarily aff’d (Minn. July 14, 1997); see also Tourville v. TNT Floor Sanding, Inc., 71 W.C.D. 487, 492 (W.C.C.A. 2011).

We vacate the compensation judge’s finding that there was insufficient evidence to determine the employee’s weekly wage and remand the matter to the compensation judge for specific findings on the issue of whether the employee worked “in an industry where the hours of work are affected by seasonal conditions” as contemplated by Minn. Stat. § 176.011, subd. 8a, and for further consideration of the employee’s weekly wage determination.