ANTWAN FLOWERS, Employee/Appellant, v. ST. PAUL PUB. SCHS., ISD 625 Self-Insured/CCMSI, Employer/Respondent, and SILVERMAN ANKLE & FOOT, HEALTHPARTNERS, INC., and REGIONS HOSP., Intervenors.

The employee appeals the determination of the employee’s average weekly wage and the denial of penalties sought for underpayment of temporary total disability and temporary partial disability benefits.  As substantial evidence supports the compensation judge’s decision regarding the average weekly wage, we affirm.

The employee, Antwan Flowers, began work for the self-insured employer, St. Paul Public Schools, in 1992.  The employee works 40 hours per week as a behavioral intervention specialist.  He is not licensed as a teacher.  Since 1992, the employee has worked a number of other jobs in addition to his work for the self-insured employer.  This most recent second job was at LifeWorks, where the employee provided personal care services.  The employee began the LifeWorks position in August 2018.

At LifeWorks, the employee provided personal care services for one client, typically four days per week for a total of 20 hours per week.  The client’s family discontinued the employee’s services in October 2019.  The employee’s summary of his wages received indicates that the employee did not provide services (or do any other paid work) through LifeWorks from August 31 to September 21, 2019.  (Ex. B; T. 42.)  The employee’s last pay period for work of any sort with LifeWorks ended on November 8, 2019.  (Ex. B.)

On November 21, 2019, the employee was working for the self-insured employer when he suffered a severely broken ankle.  The employee required multiple surgeries and was taken off of all work during the initial recovery period.  The self-insured employer admitted the injury and paid benefits, including temporary total disability (TTD) and temporary partial disability (TPD).  The amounts for these benefits were initially calculated using only the employee’s earnings from the self-insured employer to determine the average weekly wage (AWW).  Later, the AWW was adjusted to include the employee’s earnings from LifeWorks.

Based on correspondence with a QRC working with the employee, the self-insured employer suspected that the employee was no longer employed by LifeWorks as of the date of injury (DOI).  (Ex. 5.)  The self-insured employer obtained an email, dated January 10, 2020, from the employee’s personnel file with LifeWorks stating that the employee was terminated effective November 8, 2019.  (Ex. 3.)  A memo from LifeWorks stated that the employee’s last day worked was November 8, 2019, and that LifeWorks did not provide client/PCA matching services.  (Ex. I.)  The self-insured employer recalculated the employee’s AWW to exclude those earnings and claimed an overpayment for the TTD and TPD benefits paid using the higher calculation.

On September 3, 2020, the employee filed a claim petition seeking TTD and TPD benefits, penalties, and other relief.  The primary disputes were the calculation of the employee’s AWW and the asserted overpayment of benefits by the self-insured employer.  In a deposition taken in November 2020, the employee described doing mostly administrative work for about 20 hours per week for LifeWorks and leaving LifeWorks in August 2019 as the work was not a good fit with his schedule.  (Ex. 8, at 17-20.)

The dispute came before a compensation judge on March 12, 2021.  The issues were limited to determination of the employee’s AWW and whether penalties were appropriate.  The compensation judge found that the employee was not regularly employed by LifeWorks on the DOI, calculated the employee’s AWW based on his actual earnings with the school district, and concluded that the self-insured employer did not underpay the employee, thereby finding penalties to be inappropriate.  The employee appealed.

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 consistency of work performed over the 26 weeks prior to the work injury demonstrates that the compensation judge erred in excluding the LifeWorks earnings from the AWW calculation.  The self-insured employer asserts that substantial evidence supports the determination that the employee was not regularly employed in a second job as of the date of the work injury and therefore the AWW calculation is correct.

As relevant to the issues in this proceeding, Minn. Stat. § 176.011, subd. 8a, provides that: “If, at the time of injury, the employee was regularly employed by two or more employers, the employee's earnings in all such employments shall be included in the computation of daily wage.”  The work injury occurred on November 21, 2019.  The employee’s deposition indicated that he left employment with LifeWorks well before the work injury.  The employee’s personnel file indicates that his last day of work was November 8, 2019.  This is evidence that the employee was not regularly employed with a second employer at the time of injury within the meaning of the statute.

Despite his employment status on the DOI, the employee contends that his history of working two jobs should control, and all his earnings up to the DOI should form the basis of his benefit calculation.  The ultimate 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.”^[1]  As we have previously noted, income from other recurring employment may be included in the calculation of an employee’s weekly wage “. . . so long as the employment was regular in the sense that, in light of the history, scope and purpose of the employment, such employment and earnings would likely recur or continue on an ongoing basis.”^[2]

In this case, the employee had ceased working as a PCA two weeks before the injury.  He offered no evidence of any efforts made to either continue with a different client or find different work to replace the LifeWorks position.  Correspondence from LifeWorks confirmed the employee was terminated as of November 8, 2019, and the company does not match employees with clients as part of its service.  This supports the compensation judge’s finding that the employee was not regularly employed outside of his job with the school district at the time of the work injury.  While the employee had a long history of additional work up to several weeks prior to the DOI, there was no evidence that the work injury caused any wage loss beyond that from his primary employment.  While the work injury certainly impacted the potential for the employee to resume additional supplemental work, that is not the standard for calculating the employee’s AWW.

Substantial evidence supports the compensation judge’s determination that the employee was not regularly employed by a second employer.  There was no underpayment of benefits for which penalties would be appropriate.  For the foregoing reasons, the Findings and Order served and filed on May 20, 2021, is affirmed.