JERMAIN ENGLISH, Employee/Respondent, v. RELIABLE PROP. SERVS., and XL INS. AM., INC., ADMINISTERED BY HELMSMAN MGMT. SERVS., LLC, Employer-Insurer/Appellants, and HENNEPIN CNTY. MED. CTR. AND PHYSICIANS, FAIRVIEW HEALTH SERVS. – ALL ENTITIES, MINN. DEP’T OF HUM. SERVS., MINN. DEP’T OF LAB. & INDUS. VRU, ALLINA MED. CLINIC, and ABBOTT NW. HOSP., Intervenors.

The employer and insurer appeal from the compensation judge’s findings and order awarding the employee’s claim for workers’ compensation benefits.  We affirm and modify findings regarding the employee’s weekly wage.

The employee, Jermain English, began working for the employer, Reliable Property Services, LLC, in March 2018.  He performed outdoor property management duties, which included snow removal and lawncare.  He left employment with the employer in June 2020 for personal reasons, but was rehired on January 7, 2022, specifically for snow removal duties on Nicollet Mall in Minneapolis, Minnesota.  When it snowed, the employer would call the employee, and he would report to Nicollet Mall.  He used the employer’s toolcat^[1] to remove snow from sidewalks and he also loaded excess snow into large trucks.

On January 14, 2022, the employer called the employee to his first shift of the winter season.  The toolcat he was required to operate had no side or rearview mirrors for that shift or for his second shift on January 15, 2022.  The employee reported this defect to his supervisors.  He was told that the machine would be repaired shortly and that he was to continue using the toolcat in its current state.

The employee also worked as a general handyman for HireQuest, a temporary agency.  On January 21, 2022, he had worked over seven hours for HireQuest before he was called in by the employer to remove snow.  The toolcat still did not have side and rearview mirrors.  Without these mirrors, the employee needed to turn his body to look behind him and side to side to safely operate the toolcat.  To do this, he could not wear the shoulder harness portion of the seatbelt, and only wore the lap belt portion.  A label near the toolcat’s gear shift in the center console read “Fasten Seat Belt.”  (Ex. F.)

Approximately two hours into his shift, the employee appeared to have lost control of the toolcat.^[2]  The machine hit a permanent concrete planter on the sidewalk.  As a result of the collision, the employee’s upper body propelled forward and his chest struck the steering wheel, resulting in a whiplash injury to his neck and loss of feeling in his extremities.  He testified that passers-by called for an ambulance.

The employee was taken to Hennepin Healthcare.  Medical records indicate that the employee was “unbelted” and struck his sternum and chin into the steering column of the toolcat.  An MRI scan revealed a spinal cord contusion with hyperintensity, mostly at C3-4.  Motor examination showed focal deficits of grip strength, right C4 radiculopathy, and dysesthesias at C4 and below.  As a result of these findings, the employee underwent emergency C3-4 laminectomy surgery.  Following surgery, the employee showed gradual improvement in hand strength and coordination.  He was discharged from the hospital on February 1, 2022.

The employee had not been formally trained to operate the toolcat.  Instead, he learned how to operate the machine from watching videos on the internet and from observing a co-worker a few times.  The employee’s personnel file contains signed acknowledgement forms that he “read and understood the expectation of safety” with regards to lawn maintenance machinery, but there is no acknowledgment or manual in the record related to the toolcat.  (Ex. E, 2.)  The employee was terminated on February 14, 2022.  According to the termination letter, the employer contacted “multiple sources, including law enforcement,” and determined that the employee had violated a “Life Saving Rule.”  (Ex. H.)  The personnel file offered into evidence contained no employer policies addressing failure to abide by the manuals or any reference to a “Life Saving Rule.”  The employer offered no witnesses, witness statements, or police reports at the hearing.

Following his discharge from the hospital, the employee began a course of physical therapy and occupational therapy at Hennepin Healthcare and was also seen by physicians at Broadway Family Medicine.  During an April 14, 2022, occupational therapy appointment, the employee reported ongoing “pins and needles” sensations in his extremities, lingering deficits of fine motor control, mild weakness of his left arm and right-hand grip, and a spastic walk requiring a cane.

On April 28, 2022, the employee reported to Hennepin Healthcare with left flank pain, bilateral lower abdominal pain, and right upper quadrant pain.  A CT scan showed a perforated gastric ulcer.^[3]  The employee declined admission and surgery, despite warnings that he could face serious complications and even death within hours, and he was discharged against medical advice.  Two days later, on April 30, 2022, the employee went to the emergency room at Abbott Northwestern Hospital reporting ongoing abdominal pain.  He was admitted to the hospital and on May 1, 2022, a drain was placed to aspirate the fluid from the infected ulcer.  On May 3, 2022, the drain was removed.  The employee was released on May 5, 2022, with advice to follow up in three months to confirm the ulcer was not reforming.

Beginning in August 2022, Dr. Laura Lara at Broadway Family Medicine became the employee’s primary care provider.  On November 8, 2022, Dr. Lara wrote a narrative letter indicating that the employee would be unable to work for at least another year, and potentially several years, if not permanently.  She further stated that, not only was the employee unable to work, “his best chance at recovery is to dedicate a considerable amount of time to his treatment.  This is something he could not do while working.”  (Ex. C.)

The employee underwent additional occupational and physical therapy at Courage Kenny Rehabilitation Institute from June 3, 2022, through January 25, 2023.  During a physical therapy visit on January 20, 2023, the employee reported ongoing issues of weakness, spasms, falls, unsteadiness, and a decline in mobility.  He demonstrated decreased safety, poor left foot clearance, balance impairments, anteropulsion, and spasticity.  It was indicated that therapy would be ongoing through April 2023.

The employee was examined by Dr. Jeffrey Dick on May 5, 2023, at the request of the employer and insurer.  In a report dated the same day, Dr. Dick opined that the employee suffered from central cord syndrome at the C3-4 level from a hyperextension ligamentous injury and was now status post-laminectomy at C3-4.  Dr. Dick attributed the injury to the January 21, 2022, incident.  Specifically, he wrote:

On October 5, 2023, Dr. Lara completed a health care provider report outlining the employee’s diagnosis of a catastrophic spinal cord injury and gastric ulcer with perforation.  She noted that the employee continued receiving medical treatment including physical therapy, and that she did not believe the employee was at MMI.  She rated the employee with a 50 percent permanent partial disability (PPD).^[5]

In the most recent treatment note dated October 17, 2023, Dr. Lara noted that the employee completed the recommended physical therapy but opined that, “there is still room for improvement and the patient would benefit from further PT.”  (Ex. B2.)  She also recommended additional imaging and was planning to contact the employee’s spinal doctors to see if the employee would benefit from different medication, therapy, or surgical intervention.  Dr. Lara also noted that the employee had yet to undergo a procedure to ensure his ulcer had fully healed.

The employee filed a claim petition seeking to establish primary liability and claiming entitlement to temporary total disability (TTD) benefits.  Various entities intervened for payment of rehabilitation services and medical care.  The employer and insurer denied primary liability for workers’ compensation benefits, having considered the employee’s failure to wear a seatbelt to be a prohibited act barring his claim.

The matter came on for hearing before a compensation judge on October 31, 2023.  The parties stipulated that, regardless of causation, all medical care was reasonable, necessary, and causally related to the employee’s work injury.  The only witness to testify at the hearing was the employee.

On June 28, 2024, the compensation judge issued his findings and determined that the employee’s injury arose out of and in the course of employment and was not barred by the prohibited act defense.^[6]  The compensation judge also determined that the employee was not at MMI.  He calculated the employee’s wage and awarded TTD benefits from the date of injury to the present and ongoing, and awarded the intervention claims.^[7]  The employer and insurer appeal.

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 employer and insurer raise several issues on appeal. They assert that the compensation judge, guided by his erroneous credibility finding, erred in awarding the employee’s claim for workers’ compensation benefits and did so by applying the incorrect legal standard in determining (1) that the employee did not engage in a prohibited act, (2) that the employee is not at MMI, and (3) the amount of the employee’s weekly wage.  We disagree and address each issue in turn.

Credibility findings are determinations uniquely reserved for the compensation judge.  Even v. Kraft, 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).  Such findings will not be disturbed on appeal unless manifestly contrary to 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).

The compensation judge heard testimony, viewed video of the incident, and analyzed documentary exhibits entered into evidence.  The employer and insurer submitted evidence and cross-examined the employee at hearing.  The compensation judge concluded that the employee was a generally credible and persuasive witness.  (Finding 1.)  While the compensation judge could have concluded differently about some or all of the employee’s testimony, the compensation judge did not do so.  There is nothing in the record before this court to indicate that the compensation judge’s finding that the employee provided credible testimony was manifestly contrary to the evidence when viewed as a whole.

The employer and insurer argue the compensation judge erred, legally and factually, in finding that the employee’s failure to wear a shoulder harness was not a prohibited act barring workers’ compensation benefits.  We are not persuaded.

An injury is compensable under the Minnesota Workers’ Compensation Act (WCA) if it arises out of and in the course of employment.  Minn. Stat. § 176.021, subd. 1.  The issue of fault or negligence is generally irrelevant in determining whether a work injury is compensable.  Id.  One exception is when an employee suffers injury while engaged in a prohibited act.  In that circumstance, the injury did not arise out of or in the course of the employee’s work and thus is not compensable.  Bartley v. C-H Riding Stables, Inc., 296 Minn. 115, 120, 206 N.W.2d 660, 663, 26 W.C.D. 675, 679-80 (1973).

The prohibited act defense was adopted by Minnesota courts in the 1920s.  See Olson v. Robinson, Straus & Co., 168 Minn. 114, 210 N.W. 64 (1926); Rautio v. Int’l Harvester Co., 180 Minn. 400, 231 N.W. 214, 6 W.C.D. 213 (1930); Prentice v. Twin City Wholesale Grocery, 202 Minn. 455, 278 N.W. 895 (1938).  It is an affirmative defense with the burden of proof on the employer and insurer.  To meet this burden, the employer and insurer must show that there was a prohibition of a specific act, that the prohibition was clearly and unequivocally communicated to the employee, that the employer enforced the prohibition, that the employee nevertheless committed the prohibited act, and that the commission of this act caused the work injury.  See Bartley, 296 Minn. at 120, 206 N.W.2d at 663, 26 W.C.D. at 679-80; Brown v. Arrowhead Tree Serv., Inc., 332 N.W.2d 28, 30, 35 W.C.D. 818, 822 (Minn. 1983); see also Kroeger v. Minneapolis Park & Recreation Bd., 42 W.C.D. 147, 150 (W.C.C.A. 1989); Yacoub v. Am. Nat’l Ins. Co., 59 W.C.D. 104, 108-09 (W.C.C.A. 1999), summarily aff’d (Minn. Apr. 28, 1999); Ball v. Pear One, Inc., 67 W.C.D. 31, 44-45 (W.C.C.A. 2006), summarily aff’d (Minn. Jan. 24, 2007).  Cases in which the defense is asserted must be decided on the merits and on the record as a whole.^[8]

Here, the employer and insurer argue that the employee’s failure to wear a seatbelt while operating the toolcat was a prohibited act that directly caused his injury and therefore all workers’ compensation benefits should be denied.  Yet, there is no evidence in the record that operating the toolcat without the use of a shoulder harness violated an employer policy.  No policy was admitted or articulated in the evidence submitted to the compensation judge, nor did the employer show that any such policy existed, was communicated to the employee, or was enforced against other employees.^[9]  While seatbelts may mitigate injury, the record contains no evidence that the employee’s injuries resulted from the lack the shoulder harness, or that had he been wearing the shoulder harness, his injuries would have been avoided or mitigated.^[10]

Lastly, the prohibited act defense does not apply when an employee is engaged in a permissible act, but in a prohibited manner.  Bartley, 296 Minn. at 118, 206 N.W.2d at 662, 26 W.C.D. at 678.  This exclusion recognizes situations where the employee acts in good faith to advance the employer’s interests.  Id. (“In spite of his malfeasance, the employee has the obvious purpose of accomplishing a legitimate goal (and, therefore, is conclusively within the work environment); and, inferentially, the work, in itself, is in furtherance of the employer’s business.”)  Here, the employee was furthering his employer’s interests.  He was engaged in a permissible act – the very act for which he was hired – clearing snow off the sidewalk with a toolcat.  He testified that he wore only the lap belt and not the shoulder harness in order to safely operate the toolcat, which had no side or rearview mirrors.  The employee’s failure to wear the shoulder harness, even if prohibited, does not render his operation of the toolcat a prohibited act barring compensability of his injuries.  See Camarena v. Piat, Inc., No. WC24-6563 (W.C.C.A. Nov. 4, 2024) (a drywall remover was performing a permissible act, namely removing drywall, even if doing so in a prohibited manner by not wearing eye protection, and thus his eye injury was compensable).

The compensation judge found that the employer and insurer failed to meet their burden to establish this affirmative defense.  This finding is supported by the law and by substantial evidence in the record.

The employer and insurer argue that the compensation judge erred in finding the employee had not yet reached MMI.  We disagree.

MMI is defined as “the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated…”  Minn. Stat. § 176.011, subd. 13a.  Whether the employee may need additional medical treatment does not affect an employee’s MMI status.  Hopp v. Grist Mill, 499 N.W.2d 812, 814 n.3, 48 W.C.D. 450, 452 n. 3 (Minn. 1993).  Further, benefits may not be discontinued on grounds of MMI unless the employee has reached MMI as to all compensable conditions.  Id. at 529, 48 W.C.D. at 452.  Whether an employee has reached MMI is an ultimate finding of fact that is to be determined by a compensation judge.  See Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989).

The employer and insurer argue that the evidence, including their medical expert’s opinion and Dr. Lara’s comment that further care may never improve the employee’s condition, shows that the employee has reached MMI.  However, Dr. Lara also said that the employee was not at MMI and that she hoped future medical care would provide some improvement in the employee’s spinal condition.  Further, the employee developed a consequential ulcer which required surgery and treatment.  The record is silent as to whether the employee is at MMI with regard to this condition.  Because the medical evidence is sufficient to affirm the compensation judge’s finding that the employee has not reached MMI for the spinal condition, and because there is no evidence of MMI for the employee’s ulcer condition, the compensation judge did not err in finding that MMI had yet to be reached.

The employer and insurer appeal from the compensation judge’s finding regarding the employee’s weekly wage, arguing that the compensation judge did not apply the correct method in calculating lost earning capacity.

The determination of an injured worker’s wage is governed by statute.  Minn. Stat. § 176.011, subd. 8a, states in part, “‘[d]aily wage’ means the daily wage of the employee in the employment engaged in at the time of injury. . . .”  The statute goes on:

The employer and insurer argue that the compensation judge erred by calculating the daily wage of the employee and multiplying that wage by five, asserting that the employee’s snow removal job was not seasonal work, but was “on-call.”  They further argue that the compensation judge should have used another method of calculation to determine a “reasonable average weekly wage calculation, when the statutory calculation under the claim facts returns a weekly wage which does not fairly approximate the injured employee’s lost earning capacity.”  (App. Brief at 17-18.)

The wage-related evidence in the record is sparse and incomplete.  There is no dispute that at the time of the injury, the employee was earning $22 per hour.  The record contains a one-week paycheck encompassing two days of work, and an email outlining the employee’s three total shifts.  The first shift was on January 14-15, and the second shift was on January 15-16.  The third shift was on the date of the injury, January 21.  Based upon this limited information in the record, the compensation judge found that the employee had worked a total of 27.46 hours over those three shifts.  (Finding 38.)  This finding is inconsistent with the wage information.

The singular pay stub shows pay through January 15, 2022, and 25.46 hours of work.  This pay stub encompasses the first two of the employee’s shifts, but not the last three hours of the second shift that continued into January 16.  These three hours are not on that pay stub.  When those three hours from January 16, plus the two hours from the day of the injury are added, the evidence leads to only one reasonable conclusion, that the employee worked a total of 30.46 hours from January 14 through January 21.  This is consistent with the email evidence as well, which purports to show 30.5 hours of work over the same time frame.

The compensation judge also found that the employee worked 2.25 days, which is supported by the record.  He worked two full shifts, and then two hours of a third shift.  Using these hours, the employee’s daily wage is $297.83 (30.46 hours worked x $22/hour = $670.12 ÷ 2.25 days worked = $297.83).  We modify Finding 38 accordingly.

The compensation judge determined that the employee’s snow removal job was “seasonal” under Minn. Stat. § 176.011, subd. 8a, and therefore multiplied the employee’s daily wage by five.  The statute applies the five times multiplier to the daily wage where an injured worker’s job is “in the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions.”  Id.  The term “seasonal” is not limited in a strict sense to the four seasons of the year.  Rather, it is meant to apply to industries “which do not customarily operate throughout the year because of their inherent nature or because of climatic conditions.”  Rogers v. Cedar Van Lines, Inc., 281 N.W.2d 669, 672 (Minn. 1979).  Whether the employee was engaged in employment affected by seasonal conditions is a fact determination that must be affirmed if supported by substantial evidence.  Czech v. Bernard L. Dalsin Co., 43 W.C.D. 534 (W.C.C.A. 1990), summarily aff’d (Minn. Nov. 29, 1990).

The employee worked in an industry affected by seasonal conditions of winter, and specifically whether it snowed.  Here, the employee would work only during the snow season, and then, only if it snowed.  His job was both seasonal and snowfall dependent.  We note that the statute’s purpose seems to encompass “regular” jobs that are interrupted for periods of time by seasonal conditions.  For example, construction workers generally work for most of the year, but typically not during Minnesota winter months.  Not only do construction workers have their day-to-day jobs occasionally affected by weather, such as rain, they also have entire “seasons” of not working at all.  Compare Czech (while the employee’s roofer job might have days or hours of no work if weather prevented working on a roof, those days were made up by working longer hours during better weather).  But unlike the roofer in Czech, who may be able to recoup hours lost from rainy days by working longer hours in subsequent days, an employee who removes snow is not afforded the same benefit.  A snow removal employee cannot work if it does not snow.

The purpose of the five times multiplier is “to ‘factor out’ the periods of seasonal unemployment or underemployment and to compensate [employees] as though they were full-time, year-round employees.”  Koziolek v. Aconite Corp., 49 W.C.D. 498, 500 (W.C.C.A. 1993), summarily aff’d (Minn. Dec. 15, 1993).  Here, the employee did not work for the employer year-round, did not work daily nor regularly, and only worked when required by snow conditions.  The issue of whether the statute applies to a job that is both seasonal and snowfall dependent has never been addressed by this court or by the supreme court.  But see Pugh v. Nelson, 27 W.C.D. 65 (W.C.C.A. 1973) (the job of snowplowing is a seasonal job under the statute).  Under the facts of this case, we conclude that the employee’s job of clearing snow is “seasonal” for the purposes of this statute.

The employer and insurer also assert that the employee’s work was not seasonal, but was “on-call,” and therefore not subject to the multiplier, relying upon this court’s decision in Meyer.   While the employee testified that he was “on call,” that has no bearing on whether his employment meets the legal definition of seasonal work.

The compensation judge did not err in calculating the employee’s weekly wage by multiplying five times the daily wage.  The modified weekly wage with the employer is calculated to be $1,489.15.  ($297.83 x 5 = $1489.83.)  Finding 38 and Finding 43 are modified accordingly.

The employee also worked a second job on the date of the injury.  Where the employee has regular employment with another employer at the time of the injury, earnings from the second job are included in determining the weekly wage.  Minn. Stat. § 176.011, subd. 18.  The employee’s weekly wage for his second job is $314.61.   As directed by the statute, when his wage from the second job is combined with wages from the employer, the employee’s weekly wage is $1,803.76 ($314.61 + $1,489.15).  Finding 43 is modified accordingly.

The employer and insurer argue that the overall weekly wage of more than $1,800.00 when the seasonal work multiplier is used and when the second job wage is added, is so far beyond the employee’s earning capacity as to be patently unfair on its face.  The employer and insurer contend that seminal caselaw from our supreme court on wage calculations requires a “fair approximation” of the employee’s earning capacity in lieu of the statutory calculation.  See, e.g., Bradley v. Vic’s Welding, 405 N.W.2d 243, 245-46, 39 W.C.D. 921, 924 (Minn. 1987); Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985).

We agree that the statutory calculation results in a weekly wage substantially in excess of the employee’s actual earnings from his employers combined.  However, we are bound by the compensation judge’s findings, the statute, and case law from our supreme court.  The compensation judge could have departed from strictly applying the five-times multiplier for seasonal work in calculating the employee’s weekly wage, similar to that which was done in Koziolek (the seasonal five times multiplier does not apply for a construction worker who worked a regular shift of four days per week, ten hours per day, and instead a 40 hours per work week wage was correct).  That he did not do so was not an abuse of discretion.  The statute requires a five-times multiplier when the job, like the one at issue here, is seasonal.  The statute also clearly requires adding earnings from a second job, which the employee had in this case.  Our supreme court has not ruled on the application of the wage statute under these types of circumstances.  We have recognized in past cases that adding the seasonal multiplier may result in the appearance of unfairness.  Palkowski v. Lakehead Constructors, 57 W.C.D. 21, 27 (W.C.C.A. 1997), summarily aff’d (Minn. July 14, 1997) (despite the occasional exaggeration of the employee’s wage, the statute works as intended by the legislature, a choice made to increase seasonal jobs to five times the daily wage); see also Buckwalter v. Fahrner Asphalt Sealers, LLC, No. WC24-6557 (W.C.C.A. Sept. 17, 2024).  This is an issue for the legislature, not this court, to address.

The compensation judge’s findings, as modified by this court, are supported by substantial evidence and the statutory language of the WCA.