Bradley v. Vic's Welding, C7-86-2163

• Court: Minnesota Supreme Court
• Writing for the Court: COYNE
• Citation: Bradley v. Vic's Welding, 405 N.W.2d 243 (Minn. 1987)
• Decision Date: 08 May 1987
• Docket Number: No. C7-86-2163,C7-86-2163
• Parties: Michael BRADLEY, Respondent, v. VIC'S WELDING and Western Insurance Company, Relators.

Page 243

405 N.W.2d 243

Michael BRADLEY, Respondent, v. VIC'S WELDING and Western Insurance Company, Relators.

No. C7-86-2163.

Supreme Court of Minnesota.

May 8, 1987.

Syllabus by the Court

Minn.Stat. Sec. 176.011, subd. 18 permits the inclusion of overtime pay in the computation of an injured temporary employee's weekly wage only if overtime is regular or frequent throughout the year for the employment involved.

Rolf E. Sonnesyn, Relator, Foster, Waldeck & Lind, Ltd., Minneapolis, for relators.

Curtis H. Foster, Starr & Foster, Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

COYNE, Justice.

The sole issue in this case is the compensation rate for temporary total and temporary partial disability under Minn.Stat. Sec. 176.011, subd. 18. Employee, a heavy equipment operator hired for a short term job, claims entitlement to periodic compensation based on a weekly wage which includes overtime. The Workers' Compensation Court of Appeals (WCCA), by a majority decision, included overtime in the computation of the weekly wage, overturning a compensation judge's determination that the employee's weekly wage should be based on a 40-hour week. We reverse and reinstate the decision of the compensation judge.

Employer, Vic's Welding, maintains the boilers, vessels, and exchangers and performs other maintenance work at the Pine Bend Refinery. Each fall the refinery shuts down for a three-week "turn-around" period during which Vic's Welding overhauls the plant equipment and performs any other necessary maintenance work. During the "turn-around" employer maintained two 10-hour shifts seven days a week and augmented its customary work-force of 30-50 employees by approximately 200 workers hired out of various trade union halls. On completion of the refinery turn-around, employer resumed its regular 40-hour work week and returned to its normal complement of workers.

On September 26, 1983, employer hired employee to operate a crane at the refinery for the turn-around period. During employee's first week of employment with employer, he earned $1,215.50, which comprised $680 of regular wages (40 hours at $17 per hour) and $535.50 of overtime pay. The second week employee's gross earnings were $1,275, $680 of regular wages and $595 of overtime pay. During the third week, employee sustained a work-related back injury and was unable to continue working. Employer and its insurer paid workers' compensation benefits based on a weekly wage of $680 computed on a 40-hour week at $17 per hour.

After completing his college education, for part of which the employer paid as retraining benefits, employee obtained employment as a pharmaceutical salesperson at an annual salary of $26,000. Employer continued to pay temporary partial disability compensation based on a weekly wage of $680. Employee contends, however, that his weekly wage should include overtime. He asserts that the majority of his jobs as an operator of heavy construction equipment involved considerable overtime, but he concedes that his employment was irregular and generally seasonal and that his gross income from that kind of work was not more than $20,000.

The compensation judge found that overtime was not regular or frequent throughout the year for employees of this employer and that the employer had correctly computed the weekly wage without considering overtime. The WCCA reversed and declared that overtime should be included in computing the weekly wage and found that the employee's weekly wage was $1,215.50. The question is now before us on certiorari.

While we do not disturb a decision of the WCCA unless it is manifestly contrary to the evidence, a decision which rests upon the application of a statute to basically undisputed facts involves a conclusion of law which is not binding on this court. Cf. A.J. Chromy Constr. Co. v. Commercial Mechanical Services, Inc., 260 N.W.2d 579, 582 (Minn.1977). The majority of the WCCA looked upon the compensation judge's decision as one of misapplication of the statute and, hence, subject to correction. To the extent, however, that the compensation judge's decision depends on his findings that the employer's normal work week is a five day, 40-hour week and that overtime was neither regular nor frequent throughout the year, those factual determinations--for which there is substantial evidentiary support--are entitled to deference by the WCCA. Polaschek v. Asbestos Products, Inc., 361 N.W.2d 37 (Minn.1985).

Minn.Stat. Sec. 176.011,...