Wheeler v. Cinna Bakers LLC

• Citation: 864 N.W.2d 17
• Decision Date: 06 May 2015
• Docket Number: No. 27170.,27170.
• Court: Supreme Court of South Dakota
• Parties: Patricia WHEELER, Claimant and Appellant, v. CINNA BAKERS LLC, an Iowa Limited Liability Company, d/b/a Cinnabon (Empire Mall), Employer and Appellee, and Hartford Casualty Insurance Company, Insurer and Appellee.

864 N.W.2d 17

Patricia WHEELER, Claimant and Appellant

v.CINNA BAKERS LLC, an Iowa Limited Liability Company, d/b/a Cinnabon (Empire Mall), Employer and AppelleeandHartford Casualty Insurance Company, Insurer and Appellee.

No. 27170.

Supreme Court of South Dakota.

Considered on Briefs Feb. 17, 2015.

Decided May 6, 2015.

Jolene R. Nasser, N. Dean Nasser, Jr. of Nasser Law Office, PC, Sioux Falls, South Dakota, Attorneys for claimant and appellant.

Richard L. Travis, Eric D. Denure, May & Johnson, PC, Sioux Falls, South Dakota, Attorneys for employer, insurer, and appellees.

Opinion

GILBERTSON, Chief Justice.

[¶ 1.] Patricia Wheeler appealed the administrative law judge's (ALJ's) determination that she not be allowed to aggregate her wages from three separate employments in the calculation of her Average Weekly Wage (AWW). The circuit court affirmed the ALJ's determination. Wheeler appeals to this Court. We reverse.

Facts and Procedural History

[¶ 2.] Wheeler worked at the Cinnabon Store in the Empire Mall in Sioux Falls, South Dakota. Cinna Bakers, LLC, owns Cinnabon, which made Wheeler an employee of Cinna Bakers. Wheeler was also employed by Westside Casino and Get ‘N’ Go convenience store in Sioux Falls. Wheeler held all jobs concurrently in order to reach the earning level of full-time employment and had done so on a long-term basis with the intent of continuing indefinitely. While working at Cinnabon, Wheeler sustained two separate work-related injuries, which arose out of and in the course of her employment with Cinna Bakers. As a result of her injuries at Cinnabon, Wheeler was unable to work at Cinnabon and her two other concurrently held jobs.¹ After initially denying Wheeler's claim, Cinna Bakers and its insurance company, Hartford Casualty Insurance Co., accepted Wheeler's injuries as compensable. However, the parties disputed whether income from all three of Wheeler's concurrent employments should be used to calculate her AWW. Wheeler filed a petition and asserted that all three of her concurrent employments should be aggregated to calculate her AWW. The ALJ determined that only Wheeler's wage from Cinna Bakers could be utilized to calculate her AWW. Wheeler appealed to the circuit court, and it affirmed. Wheeler now appeals to this Court.

[¶ 3.] Wheeler raises one issue:

Whether the ALJ and the circuit court erred in holding that Wheeler could not aggregate her earnings from three separate employments to calculate her AWW after she was injured on the job at one employment.

Standard of Review

[¶ 4.] While our standard of review of an agency decision is set forth in SDCL 1–26–37,² the parties agree the question before the Court is one of statutory interpretation. Statutory interpretation is a question of law reviewed de novo. Whitesell v. Rapid Soft Water & Spas, Inc.,

2014 S.D. 41, ¶ 6, 850 N.W.2d 840, 842 (citing Fair v. Nash Finch Co., 2007 S.D. 16, ¶ 7, 728 N.W.2d 623, 628).

Decision

[¶ 5.] Wheeler asserts on appeal that the ALJ and the circuit court erred when they only used her wage from Cinna Bakers to determine her AWW. Wheeler argues her wages from all three of her concurrent employments should have been aggregated to calculate her AWW. In support of her argument, Wheeler points out that a majority of jurisdictions allow for the aggregation of wages from concurrent employments. Arthur Larson, Larson's Workers' Compensation Law, § 93.03[1][a] (2014). Only a small number of states do not permit the aggregation of wages from concurrent employments. Id. Of the jurisdictions that allow for the aggregation of wages, most only permit aggregation when the employments are “similar” or “related.” Id. Most of the remaining jurisdictions that permit aggregation allow earnings to “be combined whether or not the employments were related or similar.” Id. Professor Larson calls this last position the “growing minority rule.” Id. Professor Larson endorses the “growing minority rule” when calculating the AWW.³

[¶ 6.] Although a majority of jurisdictions aggregate the AWW in some manner, we have not yet addressed whether South Dakota's workers' compensation scheme permits the aggregation of wages from concurrent employments when, as here, the injuries arose out of and in the course of only one of those employments. While other jurisdictions and Professor Larson may provide persuasive authority on the matter, the issue before the Court is one of statutory interpretation. The primary purpose of statutory interpretation is to discover legislative intent. Bostick v. Weber, 2005 S.D. 12, ¶ 7, 692 N.W.2d 517, 519 (citing State v. Myrl & Roy's Paving, Inc., 2004 S.D. 98, ¶ 6, 686 N.W.2d 651, 653). Our first step in determining legislative intent is to look at the plain language of the statute. See City of Rapid City v. Anderson, 2000 S.D. 77, ¶ 7, 612 N.W.2d 289, 291 (quoting Dahn v. Trownsell, 1998 S.D. 36, ¶ 14, 576 N.W.2d 535, 539). “Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed.” Id. “A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses.” Petition of Famous Brands, Inc., 347 N.W.2d 882, 886 (S.D.1984) (quoting Nat'l Amusement Co. v. Wis. Dep't of Taxation, 41 Wis.2d 261, 163 N.W.2d 625, 628 (1969) ). If statutes are ambiguous or lead to absurd and unreasonable results, we will utilize the rules of statutory construction to discover the true legislative intent. See id. at 885; Anderson, 2000 S.D. 77, ¶ 7, 612 N.W.2d at 291 (quoting Dahn, 1998 S.D. 36, ¶ 14, 576 N.W.2d at 539); State v. Davis, 1999 S.D. 98, ¶ 7, 598 N.W.2d 535, 537–38. Additionally, if we conclude the language of the statutes is ambiguous or leads to an absurd and unreasonable result, we “liberally construe[ the statutes] in favor of [the] injured employee[ ]” because this is a workers' compensation case. Hayes v. Rosenbaum Signs & Outdoor Adver., Inc., 2014 S.D. 64, ¶ 28, 853 N.W.2d 878, 885 (quoting Caldwell v. John Morrell & Co., 489 N.W.2d 353, 364 (S.D.1992) ); Mills v. Spink Elec. Co–op., 442 N.W.2d 243, 246 (S.D.1989) (holding workers' compensation is “remedial” in nature and should though be “liberally construed in favor of injured employee[ ]”).

[¶ 7.] Our first step is to analyze the plain meaning of the statutes in question. Workers' compensation statutes prescribe the calculation for the AWW. There are three statutes that apply to such calculations. The first statute provides:

As to an employee in an employment in which it is the custom to operate throughout the working days of the year, and who was in the employment of the same employer in the same grade of employment as at the time of the injury continuously for fifty-two weeks next preceding the injury, except for any temporary loss of time, the average weekly wage shall, where feasible, be computed by dividing by fifty-two the total earnings of the employee as defined in subdivision 62–1–1(6), during the period of fifty-two weeks. However, if the employee lost more than seven consecutive days during the period of fifty-two weeks, then the division shall be by the number of weeks and fractions thereof that the employee actually worked.

SDCL 62–4–24 (emphasis added).

[¶ 8.] The second method prescribed by statute is not utilized unless SDCL 62–4–24 does not apply. The second statute provides:

As to an employee in an employment in which it is the custom to operate throughout the working days of the year, but who is not covered by § 62–4–24, the average weekly wages shall, where feasible, be ascertained by computing the total of the employee's earnings during the period the employee worked immediately preceding the employee's injury at the same grade of employment for the employer by whom the employee was employed at the time of the employee's injury, and dividing such total by the number of weeks and fractions thereof that the employee actually worked. However, if such method of computation produces a result that is manifestly unfair and inequitable or if by reason of the shortness of time during which the employee has been in such employment, or the casual nature or terms of the employment, it is impracticable to use such method, then regard shall be had to the average weekly amount which during fifty-two weeks previous to the injury was being earned by a person in the same grade, employed at the same work, by the same employer, or if there is no person so employed, by a person in the same grade, employed in the same class of employment in the same general locality.

SDCL 62–4–25 (emphasis added).

[¶ 9.] The third statute is used to calculate the AWW if neither SDCL 62–4–24 nor SDCL 62–2–25 apply. The third statute provides:

As to an employee in an employment in which it is the custom to operate throughout the working days of the year and where the situation is such that it is not reasonably feasible to determine the average weekly wages in the manner provided in § 62–4–24 or 62–4–25, the average weekly wages shall be determined by multiplying the employee's average day's earnings by three hundred, and dividing by fifty-two.

SDCL 62–4–26 (emphasis added).

[¶ 10.] All three AWW statutes utilize the definition of “earnings” as defined by SDCL 62–1–1(6) to calculate the AWW. See SDCL 62–4–24 ; SDCL 62–4–25 ; SDCL 62–4–26. The statute defining “earnings” provides:

“Earnings,” the amount of compensation for the number of hours commonly regarded as a day's work for the employment in which the employee was engaged at the time of his injury. It includes payment for all hours worked, including overtime hours at straight-time pay, and does not include any sum which the employer has been accustomed to pay the employee to cover any special expense entailed by him by the nature of his employment;

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