WILMA KMETT, Employee/Appellant,
v.
CENTRAL SPECIALTIES, INC., and MARYLAND CASUALTY, Employer-Insurer.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 25, 1999
HEADNOTES
WAGES -
SEASONAL WORK; WAGES - IRREGULAR; WAGES -
OVERTIME. Where the employee's job was seasonal and
her hours and days of work per week were affected by weather
conditions; and where substantial evidence supported the
finding that employee's work week was not more than five
days a week; and where the employee's overtime work hours
were regular and frequent; and there is evidence in the
record from which the statutory calculation of the
employee's daily and weekly wage can be made; and the
computation of the employee's average daily wage includes
regular overtime hours; therefore, the employee's average
weekly wage pursuant to Minn. Stat. § 176.011, subd. 3, is
the five times the employee's daily wage.
Reversed.
Determined by Hefte, J., Pederson, J., and Wheeler, C.J.
Compensation Judge: Joan G. Hallock
OPINION
RICHARD C. HEFTE, Judge
The
employee appeals the compensation judge's finding of the
employee's average weekly wage. We reverse.
BACKGROUND
While
working for the employer, Central Specialities, Inc., Wilma
Kmett, the employee, sustained an admitted work-related
injury on July 11, 1996. At the time of her injury the
employee was working as a flag person on a road construction
site near Cass Lake, Minnesota. The employee was hired
as a seasonal worker who directed traffic at a construction
site. Flaggers were hired by the employer on a seasonal
basis for projects that usually lasted for "two or three
weeks." Flaggers were generally hired from the
local area near the construction project and rarely were
hired for future projects because the employer's
construction company, headquartered in Alexandria, Minnesota,
performed projects in a wide geographical area. The
employee lived about 15 miles from the project where she was
injured.
The
first time the employee worked for the employer was on July
3, 1996, a Wednesday. The employee testified when she
noticed a road construction crew working on a road near her
home, she applied for work at the job site on July 3, 1996,
was hired, and began working that same day, July 3, as a
flagger. She claimed she was hired to work 10 hour days,
six days a week; however, she would not work in the event the
employer had to shut down because of the weather
conditions. The employer denied the employee's
statement that she was hired to work a six-day work week.
In July
1996, the employee worked three days for the employer during
her first week at work: 133 hours on July 3; 153 hours on
July 5; and 7: hours on July 6. During her second week
at work, the employee worked four days including the day she
was injured: 8 hours on July 8 (Monday); 11 hours on July 9;
14 hours on July 10; and 92 hours on July 11. According
to the employer, her basic hourly rate of pay was $8 per
hour, plus time and a half for overtime. There is some
confusion as to the rate of pay as the employee initially
testified that her hourly rate of pay was $14.50 per hour,
which apparently included benefits. When asked what her
base rate of hourly pay was, the employee said she didn't
know what it was at the time of her
injury. Employer's Exhibit E indicated the
employee's rate of pay was $8.00 per hour. The
employee's 1996 W-2 form completed by the employer shows
wages for the year to be $1,193.41, which represented the
employee's wages for her seven days of work for the
employer. The total wages of $1,193.41 is not
disputed. There is no evidence the employee worked for
the employer for more than the seven days in 1996. Time
records were introduced of four other flaggers who worked for...
