Bach v. Upper Mississippi Mental Health Ctr.

Bach v. Upper Mississippi Mental Health Ctr., WC16-5911 (W.C.C.A. August 15, 2016)

Employee appealed the compensation judges’ calculation of the employee’s weekly wage at the time of injury.  The W.C.C.A affirmed by finding substantial evidence supports the conclusion that employee did not have evidence to support her claim of regular employment with a second employer, nor that employee worked from multiple employers at the time of injury.  Secondly, the W.C.C.A. affirmed that when the employee’s proposed weekly wage calculation includes incorrect amounts, the compensation judge may decline to adopt the proposed calculation.

Employee began working full time as a chemical dependency counselor at Upper Mississippi Mental Health Center (UMMHC), the employer, in April of 2009.  On August 14, 2009, Employee left Employer to work for Bell Hill on August 17, 2009.  However, on November 10, 2009, Employee left Bell Hill to return to Employer on November 10, 2009.  This time, Employee only worked part-time for Employer as Employee also began working for First Step in early November, 2009.

First Step was a startup company.  During the time working for First Step, Employee was unpaid with the exception of two pays before the December 15, 2009 injury.  Employee testified that she was going to be paid $18.88 per hour once she became full-time.  Employee’s last part-time shift at UMMHC was on December 15, 2009, the same day First Step would open.  However, a half hour before her last shift, employee sustained low back injuries when she fell while retrieving a computer power cord from her car.  Employer admitted liability for the injury.  Employee continued to work for First Step through February 2010, however, it is no in longer business and wage records are not available for that employment.  Additionally, Employee did not retain her pay records from First Step.

The employee argued she worked regularly for UMMCH from November 10 through December 15, 2009 and regularly for First Step mid-November 2009 through February 2010.  The compensation judge found that Employee was not regularly employed by two employers at the time of the December 15, 2009 injury.  The judge then based the employee’s weekly wage solely on the five weeks that Employee worked part-time for the employer.  Furthermore, the compensation judge stated “that any unpaid work for First Step was irrelevant to the regular employment determination and that the employee’s ‘unverifiable possibly sporadic day or two of paid work’” at First Step during the five weeks should not be classified as regular employment.

The W.C.C.A. affirmed the compensation judges’ conclusion reasoning that the judge did not err in not accepting the employee’s testimony that she was being paid by First Step while she was working for Employer.  The W.C.C.A. agreed the claims were “unverifiable” because there was no objective evidence, such as wage records or pay stubs, to prove Employee was being paid.   Lastly, the W.C.C.A. affirmed that where Employee’s proposed weekly wage calculation was erroneously calculated, the judge was right to decline to adopt the erroneous proposal, which included weeks employee was not working for Employer and erroneously listed quarter-to-date amounts in the 26-week calculation.