Boyum v. Dvork Tree Serv., et al. No. WC20-6350 (W.C.C.A Dec 15, 2020)
The employee appealed the compensation judge’s finding there was insufficient evidence to determine Mr. Boyum Average Weekly Wage, and therefore TTD benefits would be paid at the statutory minimum workers’ compensation rate.
On September 17, 2018, Mr. Boyum was injured while worked as a tree trimmer at Dvorak Tree Service, owned by Jim Dvorak and uninsured for workers’ compensation liability at the time. The Employer denied liability, claiming the Employee was an independent contractor. Mr. Boyum worked for Dvorak Tree Service sporadically from 2005 to 2012, June 2016 to June 2018, and August 2018 until the date of injury. He was paid $30.00 per hour when he performed ground work, and $40.00 per hour when his work required climbing trees. Neither Mr. Boyum nor Mr. Dvorak had any record of Mr. Boyum’s wages.
A hearing was held on September 19, 2019 and January 13, 2020 on whether Mr. Boyum was an independent contractor or an employee. The Judge determined Mr. Boyum was a re-current employee at the time of his injury, and that he worked as an independent contractor when he worked for other customers. The Judge also determined there was insufficient evidence to establish the Employee’s average weekly wage and awarded TTD benefits at the minimum workers’ compensation rate. The compensation judge noted that the employee could make a claim for underpayment if evidence substantiating a higher waged became available to the parties.
On appeal, the Employee argued that his work as a tree trimmer was affected by seasonal conditions and he should be awarded benefits based on the “five times the daily wage” calculation for seasonal employees under Minn. Stat. §176.011, subd. 8(a). The Employer asserted the five times the daily wage calculation is not an accurate representation of the employee’s earnings because tree trimming could be performed in the winter.
The WCCA determined that the compensation judge could not make any findings addressing the application of the seasonal employee provision, and that the compensation judge’s own comments that tree trimming was not done in certain weather conditions and tree trimming is a year-round business did not resolve the issue. Employees have been considered seasonal works in similar industries such as roofing and landscaping when the work is affected by climatic conditions, even where the employee is engaged in business all year. See Czech v. Bernard L. Dalsin Co., 43 W.C.D 534 (WCCA 1990). The Employer agreed the Employee earned $40.00 per hour when working as a climber and less when he performed groundwork. The compensation judge could have used this information to approximate the Employee’s daily wage and then a weekly wage as a seasonable employee.
WCCA vacated and remanded the matter to the compensation judge for specific findings on the issue of whether the employee worked “in an industry where the hours of work are affected by seasonal condition.”
Takeaway: When the average weekly wage is in dispute, it is a factual determination of the trier of fact. If a compensation judge does not make a factual determination at the time of the trial, the findings may be vacated and remanded back to the compensation judge in order for AWW to be determined.