Flowers v. St. Paul Pub. Schs.

Flowers v. St. Paul Pub. Schs., No. WC21-619 (W.C.C.A. November 24, 2021).

The Employee was a behavioral intervention specialist for the Employer, but also had a number of second jobs throughout his tenure. In 2018, he began providing personal care services for an individual client. These duties typically required the Employee to work four days per week for a total of 20 hours per week.

The Employee discontinued his care service in October 2019, although wage records indicate he did not provide any services from August 31 to September 21, 2019. His last pay period ended on November 8, 2019.

Then on November 18, 2019, while working for the Employee, he suffered a severely broken ankle. The Employer admitted the injury and paid benefits, including TTD and TPD. The amounts for these benefits were adjusted to include the Employee’s earning from the second employer.

In the following months, the Employer confirmed that the Employee had quit providing personal care services before the date of injury. Consequently, the self-insured Employer recalculated the Employee’s AWW without including income from the second employer and claimed an overpayment for the TTD and TPD benefits paid using the higher AWW calculation. Ultimately, the compensation judge found that the Employee was not regularly employed by the second employer at the date of injury, thereby finding that the Employer did not underpay the Employee.

On appeal, the Employee argued that the consistency of work performed over the 26 weeks prior to the work injury demonstrates that the compensation judge erred in their determination. The Employer maintains that the Employee was not regularly employed in the second job as of the date of injury.

The Workers’ Compensation Court of Appeals noted that the Employee testified that he left the second employer well before the date of injury. The Court confirmed that the Employee’s last date of work with the second employer was November 8, 2019. The Employee offered no evidence of any efforts made to either continue with a different client or find different work to replace the second job.

Ultimately, substantial evidence supported the compensation judge’s determination that the employee was not regularly employed by a second employer and that there was no underpayment of benefits.

Takeaway: The standard for calculating an employee’s AWW is to include the wages of two or more employers if he is regularly employed by both positions at the time of injury.