The Employee retired at age 69 but then found a job as a part-time stock person for Menards where he averaged 20 – 21 hours a week. While in the course and scope of his employment, he slipped and hit his head on November 26, 2015 at 81 years old and died. The Employer and Insurer paid dependency benefits to his surviving spouse based on an average weekly wage of $205.18. The spouse asserted an underpayment and that the dependency benefit was not subject to the Employee’s average weekly wage, but rather should be paid based on “the number of hours normally worked in the employment or industry in which the injury was sustained.” Minn. Stat. 176.011, subd. 18.
At trial, multiple witnesses testified regarding the number of hours worked in the industry. The compensation judge found for the Employer and Insurer.
On appeal, the WCCA agreed with the dependent spouse and remanded the issue.
On remand, the compensation judge rejected the dependent spouse’s position that the amount should have been based on federal labor statistics of 33 hours each week. The judge adopted the expert opinion of Jan Lowe who concluded the number of hours was 24 hours, which would have resulted in a weekly payment of $260.40.
On appeal, the WCCA affirmed the compensation judge’s adoption of the vocational expert. There was nothing to show that the facts assumed by the judge were not supported by the evidence. The WCCA agreed that Minn. Stat. 176.011, Subd. 18 does not compel the use of the higher number, but rather the number that is reasonable. It would have been unreasonable to pay an Employee’s dependent at a right significantly higher than the actual earnings.
Ms. Low based her numbers by averaging the hours of worked by clerks at Menards, Lowe’s, and Home Depot as well as human resource team members at the Employer that all indicated an average of 20-28 hours worked.
Absent facts that are not supported by the evidence, the trier of fact’s choice of conflicting expert opinions is generally upheld. Minn. Stat. 176.011, Subd. 18 does not compel the use of the higher number, but rather the number that is reasonable.