Background

• Wheeler worked concurrently at Cinnabon, Westside Casino, and Get ’N’ Go; injuries occurred at one job (Cinnabon) but earnings from all concurrent employments were used to calculate AWW under three SDCL provisions; the ALJ and circuit court held only Cinnabon wages could be used; statutory definition of earnings is ambiguous; Court interprets in Wheeler’s favor and adopts aggregation across all concurrent employments; decision reverses ALJ and circuit court.
• The dispute centers on whether SD workers’ compensation AWW statutes permit aggregating wages from concurrent employments when injury occurs at one employment.
• SD statutes rely on earnings defined by SDCL 62-1-1(6) and use three methods (SDCL 62-4-24, 62-4-25, 62-4-26); ambiguity in the phrase “for the employment in which the employee was engaged at the time of his injury.”
• Court finds earnings definition ambiguous and interprets in injured employee’s favor to permit aggregation across concurrent employments.
• The court adopts the growing minority rule and holds aggregation is allowed to measure loss of earning capacity.

Issues

Key Cases Cited

• Hayes v. Rosenbaum Signs & Outdoor Adver., Inc., 853 N.W.2d 878 (S.D. 2014) (liberal construction favoring injured employee)
• Caldwell v. John Morrell & Co., 489 N.W.2d 353 (S.D. 1992) (workers’ compensation is remedial and liberal construction favored)