Certiorari was granted to review a decision of the workers’ compensation court of appeals affirming the calculation of the weekly wage of a construction worker.
The employee is a bricklayer in the construction industry. While employed by Bor-Son Construction Company, he sustained a compensable injury for which he received compensation first for temporary total disability and later for temporary partial disability. Within 90 days after he returned to work full-time, he was laid off for lack of work and received monitoring period compensation until he found a job with another employer. The compensation judge calculated employee’s weekly wage in accordance with the formula for the construction industry instead of the 26-week formula for irregular wages, the method used by the employer/insurer when paying benefits. Minn.Stat. § 176.011, subd. 3 (1990). On appeal, the WCCA affirmed under
Berry v. Walker Roofing Co.,
The employer/insurer contends the construction industry provision violates the equal protection clauses of the state and federal constitutions. We think not. Here, there is a rational distinction between part-time or irregular employment and the construction industry in which full-time employment is affected by seasonal conditions. Providing a simple method for computing the wage basis in the construction industry as full-time employment, rather than averaging the wages over one-half the year is rational. It would seem the employer/insurer’s challenge to the construction industry provision is more appropriately directed to the legislature for debate and deliberation.
See Moes v. City of St. Paul,
Affirmed.
The employee is awarded $400 in attorney fees.