Pаtricia WHEELER, Claimant and Appellant, v. CINNA BAKERS LLC, an Iowa Limited Liability Company, d/b/a Cinnabon (Empire Mall), Employer and Appellee, and Hartford Casualty Insurance Company, Insurer and Appellee.
No. 27170
Supreme Court of South Dakota.
May 6, 2015
2015 S.D. 25
Considered on Briefs Feb. 17, 2015.
have agreed in writing to a detailed shared parenting plan which provides that the child will reside no less than one hundred eighty nights per calendar year in each parent‘s home, and that the parents will share the duties and responsibilities of parenting the сhild and the expenses of the child in proportion to their incomes, and the shared parenting plan has been incorporated in the custody order, the court may, if deemed appropriate under the circumstances, grant a cross credit on the amount of the child support obligation based on the number of nights the child resides with each parent.
Motion for attorney fees
[¶ 15.] We grant Dorothea attorney fеes in the amount of $4,875, as requested pursuant to
[¶ 16.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.
Richard L. Travis, Eric D. Denure, May & Johnson, PC, Sioux Falls, South Dakota, Attorneys for employer, insurer, and appellees.
GILBERTSON, Chief Justice.
[¶ 1.] Patricia Wheeler appealed the administrative law judge‘s (ALJ‘s) determination that she not be allowed to aggregatе her wages from three separate employments in the calculation of her Average Weekly Wage (AWW). The circuit court affirmed the ALJ‘s determination. Wheeler appeals to this Court. We reverse.
Facts and Procedural History
[¶ 2.] Wheeler worked at the Cinnabon Store in the Empire Mall in Sioux Falls, South Dakota. Cinna Bakers, LLC, owns Cinnabon, which made Wheeler an employee of Cinna Bakers. Wheeler was also employed by Westside Casino and Get ‘N’ Go convenience store in Sioux Falls. Wheeler held all jobs concurrently in order to reach the earning level of full-time employment and had done so on a long-term basis with the intent of continuing indefinitely. While working at Cinnabon, Wheeler sustained two separate work-related injuries, which arose out of and in the course of her employment with Cinna Bakers. As a result of her injuries at Cinnabon, Wheeler was unable to work at Cinnabon and her two other concurrently held jobs.1 After initially denying Wheeler‘s claim, Cinna Bakers and its insurance company, Hartford Casualty Insurance Co., accepted Wheeler‘s injuries as compensable. However, the parties disputed whether income from all three of Wheeler‘s concurrent employments should be used to calculate her AWW. Wheeler filed a petition and asserted that all three of her concurrent employments should be aggregated to calculate her AWW. The ALJ determined that only Wheeler‘s wage from Cinna Bakers could be utilized to calculate her AWW. Wheeler appealed to the circuit court, and it affirmed. Wheeler now appeals to this Court.
[¶ 3.] Wheeler raises one issue:
Whether the ALJ and the circuit court erred in holding that Wheeler could not aggregate her earnings from threе separate employments to calculate her AWW after she was injured on the job at one employment.
Standard of Review
[¶ 4.] While our standard of review of an agency decision is set forth in
Decision
[¶ 5.] Wheeler asserts on appeal that the ALJ and the circuit court erred when they оnly used her wage from Cinna Bakers to determine her AWW. Wheeler argues her wages from all three of her concurrent employments should have been aggregated to calculate her AWW. In support of her argument, Wheeler points out that a majority of jurisdictions allow for the aggregation of wages from concurrent employments. Arthur Larson, Larson‘s Workers’ Compensation Law, § 93.03[1][a] (2014). Only a small number of states do not permit the aggregation of wagеs from concurrent employments. Id. Of the jurisdictions that allow for the aggregation of wages, most only permit aggregation when the employments are “similar” or “related.” Id. Most of the remaining jurisdictions that permit aggregation allow earnings to “be combined whether or not the employments were related or similar.” Id. Professor Larson calls this last position the “growing minority rule.” Id. Professor Larson endorses the “growing minority rule” whеn calculating the AWW.3
[¶ 6.] Although a majority of jurisdictions aggregate the AWW in some manner, we have not yet addressed whether South Dakota‘s workers’ compensation scheme permits the aggregation of wages from concurrent employments when, as here, the injuries arose out of and in the course of only one of those employments. While other jurisdictions and Professor Larson may provide persuasive аuthority on the matter, the issue before the Court is one of statutory interpretation. The primary purpose of statutory interpretation is to discover legislative intent. Bostick v. Weber, 2005 S.D. 12, ¶ 7, 692 N.W.2d 517, 519 (citing State v. Myrl & Roy‘s Paving, Inc., 2004 S.D. 98, ¶ 6, 686 N.W.2d 651, 653). Our first step in determining legislative intent is to look at the plain language of the statute. See City of Rapid City v. Anderson, 2000 S.D. 77, ¶ 7, 612 N.W.2d 289, 291 (quoting Dahn v. Trownsell, 1998 S.D. 36, ¶ 14, 576 N.W.2d 535, 539). “Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court‘s only function is to declare the meaning of the statute as clearly expressed.” Id. “A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses.” Petition of Famous Brands, Inc., 347 N.W.2d 882, 886 (S.D. 1984) (quoting Nat‘l Amusement Co. v. Wis. Dep‘t of Taxation, 41 Wis. 2d 261, 163 N.W.2d 625, 628 (1969)). If statutes are ambiguous or lead to absurd and unreasonable results, we will utilize the rules of statutory construction to discover the true legislative intent. See id. at 885; Anderson, 2000 S.D. 77, ¶ 7, 612 N.W.2d at 291 (quoting Dahn, 1998 S.D. 36, ¶ 14, 576 N.W.2d at 539); State v. Davis, 1999 S.D. 98, ¶ 7, 598 N.W.2d 535, 537-38. Additionally, if we conclude the language of the
[¶ 7.] Our first step is to analyze the plain meaning of the statutes in question. Workers’ compensation statutes рrescribe the calculation for the AWW. There are three statutes that apply to such calculations. The first statute provides:
As to an employee in an employment in which it is the custom to operate throughout the working days of the year, and who was in the employment of the same employer in the same grade of employment as at the time of the injury continuously for fifty-two weeks next preceding thе injury, except for any temporary loss of time, the average weekly wage shall, where feasible, be computed by dividing by fifty-two the total earnings of the employee as defined in subdivision 62-1-1(6), during the period of fifty-two weeks. However, if the employee lost more than seven consecutive days during the period of fifty-two weeks, then the division shall be by the number of weeks and fractions thereof that the employee actually worked.
[¶ 8.] The second method prescribed by statute is not utilized unless
As to an employee in an employment in which it is the custom to operate throughout the working days of the year, but who is not covered by § 62-4-24, the average weekly wages shall, where feasible, be ascertained by computing the total of the employee‘s earnings during the period the employee worked immediately preceding the employee‘s injury at the same grade of employment for the employer by whom the employee was employed at the time of the employee‘s injury, and dividing such total by the number of weeks and fractions thereof that the employee actually worked. However, if such method of computation produces a result that is manifestly unfair and inequitable or if by reason of the shortness of time during which the employee has been in such employmеnt, or the casual nature or terms of the employment, it is impracticable to use such method, then regard shall be had to the average weekly amount which during fifty-two weeks previous to the injury was being earned by a person in the same grade, employed at the same work, by the same employer, or if there is no person so employed, by a person in the same grade, employed in the same class of employment in the same general locality.
[¶ 9.] The third statute is used to calculate the AWW if neither
As to an employee in an employment in which it is the custom to operate throughout the working days of the year and where the situation is such that it is not reasonably feasible to determine the average weekly wages in the manner provided in § 62-4-24 or 62-4-25, the average weekly wages shall be deter-
mined by multiplying the employee‘s average day‘s earnings by three hundred, and dividing by fifty-two.
[¶ 10.] All three AWW statutes utilize the definition of “earnings” as defined by
“Earnings,” the amount of compensation for the number of hours commonly regarded as a day‘s work for the employment in which the employee was engaged at the time of his injury. It includes payment for all hours worked, including overtime hours at straight-time pay, and does not include any sum which the employer has been accustomed to pay the employee to cover any spеcial expense entailed by him by the nature of his employment; wherever allowances of any character made to an employee in lieu of wages are specified as a part of the wage contract, they shall be deemed a part of his earnings[.]
[¶ 11.] The critical phrase in
[¶ 12.] The phrase “for the employment in which the employee was engaged at the time of his injury“—in
[¶ 13.] Moreover, “engaged” is not defined by our workers’ compensation stat-
[¶ 14.] Our interpretation is further buttressed by our rules of statutory construction. First, the AWW statutes indicate a worker‘s total earnings should be used to calculate the AWW. See
Our [workers’ compensation laws are] designed to compensate an employee or his family for the loss of his income-earning ability which loss is occasioned by an injury, disablement, or death because of an employment related accident, casualty, or disease. [Workers’ compensation] guarantees employees compensation irrespective of tort law considerations and in return employees forego the right to a one hundred percent recovery. Employers, on the other hand, accept responsibility for injuries they might not otherwise be responsible
for at common law and in return their liability is fixed and limited.
489 N.W.2d at 362 (emphasis added). “[S]tatutes [are] governed by one spirit and policy, and [are] intended to be consistent and harmonious in their several parts and provision.” Lewis & Clark Rural Water Sys., Inc. v. Seeba, 2006 S.D. 7, ¶ 12, 709 N.W.2d 824, 831 (quoting M.B. v. Konenkamp, 523 N.W.2d 94, 98 (S.D. 1994)) (alterations in Lewis & Clark Rural Water Sys., Inc.).
[¶ 15.] Third, when the circuit court affirmed the ALJ and rеasoned that the workers’ compensation statutory scheme did not permit aggregation of wages, the circuit court noted, “[C]arriers would be forced to set higher premiums to cover unknown risks,” (i.e., wages earned at unknown other jobs). The circuit court also noted that requiring the employer to pay higher rates to cover an employee‘s other jobs or lost income-earning ability would be “manifestly unfair.” While it is true higher rates are undesirable, Professor Larson responds:
[F]airness to the employee and fairness to the employer/carrier are not symmetrical, and cannot be judged by the same standards. To this one employee, this one loss is everything—he or she has nothing against which to offset. To the employer, and even more to the carrier, this is just one case among many. . . . Today this employer-carrier may be saddled with a slight extra cost; tomorrow positions may be reversed. . . . Concurrent employment is by no means the only compensation situation in which employers and carriers must console themselves with the reminder that these things will all “wash out” in the end. . . . For the injured worker, however, there is no such consolation. That worker, alone, bears the burden of being reduced to $20 a week when his or her actual earnings may have been five times that much. That is real unfairness. By comparison, the “unfairness” to the employer, in the form perhaps of a slight premium increase, eventually offset by the times he or she will benefit by the same rule, is an artificial construct with no genuine content.
Larson, supra ¶ 5, at § 93.03[1][c]; see also Foreman v. Jackson Minit Markets, Inc., 265 S.C. 164, 217 S.E.2d 214, 216-17 (1975) (interpreting substantially similar statutes to those of South Dakota and holding the definition of “earnings” did not preclude aggregation of wages because aggrеgation of wages was the only fair way to compensate employees for lost earning capacity).
[¶ 16.] Lastly, we are persuaded to adopt the “growing minority rule,” as Professor Larson calls it, and allow for aggregation of wages from all concurrently held employments, not just similar or related employments. We see no reason why the employments must be similar or related if workers’ compensation “is designed to compensate an employee or his family for the loss of his income-earning ability.” Caldwell, 489 N.W.2d at 362 (emphasis added). Professor Larson states:
The rule refusing to combine earnings from concurrent employments unless they are “similar” or “related” is unnecessary from the point of view of statutory construction, unsound as a matter of accomplishing the purposes of the legislation, inhumane from the point of view of the claimant, and logically absurd as to the distinctions on whiсh it is based.
Larson, supra ¶ 5, at § 93.03[1][c].
Conclusion
[¶ 17.] The definition of “earnings” in
[¶ 18.] ZINTER, SEVERSON, WILBUR and KERN, Justices, concur.
Notes
Both injuries additionally required treatment for dental injuries, twenty-four sessions of occupational therapy, seven weeks off from all three of [Wheeler‘s] concurrently held jobs, and several weeks of reduced hours and restrictions while transitioning to full-time work (each injury).
An aggrieved party or the agency may obtain a rеview of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law, and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.
From the point of view of achieving a result that makes sense in relation to the claimant‘s real earning capacity in the past and future, . . . the only satisfactory calculation, particularly when the hourly rate of pay in the concurrent jobs is sharply different, is to combine the еarnings in the [concurrent] jobs, rather than to round out to a full-time basis the hourly rate in the employment in which claimant was engaged at the time of injury.
Larson, supra ¶ 5, at § 93.03[3].