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Wheeler v. Cinna Bakers LLC

Supreme Court of South Dakota

May 6, 2015

PATRICIA 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

Considered on Briefs February 17, 2015.

Page 18

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA. THE HONORABLE MARK BARNETT, Judge.

JOLENE R. NASSER, N. DEAN NASSER, JR. of Nasser Law Office, PC, Sioux Falls, South Dakota, Attorneys for claimant and appellant.

RICHARD L. TRAVIS, ERIC D. DENURE, May & Johnson, PC, Sioux Falls, South Dakota, Attorneys for employer, insurer, and appellees.

GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.

OPINION

Page 19

GILBERTSON, Chief Justice

[¶1] Patricia Wheeler appealed the administrative law judge's (ALJ's) determination that she not be allowed to aggregate 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 three 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 SDCL 1-26-37,[2] the parties agree the question before the Court is one of statutory interpretation. Statutory interpretation is a question of law reviewed de novo. Whitesell v. Rapid Soft Water & Spas, Inc.,

Page 20

2014 S.D. 41, ¶ 6, 850 N.W.2d 840, 842 (citing Fair v. Nash Finch Co., 2007 S.D. 16, ¶ ...


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