Powell v. Estate Gardeners

suppress filed by Gorup. additionally, the district court should
have considered the appropriate factors described herein to
determine whether Gorup’s consent was an exploitation of the
prior search. We therefore vacate the judgment of conviction
and sentence, and we remand the cause for a new hearing on
Gorup’s motion to suppress consistent with this opinion.
J udgMenT vacaTed , and cause
reManded WITh dIrecTIons .
B randon poWell , appellee , v . esTaTe gardeners , I nc .,
and auTo oWners I nsurance , ITs Workers ’
coMpensaTIon Insurer , appellanTs .
745 N.W.2d 917
Filed March 21, 2008. 	No. s-07-855.
1. Workers’ Compensation: Statutes: Appeal and Error. the meaning of a statute
is a question of law, and an appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.
2. Workers’ Compensation. the Nebraska Workers’ Compensation act is designed
to compensate an injured worker for the loss of earning capacity caused by
the injury.
3. ____. the Nebraska Workers’ Compensation act is construed liberally to carry
out its spirit and beneficent purposes.
4. Workers’ Compensation: Time. Where the worker has insufficient work history
to be able to calculate his or her average weekly income based on as much of the
preceding 6 months as he or she worked for the same employer, then what would
ordinarily constitute that employee’s week’s work and, thus, that employee’s
average weekly income should, if possible, be estimated by considering other
employees working similar jobs for similar employers. Where available, such
similar employees’ work records should be considered for the 6-month period
prior to the accident.
appeal from the Workers’ Compensation Court. reversed and
remanded for further proceedings.
Jon s. reid and Molly M. Lukenbill, of Lamson, Dugan &
Murray, L.L.p., for appellants.
ryan C. Holsten and brynne e. Holsten, senior Certified
Law student, of atwood, Holsten & brown, p.C., L.L.o.,
for appellee.
poWeLL v. estate GarDeNers 	287
Cite as 275 Neb. 287
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

288 	275 Nebraska reports
heavIcan , 	c.J., 	W rIghT, 	connolly , 	gerrard , 	sTephan ,
M ccorMack , and MIller -lerMan , JJ.
M ccorMack , J.
NatUre oF Case
on august 22, 2005, brandon powell was hired by estate
Gardeners, Inc., as a crewmember paid at the rate of $12 per
hour. When he was hired, powell understood that his hours
would vary from day to day, but that he would average 50 to 60
hours per week during busy periods. powell was injured on his
first day of work after working 11.25 hours. the only issue in
this case is the proper method of determining powell’s “aver-
age weekly income,” as defined by Neb. rev. stat. § 48-126
(reissue 2004).
FaCts
estate Gardeners is in the business of residential landscape
design, installation, and maintenance. Michael becker, the
chief executive officer and co-owner of estate Gardeners,
testified that the busiest time of the year for the company is
from april to July. then, there is a “slow down” in July and
august, followed by a “fall rush” from the end of september
into october. employees would “try to work 40 hours a week
typically in the regular season.” During busier periods, it was
“perfectly feasible” that employees might work 50 to 60 hours
a week, Monday through saturday. becker explained that this
is an “upper limit,” however, because it was company policy
that employees not exceed 60 hours per week. employees are
occasionally asked to work saturdays, but they never worked
on sundays.
according to becker, winter was the most unpredictable
time for the company. If the winter was mild, then they worked
fairly regularly, but, if not, there were weeks when they could
not work at all. the company does do snow removal, paving,
and other projects when possible. becker stated that in the 14
years that estate Gardeners had been in operation, his employ-
ees had never worked continuously throughout the winter at a
rate of 40 hours or more per week. still, if there was work, they
would try to keep the “key people busy and employed with us

[year round] so that we have them come back the next season.”
becker explained that the employees with the most seniority
would get the first hours available.
becker testified that his wife had analyzed timesheets for
employees who had worked year round from the period of May
through the following March. becker does not specifically state
what years he is referring to, but states that this period involved
the “entire year surround[ing]” powell’s injury. the actual data
is not in evidence, but becker testified that the average number
of hours per week of these employees who worked year round
was “in the 30s.”
a letter to powell from estate Gardeners’ workers’ compen-
sation insurer indicates that the average hours of other crew-
members for the week of august 22 to 26, 2005, was 41. the
following week’s average was 45 hours, but this increase was
attributed to the loss of powell.
becker stated that at the time he hired powell, he discussed
with powell the “seasonality” of the work. He made no guaran-
tees about winter work, but indicated to powell that those “who
showed the most initiative and the most promise would be the
ones who got those hours in the winter.”
powell had prior experience in the landscape industry and
knew that available working hours vary and are somewhat
dependent on the weather. according to powell, becker told
him that while he “could not guarantee hours,” he “could give
[powell] approximately 50 to 60 hours a week.” powell stated
more specifically that becker told him he would “typically” be
able to work 50 to 60 hours per week. these hours would gen-
erally be worked Monday through Friday. powell was also told
that “they occasionally worked saturdays, but not that often.”
powell’s home was located approximately 1 hour 15 minutes
from estate Gardeners’ office. powell explained, however, that
he accepted a job with estate Gardeners over other offers from
local landscaping companies because he thought the overtime
made the longer commute worthwhile. powell stated that he
was aware that he might not be working 50 to 60 hours per
week in the winter, but that becker “also said there was plenty
of work to do in the wintertime” because he had contracts to
put in “paver” driveways.
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Cite as 275 Neb. 287

290 	275 Nebraska reports
When he was injured, powell had worked 11.25 hours. a
letter from estate Gardeners’ workers’ compensation insurer
indicates that 2.5 of those hours were consumed by filling out
paperwork required of new employees and traveltime to the
jobsite. after the injury, powell waited in the foreman’s truck
for 4 or 5 minutes until the rest of the crew finished the job
and was ready to go home. estate Gardeners’ workers’ com-
pensation insurer calculated powell’s average weekly wage in
accordance with the 41-hour workweek that powell’s coworkers
worked the week powell was injured. the insurer thus calcu-
lated powell’s average weekly wage as $492 and voluntarily
paid workers’ compensation benefits at a rate of $328 per week.
powell disputed the insurer’s weekly wage calculation and
filed a petition in the Workers’ Compensation Court alleging a
weekly wage of $600.
the single judge of the Workers’ Compensation Court referred
to the testimony regarding becker and powell’s understanding
of the hours powell would work, as well as the evidence as to
the average hours worked by other estate Gardeners’ employ-
ees. the judge explained that he had reviewed statements that
hours varied from 30 to 50 hours per week. Without delineating
the precise basis of his calculation, the judge then concluded
that powell had shown, by a preponderance of the evidence,
that powell’s average weekly wage would encompass a normal
and customary work period of 45 hours per week. at $12 per
hour, this resulted in an average weekly wage of $540 per week
and temporary total disability benefits of $360 per week.
powell appealed the single judge’s determination to the
review panel. He argued that the average weekly wage determi-
nation was in error and that the single judge had failed to issue
a reasoned decision pursuant to Workers’ Comp. Ct. r. of proc.
11(a) (2006). estate Gardeners and its insurer cross-appealed.
the review panel considered the question of powell’s weekly
wage to be a matter of law. the panel stated that powell’s
contract for hire was for “continuous” employment “in excess
of 40 hours per week.” It determined that under § 48-126,
because the only evidence was that powell worked 11.25 hours
for 1 day before his injury and the evidence was that he would
normally work 5 days per week, the panel was obligated to

determine powell’s average weekly wage by multiplying 11.25
by $12 per hour by 5 days, for a total weekly wage calcula-
tion of $675. estate Gardeners and its workers’ compensation
insurer appeal.
assIGNMeNts oF error
the appellants assert that (1) the review panel erred in find-
ing that powell’s average weekly wage should be based upon
56.25 hours a week and (2) the single judge erred in failing to
provide a clearly and concisely stated explanation of its ration-
ale for its decision.
staNDarD oF revIeW
[1] the meaning of a statute is a question of law, and an
appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law.1
aNaLYsIs
Compensation 	for 	total 	disability 	is 	calculated 	at 	662⁄3
percent “of the wages received at the time of injury.”2 “Wages,”
in turn, are defined by § 48-126, which provides in rele-
vant part:
Wherever in the Nebraska Workers’ Compensation act
the term wages is used, it shall be construed to mean the
money rate at which the service rendered is recompensed
under the contract of hiring in force at the time of the acci-
dent. . . . In continuous employments, if immediately prior
to the accident the rate of wages was fixed by the day or
hour or by the output of the employee, his or her weekly
wages shall be taken to be his or her average weekly
income for the period of time ordinarily constituting his
or her week’s work, and using as the basis of calculation
his or her earnings during as much of the preceding six
months as he or she worked for the same employer . . . .
the calculation shall also be made with reference to the
average earnings for a working day of ordinary length and
exclusive of earnings from overtime; Provided, that if the
1 Knapp v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (2007).
2 Neb. rev. stat. § 48-121 (reissue 2004).
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292 	275 Nebraska reports
insurance company’s policy of insurance provides for the
collection of a premium based upon such overtime, then
such overtime shall become a part of the basis of deter-
mining compensation benefits.
the parties seem to agree that powell’s job as a landscaping
crewmember was nonseasonal3 and that it was continuous.4
Neither party challenges the review panel’s conclusion to this
effect. For purposes of this appeal, then, we assume that
powell’s employment was nonseasonal and continuous and,
like the parties, focus our analysis on the last two sentences
of § 48-126, which describe the method of calculating average
weekly wage for nonseasonal, continuous employees who are
paid by the hour.
the question presented is how to calculate an “average weekly
income” for an hourly employee when that employee’s contract
for hire contemplated a varying number of hours and when the
employee was injured on the first day of work. this is a ques-
tion of statutory interpretation, which, as a question of law, is
determined by our court independently of the courts below.5
powell argues that the review panel was correct in extrapo-
lating an average weekly wage from the number of hours
of powell’s 1 day of work, by multiplying these hours by
powell’s expectation of working 5 days per week. according
to powell, this calculation method is mandated by § 48-126
when it states that average weekly wage should be calculated
“using as the basis of calculation his or her earnings during as
much of the preceding six months as he or she worked for the
same employer.”
We disagree. as noted by the court in Riley v. Indus. Comm.,6
provisions basing an average wage on past earnings presuppose
3 see, Elrod v. Prairie Valley, 214 Neb. 697, 335 N.W.2d 317 (1983);
Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939); Hogsett v. Cinek
Coal & Feed Co., 127 Neb. 393, 255 N.W. 546 (1934).
4 Clifford v. Harchelroad Chevrolet, 229 Neb. 78, 425 N.W.2d 331 (1988);
Weitz v. Johnson, 143 Neb. 452, 9 N.W.2d 788 (1943); Carlson v. Condon-
Kiewit Co., 135 Neb. 587, 283 N.W. 220 (1939).
5 see Knapp v. Village of Beaver City, supra note 1.
6 Riley v. Indus. Comm., 9 ohio app. 3d 71, 458 N.e.2d 428 (1983).

the usual circumstance where the claimant has been employed
during the period upon which the average is calculated. this is
not to say that a calculation cannot be made when the employee
has not worked for the full preceding 6 months described in
§ 48-126. In a case such as this, however, where the employee
has worked less than even a single week, it is impossible to
calculate an “average weekly income” based simply upon “as
much of the preceding six months as he or she worked for the
same employer.”
an “average” is generally obtained by adding several quan-
tities together and then dividing this total by the number of
quantities.7 but even if we were to accept an “average” based
on a single quantity, that quantity under § 48-126 would be a
week and not a day. We do not have even 1 week from which to
base an average weekly wage in this case. the court in Miller v.
Industrial Commission,8 in considering a provision fixing com-
pensation upon the employee’s average monthly wage, similarly
explained, “the import of the word ‘average’ . . . is that there
must be a base period of more than one month upon which to
determine a claimant’s wage.”
What powell supports, and what the review panel did, was
not to determine the average weekly income based upon “as
much of the preceding six months as he or she worked.” the
court instead assumed that powell would have worked exactly
11.25 hours every day of a 5-day workweek without analyz-
ing whether this was in fact likely. the review panel then
projected this assumption into the past to create an average
weekly income through a mathematical calculation it appar-
ently believed was mandated by the plain language of § 48-126.
We conclude that by conducting such a limited projection, the
review panel did not follow the strict language of § 48-126.
It also ignored other language of the statute pertinent to these
admittedly unique circumstances.
Most workers’ compensation statutes in other jurisdictions
make explicit provision for scenarios where the employee
has not worked for a sufficient period of time for an average
7 see Concise Oxford American Dictionary 55 (2006).
8 Miller v. Industrial Commission, 113 ariz. 52, 54, 546 p.2d 19, 21 (1976).
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294 	275 Nebraska reports
income to be calculated based upon that employee’s past earn-
ings.9 the most common type of wage basis statute allows that
where the employee has not worked “substantially the whole”
of the normal period, then the average wage may be based on
employees of the same class working the necessary period in
the same or similar employment and place.10
In the event that this formula cannot be fairly applied, most
statutes also expressly provide a “catchall” provision, allowing
other methods of calculation in order to achieve a result that
is a reasonable representation of the earning capacity of the
injured employee.11 as explained by professor Larson, the goal
of any average income test is to produce an honest approxima-
tion of the claimant’s probable future earning capacity.12 In the
case of temporary disability, as opposed to permanent disabil-
ity, courts agree that at the very least, the goal is to ascertain
the claimant’s expected short-term wage.13
section 48-126 does not provide direction as explicit as other
states’ statutory schemes. It does, however, emphasize that the
average weekly wage for an hourly employee is to be based
on “his or her average weekly income for the period of time
ordinarily constituting his or her week’s work.” (emphasis sup-
plied.) It further states that the calculation of an average weekly
wage “shall also be made with reference to the average earnings
of a working day of ordinary length.” (emphasis supplied.)
In prior Nebraska case law, we have explained that the addi-
tion of the language “‘ordinarily constituting his or her week’s
work’” precludes an automatic mathematical calculation based
on the past 6 months’ work.14 thus, abnormally low output or
weekly hours due to illness or vacation will not be averaged
9 see 5 arthur Larson & Lex k. Larson, Larson’s Workers’ Compensation
Law § 93.01 (rev. ed. 2007).
10 see id. at 93-6.
11 see id. at 93-9.
12 see id., §§ 93.01[1][e], 93.01[1][f], and 93.02[2][d].
13 see id., § 93.02[3][d].
14 Canas v. Maryland Cas. Co., 236 Neb. 164, 167, 459 N.W.2d 533, 536
(1990) (emphasis supplied). accord Clifford v. Harchelroad Chevrolet,
supra note 4.

in.15 as explained by the Nebraska Court of appeals in Griffin
v. Drivers Mgmt., Inc.,16 the “key” to such cases is our emphasis
on “not distorting” the employee’s average weekly wage.
If there can be no “ordinary” working hours for a particular
employee based upon his or her actual, individual work history,
then it may be necessary, if possible, to extrapolate an “ordi-
nary length” and a period “ordinarily constituting his or her
week’s work” from coworkers in the same position for the same
employer.17 Using data from coworkers to estimate the employ-
ee’s ordinary week’s work is simply a fairer approximation, to
both employees and employers, than to multiply a single day’s
hours by 5 days a week when the job contemplates variable
hours. the statute does not, as already discussed, mandate an
inflexible calculation based only upon the injured employee’s
work history. Nor does the statute prohibit evidence of similar
employees in similar employment.
In Berry v. Walker Roofing Co.,18 the court was likewise
faced with a situation where an employee was injured after
completing only a few hours of piecework. the statutory
scheme did not explicitly provide the method for calculating an
average wage under such circumstances. the court held that it
could determine the employee’s average weekly wage by infer-
ring the wages the employee “‘could have earned.’”19 the court
held that it could make this determination based on the wages
actually paid to another employee doing similar work.
In so doing, the court explained that the object of the wage
determination is to arrive at a fair approximation of the employ-
ee’s probable future earning power, which has been impaired
or destroyed because of injury. the compensation judge can,
of necessity, use only the information that is available. Under
15 see, also, Arbtin v. Puritan Mfg. Co., 13 Neb. app. 540, 696 N.W.2d 905
(2005).
16 Griffin v. Drivers Mgmt., Inc., 14 Neb. app. 722, 731, 714 N.W.2d 749, 757
(2006).
17 see § 48-126.
18 Berry v. Walker Roofing Co., 473 N.W.2d 312 (Minn. 1991).
19 Id. at 315 (emphasis supplied), quoting Johnson v. D. B. Rosenblatt, Inc.,
265 Minn. 427, 122 N.W.2d 31 (1963).
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296 	275 Nebraska reports
the circumstances presented where the employee was injured
shortly after beginning his employment, a wage calculation
based on the average weekly wage of that employee’s cowork-
ers was simply “more reliable than a speculative extrapolation
of [the injured employee’s] earning capacity based on a few
hours of work.”20
[2,3] Like other workers’ compensation acts, the Nebraska
Workers’ Compensation act is designed to compensate an
injured worker for the loss of earning capacity caused by the
injury.21 our court must apply a liberal construction to the act
to carry out its spirit and beneficent purposes.22 Certainly, had
powell been injured on his first day of work on a shortened
day during the winter, or had he been injured after only part
of his day’s work, he would not be urging that § 48-126 must
be interpreted to mandate a mathematical extrapolation of that
day’s work multiplied by 5 days a week. such a calculation
would not be an accurate reflection of powell’s temporary loss
of earning capacity and thus would not carry out the beneficent
purposes of the act.
[4] We conclude that where the worker has insufficient
work history to be able to calculate his or her average weekly
income based on “as much of the preceding six months as he
or she worked for the same employer,” then what would “ordi-
narily” constitute that employee’s week’s work and, thus, that
employee’s “average weekly income” should, if possible, be
estimated by considering other employees working similar jobs
for similar employers.23 Where available, such similar employ-
ees’ work records should be considered for the 6-month period
prior to the accident.
From the record before us, we cannot determine the average
week’s work of powell’s other crewmembers for the 6 months
preceding powell’s accident. We therefore reverse the order of
the review panel and remand the cause for further proceedings
20 Id. at 316.
21 see Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).
22 see Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d
634 (2003).
23 see § 48-126.

in accordance with this opinion. Having so concluded, we need
not address the appellants’ remaining assignment of error.
reversed and reManded for
furTher proceedIngs .
poWeLL v. estate GarDeNers 	297
Cite as 275 Neb. 287