MEMORANDUM OPINION
GARRETT, Chief Judge:
The only issue in this proceeding is whether the three judge panel correctly determined Claimant’s weekly compensation rate at $30.00. Her Counter-Petition for Review, filed December 5, 1994, has been dismissed by the court.
Respondent, Sherrie Owens (Claimant), filed her Form 3 in the Workers’ Compensation Court on February 28,1994, alleging she sustained an accidental injury arising out of and in the course of her employment with Petitioner, Data Monitor Systems, Inc. (Employer). She alleged she sustained an injury on February 10, 1994, to her left leg while sliding down an aircraft evacuation device.
Claimant testified she was hired by Employer to be a subject for evacuation testing at the FAA. She was told she would receive $10.00 per hour and would work a minimum of four hours per day worked. Her employment would be on an irregular, as needed, basis, and she could work when Employer was performing those tests. She said she was to call first to determine whether she would be needed. She worked 4⅜ hours the first day, which was the day of her injury. She testified she was paid a total of $45.00 for the day she worked plus $40.00 for the next day even though she did not work the second day because of her injury. Her total gross pay was $85.00.
[1131]*1131In calculating Claimant’s weekly rate of compensation, the trial court made findings that she did not qualify under subsections 1, 2 or 3 of 85 O.S.Supp.1992 § 21. The trial court ruled:
THAT claimant’s compensation rate for both temporary total disability and permanent partial disability falls under Section 21, subsection 4 and the only earnings established are a total of $85.00 including the state (sic) of accidental injury and the following day. Any further employment of claimant by respondent is based on speculation. Therefore, the only earnings established by claimant is $85.00 resulting in an average weekly wage of $1.63.
On August 3,1994, the trial court entered its order, awarding Claimant compensation for temporary total disability from February 11, 1994, and continuing, at the rate of $1.63 per week, not to exceed 150 weeks. Determination of permanent disability sustained, if any, was reserved for future hearing.
Claimant filed a Request for Review in the Workers’ Compensation Court. On October 26,1994, a three judge panel of the Court En Banc entered its order and found parts of the trial court’s order were contrary to law and against the clear weight of the evidence. The panel modified and affirmed the order, as follows:
VACATE PARAGRAPHS 4, 5, 6, 7, 8 AND 13 AND ENTER THE FOLLOWING IN LIEU THEREOF AND ALLOW FOR THE RE-NUMBERING OF THE REMAINING PARAGRAPHS IN CONSECUTIVE ORDER:
-L-
THAT at the time of said injury, claimant’s wages were sufficient to establish the rates of compensation at $30.00 per week for temporary total disability and $30.00 per week for permanent partial disability.
-5.-
THAT as a result of said injury, claimant has been temporarily totally disabled from FEBRUARY 11, 1994 and is still temporarily totally disabled and in need of further medical treatment, care, and attention, and is entitled to compensation for such disability. Compensation has been paid from FEBRUARY 11, 1994 to AUGUST 3, 1994 at the rate of $30.00 per week. Respondent is to receive credit for the portion of compensation paid after AUGUST 3, 1994. Compensation is due from the date of the last payment and continue at the rate of $30.00 per week, not to exceed 150 weeks.
Employer filed this review proceeding on November 15, 1994, and contends the court en banc erred in changing the rate of compensation from $1.63 per week to $30.00 per week. Employer contends that in its October 26, 1994 order, the three judge panel must have reasoned it had an obligation to set a minimum rate of $30.00 under 85 O.S.Supp.1993 § 22(6). Employer argues that instead, sub-sections 1, 2 & 3 of section 21 must be read in conjunction with § 22(6).
Average annual and weekly earnings, or earning capacity, are determined under 85 O.S.Supp.1992 § 21.1 The actual amount of [1132]*1132compensation is determined under 85 O.S.Supp.1993 § 22.2 First, the amount of average and weekly earnings, or earning capacity, must be determined by application of the appropriate sub-section of § 21, then it is necessary to apply the appropriate sub-section of § 22 [sub-section 1, 2 or 3], to determine the weekly rate of compensation. That weekly rate must be tested by § 22(6),3 to determine whether the weekly rate exceeds the maximum or is less than the minimum allowed.
The trial court’s calculation of $1.63 per week was based on [annual] earnings of $85.00, the total amount employer paid Claimant, multiplied by ⅛. This was error. We agree with the trial court that 85 O.S.Supp.1992 §§ 21(1) and (2) are not applicable to this case. However, we disagree with the trial court that sub-section 3 of § 21 does not apply. Incidentally, § 21(4) applies in all cases.
Citing its opinion in Skelly Oil Co. v. Ellis, 176 Okl. 569, 56 P.2d 891, 894-896 (1936), the Supreme Court held in Safeway Stores v. Mauk, 275 P.2d 987, 990 (Okl.1954):
that the rate of compensation of an injured employee who has worked at intervals aggregating less than ‘substantially the whole’ of the year previous to his injury, should be based, not upon his ‘average annual earnings’, as specified in paragraphs 1 and 2, section 21, supra, but upon his ‘annual earning capacity’ as specified in paragraph 3 of said section. ... (Emphasis added).
[T]he question of which of the first three numbered paragraphs of section 21, supra, applies cannot always be entirely a question of fact. Usually it is a mixed question of law and fact. In other words, the determination of whether or not a given claimant has ‘worked in the employment in [1133]*1133which he was working at the time of the accident * * * during substantially the whole of the year immediately preceding his injury * * *’ is a question of fact. But, after this question has been determined, the question of which of the first two numbered paragraphs or subsections of section 21, supra, applies is solely a question of law. Likewise, where it is undisputed that the claimant has worked throughout that year, but his total working time does not amount to ‘substantially the whole of the year’, then it is merely a question of law, or legal interpretation, as to which of the three paragraphs should be applied....
In Winrock Farms v. Eldred, 446 P.2d 265 (Okl.1968), the Supreme Court cited Safeway Stores v. Mauk, supra, reaffirming its holding that 85 O.S. [Now, Supp.1992] § 21(8) must be used when employment is part-time or seasonal. The Court ruled § 21(3) is the appropriate sub-section of section 21 to arrive at “annual earning capacity”, to “be fair to both employer, his insurance carrier, and such an employee or claimant.” On remand, the court must determine annual and weeHy earning capacity in accordance with the requirements of § 21(3) and § 21(4).
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MEMORANDUM OPINION
GARRETT, Chief Judge:
The only issue in this proceeding is whether the three judge panel correctly determined Claimant’s weekly compensation rate at $30.00. Her Counter-Petition for Review, filed December 5, 1994, has been dismissed by the court.
Respondent, Sherrie Owens (Claimant), filed her Form 3 in the Workers’ Compensation Court on February 28,1994, alleging she sustained an accidental injury arising out of and in the course of her employment with Petitioner, Data Monitor Systems, Inc. (Employer). She alleged she sustained an injury on February 10, 1994, to her left leg while sliding down an aircraft evacuation device.
Claimant testified she was hired by Employer to be a subject for evacuation testing at the FAA. She was told she would receive $10.00 per hour and would work a minimum of four hours per day worked. Her employment would be on an irregular, as needed, basis, and she could work when Employer was performing those tests. She said she was to call first to determine whether she would be needed. She worked 4⅜ hours the first day, which was the day of her injury. She testified she was paid a total of $45.00 for the day she worked plus $40.00 for the next day even though she did not work the second day because of her injury. Her total gross pay was $85.00.
[1131]*1131In calculating Claimant’s weekly rate of compensation, the trial court made findings that she did not qualify under subsections 1, 2 or 3 of 85 O.S.Supp.1992 § 21. The trial court ruled:
THAT claimant’s compensation rate for both temporary total disability and permanent partial disability falls under Section 21, subsection 4 and the only earnings established are a total of $85.00 including the state (sic) of accidental injury and the following day. Any further employment of claimant by respondent is based on speculation. Therefore, the only earnings established by claimant is $85.00 resulting in an average weekly wage of $1.63.
On August 3,1994, the trial court entered its order, awarding Claimant compensation for temporary total disability from February 11, 1994, and continuing, at the rate of $1.63 per week, not to exceed 150 weeks. Determination of permanent disability sustained, if any, was reserved for future hearing.
Claimant filed a Request for Review in the Workers’ Compensation Court. On October 26,1994, a three judge panel of the Court En Banc entered its order and found parts of the trial court’s order were contrary to law and against the clear weight of the evidence. The panel modified and affirmed the order, as follows:
VACATE PARAGRAPHS 4, 5, 6, 7, 8 AND 13 AND ENTER THE FOLLOWING IN LIEU THEREOF AND ALLOW FOR THE RE-NUMBERING OF THE REMAINING PARAGRAPHS IN CONSECUTIVE ORDER:
-L-
THAT at the time of said injury, claimant’s wages were sufficient to establish the rates of compensation at $30.00 per week for temporary total disability and $30.00 per week for permanent partial disability.
-5.-
THAT as a result of said injury, claimant has been temporarily totally disabled from FEBRUARY 11, 1994 and is still temporarily totally disabled and in need of further medical treatment, care, and attention, and is entitled to compensation for such disability. Compensation has been paid from FEBRUARY 11, 1994 to AUGUST 3, 1994 at the rate of $30.00 per week. Respondent is to receive credit for the portion of compensation paid after AUGUST 3, 1994. Compensation is due from the date of the last payment and continue at the rate of $30.00 per week, not to exceed 150 weeks.
Employer filed this review proceeding on November 15, 1994, and contends the court en banc erred in changing the rate of compensation from $1.63 per week to $30.00 per week. Employer contends that in its October 26, 1994 order, the three judge panel must have reasoned it had an obligation to set a minimum rate of $30.00 under 85 O.S.Supp.1993 § 22(6). Employer argues that instead, sub-sections 1, 2 & 3 of section 21 must be read in conjunction with § 22(6).
Average annual and weekly earnings, or earning capacity, are determined under 85 O.S.Supp.1992 § 21.1 The actual amount of [1132]*1132compensation is determined under 85 O.S.Supp.1993 § 22.2 First, the amount of average and weekly earnings, or earning capacity, must be determined by application of the appropriate sub-section of § 21, then it is necessary to apply the appropriate sub-section of § 22 [sub-section 1, 2 or 3], to determine the weekly rate of compensation. That weekly rate must be tested by § 22(6),3 to determine whether the weekly rate exceeds the maximum or is less than the minimum allowed.
The trial court’s calculation of $1.63 per week was based on [annual] earnings of $85.00, the total amount employer paid Claimant, multiplied by ⅛. This was error. We agree with the trial court that 85 O.S.Supp.1992 §§ 21(1) and (2) are not applicable to this case. However, we disagree with the trial court that sub-section 3 of § 21 does not apply. Incidentally, § 21(4) applies in all cases.
Citing its opinion in Skelly Oil Co. v. Ellis, 176 Okl. 569, 56 P.2d 891, 894-896 (1936), the Supreme Court held in Safeway Stores v. Mauk, 275 P.2d 987, 990 (Okl.1954):
that the rate of compensation of an injured employee who has worked at intervals aggregating less than ‘substantially the whole’ of the year previous to his injury, should be based, not upon his ‘average annual earnings’, as specified in paragraphs 1 and 2, section 21, supra, but upon his ‘annual earning capacity’ as specified in paragraph 3 of said section. ... (Emphasis added).
[T]he question of which of the first three numbered paragraphs of section 21, supra, applies cannot always be entirely a question of fact. Usually it is a mixed question of law and fact. In other words, the determination of whether or not a given claimant has ‘worked in the employment in [1133]*1133which he was working at the time of the accident * * * during substantially the whole of the year immediately preceding his injury * * *’ is a question of fact. But, after this question has been determined, the question of which of the first two numbered paragraphs or subsections of section 21, supra, applies is solely a question of law. Likewise, where it is undisputed that the claimant has worked throughout that year, but his total working time does not amount to ‘substantially the whole of the year’, then it is merely a question of law, or legal interpretation, as to which of the three paragraphs should be applied....
In Winrock Farms v. Eldred, 446 P.2d 265 (Okl.1968), the Supreme Court cited Safeway Stores v. Mauk, supra, reaffirming its holding that 85 O.S. [Now, Supp.1992] § 21(8) must be used when employment is part-time or seasonal. The Court ruled § 21(3) is the appropriate sub-section of section 21 to arrive at “annual earning capacity”, to “be fair to both employer, his insurance carrier, and such an employee or claimant.” On remand, the court must determine annual and weeHy earning capacity in accordance with the requirements of § 21(3) and § 21(4).
Additionally, the Court En Banc’s modification of Claimant’s average weeHy wage to $30.00, apparently was based on its opinion that § 22(6) required a minimum award of $30.00 per week. That was error. At no time did either court determine the amount of Claimant’s “annual earning capacity”, pursuant to 85 O.S.Supp.1992 § 21(3), or determine how such earning capacity is used to determine her “weeHy earning capacity”. The order of the Court En Banc must be vacated.
The evidence in the instant ease supports a finding of part-time employment. See also Tulsa County v. Braswell, 766 P.2d 341 (Okl.1988). As a matter of law, 85 O.S.Supp.1992 § 21(3) must be used in the instant case to determine the “annual earning capacity”. The “weeHy earning capacity”, applicable to part-time employees, is determined by applying 85 O.S.Supp.1992 § 21(4) to the “annual earning capacity”. Next, it is necessary to determine if that weekly rate comports with § 22(6). It is important to note § 22(6) provides that compensation payments shall not at any time be less than $30.00 per week unless the Claimant’s weeHy wages are less than $30.00. If the weeHy wages or weeHy earning capacity is less than $30.00, then the minimum is the actual amount of those weeHy wages.
The order of the three judge panel, awarding compensation in the amount of $30.00 per week, is vacated. This case is remanded for further proceedings consistent with this opinion.
VACATED AND REMANDED.
CARL B. JONES, P.J., and JOPLIN, J., concur.