Edward Lewis v. Universal Printing Company

As to the remaining issues of compensation rate, temporary total disability and Second Injury Fund liability, the Commission disagrees with the conclusions reached by the administrative law judge, reversing and/or modifying the portion of the award pertaining to these three separate issues as set forth below.

In the award issued by the administrative law judge, he found that the parties had agreed to a compensation rate of $\$ 603.46 / \ 354.05. The Commission disagrees with this determination as the parties clearly indicated to the administrative law judge that the average weekly wage and corresponding compensation rate were in dispute.

The employee's last day of work was November 8, 2002. Section 287.250.1(4) RSMo is the applicable statutory provision. It states as follows:

If the wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be computed by dividing by thirteen the wages earned while actually employed by the employer in each of the last thirteen calendar weeks immediately preceding the week in which the employee was injured... For purposes of computing the average weekly wage pursuant to this subdivision, absence of five regular or scheduled work days, even if not in the same calendar week, shall be considered as absence for a calendar week. If the employee commenced employment on a day other than the beginning of a calendar week, such calendar week and the wages earned during such week shall be excluded in computing the average weekly wage pursuant to this subdivision;

The following information is gleaned from the employee's check stubs concerning the thirteen weeks immediately preceding November 2, 2005:

1.Period Ending November 10, 2002:35 regular hours worked = \$787.57; (Tr. 843);

2.Period Ending November 3, 2002:35 regular hours worked plus 7 hours overtime = \$926.71; (Tr. 842);

3.Period Ending October 27, 2002:35 regular hours worked plus 5 hours overtime = \$961.78; (Tr. 841);

4.Period Ending October 20, 2002:this period should not be used as Employee apparently received disability benefits during the week, instead of working; (Tr. 840);

5.Period Ending October 13, 2002:24 regular hours worked plus 2 hours overtime = \$611.01; (Tr. 839);

6.Period Ending October 6, 2002:35 regular hours worked plus 5 hours overtime = \$961.78; (Tr. 838);

7.Period Ending September 29, 2002:28 regular hours worked plus 1 hour overtime = \$675.78; (Tr. 837);

8.Period Ending September 22, 2002:35 regular hours worked plus 3 hours overtime = \$903.11; (Tr. 836);

9.Period Ending September 15, 2002:35 regular hours worked plus 4 hours overtime = \$937.52; (Tr. 835);

10.Period Ending September 8, 2002:28 regular hours worked plus 3 hours overtime plus 7 hours holiday = $\ 893.89 ;( Tr. 834);

11.Period Ending September 1, 2002:35 regular hours worked plus 5 hours overtime = \$961.78; (Tr. 833);

12.Period Ending August 25, 2002:35 regular hours worked plus 5 hours overtime = \$962.12; (Tr. 832);

13.Period Ending August 18, 2002:35 regular hours worked plus 4.5 hours overtime = \$963.10; (Tr. 831).

Since section 287.250.1(4) requires that "absence of five regular or scheduled work days, even if not in the same calendar week, shall be considered as absence for a calendar week," the above thirteen weeks must be evaluated to see if there are five or more missed days which would require dividing the employee's wages by a number lower than thirteen.

The week of October 20, 2005, involved payment of disability benefits, not wages, which removes five days from the computation. The employee normally works seven regular hours in a workday. Accordingly, the week ending October 13, 2002, the employee missed one day; one day was missed for the week ending September 29, 2002; and one day was missed for the week ending September 8, 2002. The total number of missed days is eight. Pursuant to section 287.250.1(4), the employee's wages for the thirteen-week period must now be divided by twelve, in lieu of thirteen.

The total wages for the thirteen-week time frame is $\ 10,546.15. Dividing this by twelve gives an average weekly

wage of $\ 878.85 and a resulting compensation rate of $\ 585.90 for permanent total/temporary total disability benefits and $\ 340.12 for permanent partial disability benefits. The Commission finds the applicable compensation rate to be $\$ 585.90 / \ 340.12.

The administrative law judge awarded 8 and $2 / 7$ weeks of temporary total disability benefits. However, temporary total disability was not stipulated as a justiciable issue at trial. The Commission reverses the awarding of any temporary total disability benefits as the award of any temporary total disability went beyond the scope of any of the stipulated justiciable issues.

Workers' compensation hearings are conducted in accord with 8 CSR 50-2.010 (14) that states in relevant part:

Hearings before the division shall be simple, informal proceedings. The rules of evidence for civil cases in the state of Missouri shall apply. Prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues.

The question of the scope of an award was addressed by our appellate courts in Boyer v. National Express Company, 49 S.W.3d 700 (Mo. App. E.D. 2001). The Boyer court stated as follows:

"...the administrative law judge should confine the evidence during the hearing to the stated contested issues. ...Stipulations are controlling and conclusive, and the courts are bound to enforce them. ...A stipulation should be interpreted in view of the result, which the parties were attempting to accomplish. ...In Lawson, our colleagues in the Southern District concluded that the Commission acted in excess of its powers in making its award on grounds not in issue. Lawson v. Emerson Electric Company, 809 S.W.2d at 126."

Boyer, 49 S.W.3d at 705.

The parties were confined to adducing evidence to the contested issues and no evidence was actually presented on the question of temporary total disability. The award of temporary total disability for 8 and $2 / 7$ weeks was beyond the scope of the stipulated contested issues, was erroneous, and is reversed by the Commission. There is no award of temporary total disability benefits in this matter.

The administrative law judge awarded 55.56 weeks of permanent partial disability from the Second Injury Fund. The employee contends that the administrative law judge erred in failing to find the employee permanently and totally disabled as a result of the combination of disabilities from his last injury and his pre-existing medical conditions/disabilities. We agree with the contention of the employee, that the Second Injury Fund is liable for permanent total disability. We find the employee's work related injury combines with the employee's pre-existing injuries or conditions to render the employee permanently totally disabled.

The Commission agrees that the last injury by itself caused the following permanent partial disability: 20\% permanent partial disability of the right wrist; and 15\% permanent partial disability of the left wrist. The last injury, considered in and of itself, did not cause the employee to be permanently totally disabled.

The Commission is firmly of the opinion that when the last injury alone is combined with the employee's preexisting conditions, the employee is rendered permanently and totally disabled.

The administrative law judge determined that the employee was presently totally disabled. However, the administrative law judge further found that employee's permanent total disability was attributable to a combination of the last injury alone, only when coupled with or combined with a non-occupational right shoulder injury occurring November 8, 2002, which the administrative law judge considered subsequent to the injury at bar, and also the

pre-existing injuries/conditions to employee's back, wrists and ankles.

The administrative law judge found that as of the date of the right shoulder injury which occurred November 8, 2002, employee suffered from a back injury, a previous left ankle injury as well as the upper extremity injuries sustained in the last injury. The administrative law judge found that the right shoulder injury, when coupled with the then-existing upper extremity injuries, the pre-existing back injury and pre-existing ankle injury, resulted in the employee being permanently totally disabled.

The administrative law judge found that the employee did not become permanently and totally disabled as a result of the combined effect of the bilateral upper extremity injuries, the back injury, and the left ankle injury. Accordingly the administrative law ju