Pamela Bates v. Ponderosa

As stated above, there is no additional evidence in this entire record reflecting actual wages earned while employee was working for employer. Employee’s evidence as to her earnings was based on speculation, surmise, and guess work. As to earnings from tips, the legislature has limited consideration of gratuities (tips) to the extent reported for income tax purposes.

In order to calculate employee’s average weekly earnings and her corresponding compensation rate, the Commission is of the opinion that section 287.250.1(4) RSMo, is the appropriate subsection to use. (The Commission notes and emphasizes again that the Commission is only modifying the temporary total disability rate, not the permanent partial disability rate, which the Commission believes was appropriately computed by the administrative law judge utilizing section 287.250.6 RSMo). As an aside, the Commission is of the further opinion that the only other statutory provision that could possibly be applicable, to determine the correct rate for temporary total disability, would be section 287.250.4 RSMo, and the Commission would come to the same conclusion if either of these two provisions were used, as further discussed below.

Section 287.250.1(4) RSMo, provides in part 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 wage 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 ...”

Section 287.250.1(4) RSMo further provides in pertinent part: “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.”

There was no evidence adduced showing employee missed any regular or scheduled work days for the fourteenweek pay period itemized on Employer and Insurer’s Exhibit No. 29. There is no statutory basis to exclude any wages earned in any of the weeks depicted.

In the instant case, employee was paid every two weeks, and it is not possible to discern from the evidence adduced, the exact wages earned in any particular one-week time frame. The Commission can only ascertain the gross wages earned every two weeks. From the evidence presented, it is not possible to apportion the wages between the two-week incremental payments.

Section 287.800 RSMo, provides as follows: “All of the provisions of this chapter shall be liberally construed with a view to the public welfare, and a substantial compliance therewith shall be sufficient to give effect to rules, regulations, requirements, awards, orders or decisions of the division and the commission, ...”

Based upon the exceptional facts presented, the Commission is of the opinion that it can only fairly and justly determine employee’s actual average weekly earnings by utilizing the fourteen weeks immediately preceding the week in which the employee was injured. In so doing the gross wages are 1,673.08 equating to an average weekly wage of 119.51, and a corresponding compensation rate for temporary total disability of 79.67 (119.51 x 2/3).

Section 286.250.1(4) RSMo, requires the Commission to use the thirteen weeks immediately preceding the date of injury. In the instant case it is not possible to ascertain the wages earned representing the thirteen calendar weeks immediately preceding the week in which the employee was injured. The twelve-week period can be ascertained; and the fourteen-week period can also be ascertained.

The Commission is of the opinion that it would be fair and just to use the fourteen-week time frame in lieu of the twelve-week time frame since the fourteen-week time frame obviously encompasses the thirteen weeks immediately preceding the week of the accident. The Commission is also of the opinion that in so doing it is in

conformance with sections 287.250.1(4), 287.250.4 RSMo, and 287.800 RSMo.

Based on the above modification, the Commission ascertains and determines employee's average weekly earnings to be $\ 119.51, resulting in a compensation rate for temporary total disability benefits of $\ 79.67. Consequently, the amount of compensation payable is modified to the following amounts: $\ 91.05 temporary total disability representing 1 and $1 / 7 weeks ( \$ 79.67 \times 1 and 1 / 7 weeks); and underpayment of temporary total disability in the amount of \$ 611.99[(\$ 79.67 \times 15 and 3 / 7 weeks) - \$ 617.20]$.

The award and decision of Administrative Law Judge Leslie E. H. Brown dated September 1, 2005, as modified is attached and incorporated by reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $26^{\text {th }}$ day of April 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed. As the Commission majority has affirmed all findings and conclusions of the administrative law judge, but for the appropriate rate for temporary total disability, I dissent on that issue alone.

The Commission majority concludes that the rate for temporary total disability set by the administrative law judge of $\ 82.02 per week should be modified to $\ 79.67 per week. I disagree. Section 287.250.1 RSMo (2000) reads as follows:

(4) 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 or if actually employed by the employer for less than the thirteen weeks, by the

number of calendar weeks, or any portion of a week, during which the employee was actually employed by the employer. For the 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.

In computing claimant's average weekly wage for the purposes of determining her rate for temporary total disability, the administrative law judge did not consider claimant's earnings during the period of December 21, 1998. As the evidence showed that claimant worked less than her normal weekly hours during that period, the administrative law judge, in accordance with section 287.250.1(4) RSMo, considered claimant absent during that time. The majority, however, was unmoved by the substantial disparity in claimant's earnings during that period compared to the other periods. As such, the majority considered claimant's earnings during that time when making its determination regarding claimant's average weekly wage.

I find that the administrative law judge properly applied section 287.250.1(4) RSMo by disregarding claimant's earnings for the December 21, 1998 period. I would affirm the award of the administrative law judge in its entirety.

As the Commission majority has decided otherwise, I must respectfully dissent.

John J. Hickey, Member

Employee: Pamela Bates (formerly Vester) Injury No. 99-013898


Hearing Date: 10/5/04, 12/2/04 (finally submitted 1/27/05)Checked by: LEHB/bfb for df

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 22 or 23, 1999
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease?

1. Did employer receive proper notice? Yes
2. Did accident or occupational disease arise out of and in the course of the employment? Yes
3. Was claim for compensation filed within time required by Law? Yes
4. Was employer insured by