Daniel Hindle v. Goldman Promotions

injured . . .

Section 286.250.1(4) RSMo, requires the Commission to use the thirteen weeks immediately preceding the date of injury. Employee's earnings were based on his sales and the evidence shows that employee's wages totaled $\ 2,546.14 over a fourteen week period. In this case it is not possible to ascertain the wages earned using thirteen calendar weeks immediately preceding the date of injury; however, employee's weekly wage may be determined by using the last fourteen weeks preceding the week employee was injured. Therefore, to compute employee's average weekly earnings it is necessary to use the last fourteen weeks immediately preceding the week in which the employee was injured. Employee's wages were $\ 2,546.14 yielding an average weekly wage of $\ 181.87, and a corresponding compensation rate for temporary total and permanent partial disability of $\ 121.24.

This case is similar to Bates, where the Commission concluded under section 286.250.1(4) RSMo that it was fair and reasonable to calculate wages earned using a fourteen week period rather than a thirteen week period when the employee was paid every two weeks, and it was not possible to discern from the evidence adduced, the exact wages earned in any particular one-week time frame. Bates, 2006 MOWCLR Lexis 89 (MOWCLR 2006). The Court upheld this reasoning, finding no error of law on the part of the Commission. Vester-Bates v. Ponderosa Steak House, 209 S.W.3d 539 (Mo.App. E.D 2006).

As in Bates, this Commission is of the opinion that it would be fair and just to use the fourteen-week time frame since it encompasses the thirteen weeks immediately preceding the week in which the employee was injured. We are also of the opinion that doing so is in conformance with section 287.250.1(4) RSMo.

We further disagree with the administrative law judge's determination as to unpaid medical expenses. A sufficient factual basis to award past medical expenses exists when employee identifies all of the medical bills as being related to and the product of his work related injury and the medical bills are shown to relate to the professional services rendered by medical records in evidence. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo.banc 1989). Employee satisfied his burden of proof as he properly offered into evidence all medical bills pertaining to treatment for his 2002 injury and testified that such medical bills and treatment were related to and the product of his 2002 work-related injury.

As to the home care facilities of Delmar Gardens; because they are not medical institutions, it is not necessary for the records to be admitted into evidence. Based on the record as a whole, including employee's testimony and hospital records, there was sufficient evidence showing the need for employee's transfer to Delmar Gardens; thus warranting reimbursement for expenses associated with the home care facilities.

We agree with the unpaid medical expenses awarded by the administrative law judge totaling $\ 9,186.42. However, employee has demonstrated that medical bills, excluded by the administrative law judge, were medically causally related to an effort to cure and relieve the employee from the effects of the 2002 work-related injury as required by section 287.140 RSMo. We find that the medical record supports a causal relationship between the 2002 work injury and medical bills for the following home care facilities and medical providers which were excluded in the administrative law judge's award: Dr. Wiele (\$46.34); Tai M. Chiu (\$92.61), Tonya Brock (\$92.61), Joseph Scerba (\$87.18); Medical Resources, Inc. through October 2002 (\$574.23); 000006110 (\$301.70); EBILP (\$311.43); Dr. Burns through April 2003 (\$44.02); Delmar Gardens Home Care, Inc. (\1,360.00); and Delmar Gardens of Meramec Valley ( \ 2,016.60 ); and SSM Rehabilitation Institute through November 2002 (\1,212.31). The total amount employee is entitled to for medical expenses is \ 15,325.45.

However, we find that not all medical bills were related to employee's 2002 work-related injury including medical bills for treatment received in 2004 from Dr. Burns (\$524.40); Medical Resources, Inc. (\$29.72); and SSM Rehabilitation Institute (\406.08). The total of the unsupported medical expenses is \ 960.20.

Based on the above modification, the Commission ascertains and determines employee's average weekly earnings to be $\ 181.87 ( $\$ 2,546.14 / 14$ weeks), resulting in a compensation rate for temporary total and permanent

partial disability benefits of $121.24. Consequently, the amount of compensation payable is modified to the following amounts: 1,476.20 temporary total disability (121.24 x 12 and 1/7 weeks) and 11,886.37 permanent partial disability (121.24 x 98.04 weeks).

We award employee past medical bills but for $960.20, the sum of medical bills not related to his work-related injury. Employer is liable to employee for past medical expenses in the amount of $15,325.45.

The award and decision of Administrative Law Judge Suzette Carlisle issued July 17, 2006, as modified, is attached and incorporated by this 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 27th day of April 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Employee: Daniel Hindle

Dependents: N/A

Employer: Goldman Promotions

Additional Party: Second Injury Fund

Insurer: Lumbermen’s Mutual Casualty Co.

Hearing Date: April 21, 2006

Injury No.: 02-084710

Before the

Division of Workers’

Compensation

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: SC:tr

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: August 6, 2002.

1. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri.