Nancy Brunner v. Columbia Public School District

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. We have reviewed the evidence, read the briefs of the parties, heard oral argument and considered the whole record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated October 14, 2008.

The administrative law judge concluded that employee's average weekly wage was $\ 766.56, resulting in a compensation rate of $\ 511.04 for temporary total disability benefits and $\ 376.55 for permanent partial disability benefits. We believe the administrative law judge erred in the computation of employee's average weekly wage. The Commission modifies that determination, by concluding employee's average weekly wage is $\ 1,065.80, resulting in a compensation rate of $\ 710.53 for temporary total disability benefits. Additionally, while the Commission agrees with the finding of the percentage of permanent partial disability awarded (50\% of the index finger), we would like to further clarify that issue.

The Commission agrees with the determination that employee is permanently partially disabled due to the January 19, 2007, work-related injury. However, we must address the language in the administrative law judge's award. The administrative law judge stated in his award:

There is little doubt that the finger injury has affected Claimant's strength in the hand itself. However, that does not make this case unusual; an injury to the finger almost always affects the strength or use of the hand. Thus, Claimant's position would suggest that a separate disability amount be paid for both the finger and for the hand in virtually every finger injury case. . . . Would it be appropriate to award a separate disability amount for each digit, as well as for the hand or wrist? Strictly construing the statute, the answer should be "no".

The administrative law judge seems to suggest that an award of permanent partial disability cannot be made to the hand or wrist for the injury to her index finger. That is clearly not the case. The percentage of partial disability does not have to be limited or restricted to a certain level; instead, it is based upon the evidence presented in each individual case.

"If a claimant has multiple injuries to a major extremity at various levels, it may be appropriate, depending on the facts and circumstances, to rate the percentage of disability to the entire major extremity." Shipp v. Treasurer of Mo., 99 S.W.3d 44, 53 (Mo.App. E.D. 2003), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

"The extent of partial disability is rated by a percent of disability to a body part or to the body as a whole. The determination of the specific percentage of disability is a finding of fact within the special province of the commission, which is not strictly limited to the percentages of disability provided by the medical expert." Id, citing Motton v. Outsource Int'l, 77 S.W.3d 669, 674 (Mo.App. E.D. 2002).

In this case, we believe the evidence demonstrates that employee sustained a permanent partial disability of 50 % of the index finger; however, had the evidence compelled a different conclusion, the Commission would have rated the percentage of disability at the appropriate level.

Section 287.250 RSMo (2005) is the applicable statutory provision; it sets forth the methods for computing an employee's average weekly wage earnings for the purpose of establishing compensation rates. Statutory formulas for calculating benefits are set forth in subsections 1 to 3 of section 287.250 RSMo.

Section 287.250 RSMo states as follows:

- Except as otherwise provided for in this chapter, the method of computing an injured employee's average weekly earnings which will serve as the basis for compensation provided for in this chapter shall be as follows:

- If the wages are fixed by the week, the amount so fixed shall be the average weekly wage;

- If the wages are fixed by the month, the average weekly wage shall be the monthly wage so fixed multiplied by twelve and divided by fifty-two;

- If the wages are fixed by the year, the average weekly wage shall be the yearly wage fixed divided by fifty-two;

- 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 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 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;

- If the employee has been employed less than two calendar weeks immediately preceding the injury, the employee's weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment at the time of the injury, except if the employer has agreed to a certain hourly wage, then the hourly wage agreed upon multiplied by the number of weekly hours scheduled shall be the employee's average weekly wage;

- If the hourly wage has not been fixed or cannot be ascertained, or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer;

- In computing the average weekly wage pursuant to subdivisions (1) to (6) of this subsection, an employee shall be considered to have been actually employed for only those weeks in which labor is actually performed by the employee for the employer and wages are actually paid by the employer as compensation

Subsection 4 of section 287.250 RSMo, prescribes how benefits are determined if an employee's average weekly wage cannot be determined by applying the statutory formulas.

Section 287.250 RSMo, states:

1. If pursuant to this section the average weekly wage cannot fairly and

justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee's average weekly wage.

In determining the applicable weekly wage rate under section 287.250 RSMo, "it is necessary to commence with the first subsection and then to descend in numerical order under the other subsections until the wage rate provision is found that applies to the particular facts of the case." Stegeman v. St. Francis Xavier Parish, 611 S.W.2d 204 (Mo. banc 1981).

As stated above, if the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of section 287.250 RSMo, then the Commission is provided a catch-all provision for wage determination pursuant to subsection 4 of section 287.250 RSMo.

We acknowledge that section 287.800 .1 requires us to construe the provisions of this chapter strictly; however section 287.250 .4 provides that if the average weekly wage cannot be fairly determined under subsections 1 to 3, then the Commission may determine an average weekly wage that is fair and just based upon the facts presented. In this case, we do not believe employee's wages may be calculated fairly and justly under subsections 1 to 3 of section 287.250. Accordingly we turn to subsection 4 of section 287.250 RSMo.

Employee presented evidence demonstrating that she worked for employer as a teacher for 187 days in the 2006-2007 school year. Per contract with employer, employee was to work for employer for the 2006-2007 school year, with a salary of $\ 39,861.00, to be paid in equal installments for 12 months.

The administrative law judge noted that employee's wages were "fixed by the year" and were payable monthly; therefore found the applicable subsection of 287.250 .1 to be either (2) or (3) rendering an average weekly wage of $\$ 766.56[(3,321.75 \times 12$ month) /52weeks) or ( $\$ 39,861.00 / 52$ weeks)].

It does not seem reasonable to calculate employee's wages for 187 days of work over a period of 12 months. Per contract, employee's wages were to be paid over a 12 month period; however, employee worked only 187 days in that school year. The manner in which the parties chose to administer payment does not change the fact that employee performed approximately 37 weeks of work for employer.

Given the exceptional facts presented, the Commission is of the opinion that it can only fairly and justly determine employee's average weekly earnings by using employee's salary and number of days employee actually worked. The most reasonable calculation would be to take employee's annual salary of $\ 39,861.00, and divide it by 187, the number of days of work in the school year, and then multiply it by 5 , the number of days in employee's work week, rendering an average weekly wage of $\ 1,065.80. This would result in a compensation rate of $\ 710.53 for temporary total disability benefits and $\ 376.55 for permanent partial disability benefits. The Commission is also of the opinion that in so doing it is in conformance with the provisions of Chapter 287.

IV. Conclusion

The Commission concludes that the competent and substantial evidence supports a finding that employer is liable for 50% permanent partial disability of the index finger (22.5 weeks), as well as an additional 3 weeks of permanent partial disability benefits for disfigurement or permanent "drooping" of the finger, resulting in a total of 25.5 weeks of permanent partial disability benefits.

Based on the above modification, the Commission ascertains and determines employee's average weekly earnings to be $1065.80, resulting in a compensation rate for temporary total disability benefits of $710.53. Consequently, the amount of compensation payable is modified to the following amount: underpayment of temporary total disability in the amount of $68.34 [($710.53 x 3/7 weeks) - $236.17].

We award future medical care and treatment to cure and relieve employee from the residuals and effects of her work-related injury, pursuant to the provisions of section 287.140 RSMo.

All remaining findings of fact and conclusions of law are affirmed.

The award and decision of Administrative Law Judge Robert J. Dierkes issued October 14, 2008, as modified, is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, award and decision herein.

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 20th day of May 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Employer: Columbia Public School District

Additional Party: Second Injury Fund

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