Elizabeth Jordan v. St. John's Mercy Health Systems

Rate of compensation ${ }^{1}$

The administrative law judge found, without explanation, the rate of temporary total and permanent total disability benefits to be $\ 628.90 per week. This finding is contrary to the evidence. Employee's wages were fixed by the hour. Accordingly, we look first to § 287.250.1 RSMo, which provides, in relevant part, 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: ...

(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 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. ...

The only evidence we have of employee's earnings in the thirteen weeks prior to the work injury comes from employer's Exhibit 4, which is a "Schedule of Earnings of Employee," and employee's testimony that she was a full-time employee who generally worked three 12-hour shifts per week. Employer's Exhibit 4 reveals what appears to be a somewhat sporadic attendance history in the thirteen weeks preceding February 6, 2002. Employee did not provide any evidence to explain what appear to be significant absences from work during the weeks November 11, 2001 through November 17, 2001, and November 18, 2001 through November 24, 2001. Employer suggests we take out those weeks and divide employee's earned wages for the remaining weeks ( $\ 8,790.61 ) by 11 rather than 13 , yielding an average weekly wage of $\ 799.15, with resulting compensation rates of $\ 532.77 for temporary total and permanent total disability and $\ 329.42 for permanent partial disability. Section 287.250.4 RSMo provides, as follows:

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.

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[^0]: ${ }^{1}$ Employee asserts, in her brief, that the parties stipulated to the maximum compensation rate and thus we should not review this issue. Employee misrepresents the record, which shows that employee's counsel indicated that she could agree to the maximum compensation rate, but that both parties thereafter unmistakably listed the issue "rate of compensation" as one for the administrative law judge to decide. See Transcript, pages 1 and 3-4.

**Improved Health**

Considering employee had the burden on this issue, and because employee failed to provide us any evidence of the reason for her absences from work and whether they were absences from "regular or scheduled work days," we find employer's suggestion abundantly reasonable and a fair means of determining the appropriate average weekly wage.

We find under § 287.250.1 RSMo, that employee's average weekly wage is 799.15, which yields compensation rates of 532.77 for temporary total and permanent total disability under §§ 287.170 and 287.200 RSMo, respectively, and $329.42 for permanent partial disability under § 287.190 RSMo.

We agree that employee met her burden of proving she is entitled to future medical treatment from the employer. We are concerned, however, with the form in which the administrative law judge awarded future medical treatment. Specifically, we find it inappropriate to award future medical treatment "as projected in the life care plans which is contained in Employee's Exhibit R." *Award*, page 7. We modify the award to give effect to the statutory language pertaining to future medical treatment. Section 287.140.1 RSMo provides, in relevant part, as follows:

> In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

The language of the award raises a question whether the administrative law judge inappropriately awarded the projected expenses for specific future treatments and procedures. Such an award is not contemplated by the foregoing section. Rather, where the employee's burden of proof is met, the statute makes clear that employee is entitled to that treatment which "may reasonably be required to cure and relieve from the effects of the injury." *Id.* We therefore modify the award of the administrative law judge to find employee entitled to, and employer obligated to provide, that future medical treatment which may reasonably be required to cure and relieve her condition resulting from the injury of February 6, 2002. We do not award any projected expenses connected to a specific future course of treatment, nor do we bind employee's award of future medical treatment to the specific treatments or procedures outlined in any life care plan.

We modify the award of the administrative law judge. We find the appropriate rates of compensation are 532.77 for temporary total and permanent total disability, and 329.42 for permanent partial disability. We find that employee is entitled to that future medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, which may reasonably be required to cure and relieve from the effects of the injury of February 6, 2002.

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.

The award and decision of Administrative Law Judge Cornelius T. Lane, issued September 29, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $11^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 6, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Self
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While lifting a patient with a co-worker into bed, the co worker dropped the patient, causing Claimant to feel a pop in her back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Back
14. Nature and extent of any permanent disability: Permanently and totally disabled
15. Compensation paid to-date for temporary disability: $\ 11,643.60
16. Value necessary medical aid paid to date by employer/insurer? $\ 39,802.18

1. Value necessary medical aid not furnished by employer/insurer? $\ 543,737.80
2. Employee's average weekly wages: $\ 25.00 per hour times 36 hours per week totaling $\ 900.00 per week
3. Weekly compensation rate: $\$ 628.90 / \ 329.42
4. Method wages computation: Per Claimant's testimony

1. Am