Employer filed a late answer. Under 8 CSR 50-2.010(8) (B), employer is deemed to have admitted, for any further proceedings, the statements of fact in employee's claim for compensation. Lumbard-Bock v. Winchell's Donut Shop, 939 S.W.2d 456, 457-58 (Mo. App. 1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).
The administrative law judge found employee is entitled to a compensation rate of $\ 376.55 per week for permanent partial disability benefits. We surmise that the administrative law judge derived this figure by calculating, pursuant to § 287.190.5(5) RSMo, 55 % of the state average weekly wage as of the date of the accident on November 15, 2006, in order to give effect to employee's allegation, in her claim for compensation, that her average weekly wage was "max rate."
Employer argues that it cannot be deemed to have admitted employee's entitlement to the maximum rate of compensation, because employee's allegation that her average weekly wage was "max rate" amounts to a legal conclusion, rather than a statement of fact, citing Anderson v. Veracity Research Co., 299 S.W.3d 720, 728 (Mo. App. 2009). The Anderson court held that legal conclusions, such as the statement that an employee's injuries "arose out of and in the course of employment," are not admitted by an employer's failure to file a timely answer. Id. In response, employee cites Aldridge v. S. Mo. Gas Co., 131 S.W.3d 876, 882 (Mo. App. 2004), which held that "[w]age rate is a question of fact, to be determined by the Commission according to the computations provided by statute."
After careful review, we are convinced that employer is correct. We find Aldridge distinguishable from the present circumstances. The employee in Aldridge alleged in his claim for compensation that his average weekly wage was $\ 550.00; the court found that this was a statement of fact. 131 S.W.3d at 882. But here, employee's allegation that her average weekly wage was "max rate" does not suggest or even imply any specific dollar amount, nor does it state any cognizable fact about employee's average weekly wage while working for employer. To our knowledge, there is no legal maximum rate in Missouri as to the wage employers may pay to employees. And employee did not put on evidence that employer had a maximum wage rate.
Employee alleges that the words "max rate" were intended as an assertion that employee's average weekly wage at the time of the accident was sufficient to yield, after application of the terms and provisions of $\S 287.170 .1(4) RSMo, \S 287.180 .1(4) RSMo, \S 287.190 .5(5) RSMo, and \S 287.200 .1(4)$ RSMo, compensation at the maximum rate allowed under each of those sections. But we believe the very process of going through such an explanation, and the fact such an explanation is necessary, illustrates why "max rate" is not a statement of fact. Instead, if it is anything, we believe it is a legal conclusion. See Gordon v. Puritan Chemical Co., 406 S.W.2d 822, 826 (Mo. App. 1966) (noting that conclusions of law, in contrast to findings of fact, generally will require interpretation or application of Chapter 287). As the Anderson court stated, "[t]here is a difference between the physical location of an accident and the legal conclusion that an accident met the statutory criteria for compensability." 299 S.W.3d at 728. Here, there is a difference between the dollar amount of an employee's average weekly wage and the
legal conclusion that the amount met the statutory criteria such that the employee is entitled to the maximum compensation rate provided by law.
For these reasons, we conclude that employer did not admit, by filing a late answer, that employee is entitled to a compensation rate of $\ 376.55 per week for permanent partial disability benefits. Having so concluded, we would normally turn now to the evidence on record to determine employee's average weekly wage. But there is no such evidence.
Employee does not remember her hourly wage in the weeks preceding the accident, did not present any documentary evidence such as W2s, time sheets, or check stubs, and ultimately agreed, on cross-examination, that she had no evidence at all as to what she earned while she was working for employer. As a result, we must conclude that employee has failed to meet her burden of proving her average weekly wage. The cases suggest the minimum $\ 40 compensation rate under $\S 287.190 .5(2)$ RSMo is appropriate where an employee sustains a compensable injury but fails to establish her average weekly wage. See Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 887 (Mo. App. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).
We are sensitive to the fact that this employee suffered a horrible trauma at work, and we wish to make clear that her genuine inability to recall details from that time period, such as her average weekly wage in the thirteen weeks before the accident, does not strike us as unexpected or blameworthy in the least. But the task of proving an average weekly wage was by no means rendered impossible simply because employee was unable to remember what she earned while working for employer. To the contrary, it would seem there were many other possible sources of evidence to establish employee's wage. In fact, we note the objection by employee's counsel to Employer's Exhibit 2. That exhibit was a Wage Statement and constituted the only actual evidence of employee's average weekly wage offered at the hearing. As a result of counsel's objection, the exhibit did not come into the record, and we cannot consider it now.
We are bound to apply the law. We must conclude that the applicable rate of compensation is $\ 40 for permanent partial disability benefits.