Gary Abdullah v. Waste Management of St. Louis

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modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modification herein.

Employee testified that employer paid him by the hour. Employee submitted a wage statement which provides the weekly total number of hours employee worked in the weeks preceding the work injury. The wage statement suggests employee generally worked between thirty and forty-four hours per week, but also suggests that he did not work at all during the four weeks from June 2 to June 29, 2002, and that his total hours dropped significantly during the weeks ending May 25, June 1, July 6, and July 13, 2002. The wage statement does not make clear whether the drop in employee's hours was owing to day-long absences from regularly scheduled work, shifts that lasted less than eight hours, or some other circumstance, and employee did not offer any testimony to explain the fluctuation in his hours. Employee did testify that he normally worked between 50 and 55 hours per week, but we find this testimony lacking credibility as to the thirteen weeks preceding the week in which employee was injured, because it conflicts with the wage statement.

We find the wage statement to be credible evidence of employee's earnings in the time period preceding the work injury. Consistent with the wage statement, we find employee's wages were fixed by the hour at $\ 13.42 in the thirteen weeks preceding the week of the work injury, and that he earned a total of $\ 3,440.96 during that time period. We find that employee did not work any hours for employer or earn any wages during the four weeks from June 2 to June 29, 2002.

Employee married Linda Susan Abdullah in St. Charles County, Missouri, on November 16, 2001. Employee testified that Mrs. Abdullah's maiden name was Bowen; we note that the documentary evidence suggests it was Schroeder. See Transcript, page 1566. Employee and Mrs. Abdullah were still married as of July 15, 2002, and they continue to be married. Mrs. Abdullah resided with employee and was financially dependent on employee for support as of July 15, 2002. Employee's claim for permanent total disability benefits was pending between January 9, 2007, and June 26, 2008.

Section 287.250.1 RSMo provides the framework for calculating an employee's average weekly wage, and provides, 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. ...

(7) 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 for such labor.

The administrative law judge found, without explanation, that during the thirteen weeks preceding the week in which employee was injured, employee was absent for thirteen regular or scheduled work days in addition to the four weeks during which employee did not work any hours or earn any wages at all. It appears the administrative law judge assumed a forty-hour work week divided into five eight-hour shifts, then subtracted from forty the total hours employee worked during weeks where his hours fluctuated, and then divided the results by eight. But this approach ignores both employee's testimony on the subject and the wage statement itself, neither of which support the assumption that employee worked exactly forty hours per week. The administrative law judge's approach also assumes, absent any evidence, that the fluctuation in employee's hours was owing to absences from regular or scheduled work days, rather than some other circumstance. In any event, the administrative law judge found that those assumed thirteen days of absences should be converted into two weeks under the language of $\S 287.250 .1(4)$ RSMo that provides "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 Second Injury Fund argues that the administrative law judge erred in converting the thirteen assumed days of absence into two week-long absences, because there was no evidence to show that the fluctuations in employee's hours were due to absences for an entire work day, let alone whether those days were regular or scheduled. The Second Injury Fund argues that employee's total wages for the time period should be divided by 9 instead of 7 .

We agree. "A claimant has the burden of proving all of the material elements of the claim, and that includes sufficient proof for the Commission to determine the proper compensation rate." Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 241-242 (Mo. App. 2003)(citation omitted). The wage statement submitted by employee does nothing to explain the fluctuation in employee's hours. The statement simply provides the total number of hours worked by week; it does not reveal employee's work schedule on any particular day. Consequently, we don't know whether the lower weekly totals are a result of employee's having been absent from one or more entire days of work, and if so, whether those were regular or scheduled work days. It's equally possible that employee's shifts fluctuated in length, or that employer simply didn't schedule employee for those hours. Employee did not provide any testimony to resolve these ambiguities.

We conclude employee's average weekly wage is $\ 382.33 ( $\ 3,440.96 divided by 9 ), which, pursuant to $\S 287.200 .1(4) RSMo, results in a compensation rate of \ 254.89 for permanent total disability benefits.

Dependent's right to benefits under Schoemehl:

At oral arguments in this matter on January 23, 2013, the parties announced that they had reached a stipulation regarding the Schoemehl issue involved in this case.

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Injury No.: 02-076147

Thereafter, the parties submitted to the Commission proposed language regarding the *Schoemehl* issue which they agreed should be included in a modified award. According to that proposed language, the parties stipulate as follows:

Employee Gary Abdullah's wife, Linda Bowen Abdullah, is entitled to receive employee's permanent total disability benefits in the event she remains married to employee and employee predeceases her while they remain married. Her entitlement to permanent total disability benefits shall cease upon her death or remarriage.

To the extent the administrative law judge's comments, analysis, and conclusions on the *Schoemehl* issue departed from the foregoing stipulation, we reverse those conclusions. Because the issue has been resolved by stipulation of the parties, there is no need for us to render our own conclusions of law as to the *Schoemehl* issue involved in this case.

**Award**

We modify the award of the administrative law judge as to the issues of the appropriate rate of compensation for permanent total disability benefits, and employee's wife's entitlement to benefits under *Schoemehl v. Treasurer of State*, 217 S.W.3d 900 (Mo. 2007).

Employee is entitled to permanent total disability benefits from the Second Injury Fund at the rate of $254.89 per week.

In all other respects, we affirm the award.

The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued March 7, 2011, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 1st day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, 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: July 15, 2002
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
6. Was above empl