Justin Holmes v. City of Farmington

Rate of compensation

The administrative law judge determined the appropriate rate of compensation for temporary total disability benefits is $\ 464.76. We agree with this result, but for different reasons than those cited by the administrative law judge. Specifically, we must disclaim the administrative law judge's reliance on § 287.250.1(5) RSMo, because employee was not employed for less than two weeks by employer as of the date of injury on June 27, 2010. Rather, as revealed by the payroll records submitted into evidence by the parties, employee had worked for employer at least since February 2010. Accordingly, we rely instead on § 287.250.4 RSMo, which 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.

The courts have declared that the foregoing section provides the fact-finder with broad discretion to determine a fair and just average weekly wage given the specific factual circumstances presented in each case. See, e.g., Nielsen v. Max One Corp., 98 S.W.3d 585, 590 (Mo. App. 2003). Employer argues that we should apply the formula under § 287.250.1(4) RSMo for employees paid by the hour, which would result in a $\ 40 weekly compensation rate for temporary total disability benefits, or in other words, the statutory minimum rate. But in our opinion, this case presents exceptional facts, such that it would be unfair and unjust to use § 287.250.1(4) to determine employee's average weekly wage.

The record reveals that employee didn't merely respond to calls and work 2 to 3 hours at a time for employer, he also worked 24 -hour shifts filling in for full-time firefighters who were absent. It follows that if, in the weeks leading up to the June 2010 injury, employee had had the "good fortune" of filling in for one or more full-time firefighters who were absent for one or more days, his average weekly wage under § 287.250.1(4) might have been significantly higher. As it turns out, however, employee's specific work history in the 13 weeks preceding the date of injury did not include any 24 -hour shifts but rather only a handful of sporadic shifts of short duration. As a result of these chance circumstances, the formula under $\S 287.250 .1(4)$ provides a rather paltry average weekly wage that, in our opinion, does not fairly and justly reflect employee's earnings. We deem these to constitute exceptional facts.

Also, given that the statute invests us with broad discretion to consider what is fair and just in this specific case, we find it appropriate to acknowledge that employee sustained his injuries in the course of performing duties indistinguishable from those performed by full-time firefighters, and that his injuries resulted from risks or hazards indistinguishable from those faced by full-time firefighters. It was of no consequence that employee was merely a part-time firefighter when the fire truck overturned that night, and the injuries he suffered were no less catastrophic owing to his part-time status. As a result of employee's commendable choice to confront the same risks and hazards as his peers

who worked for employer on a full-time basis, he suffered severe injuries that resulted in financial hardship. These are, in our opinion, exceptional facts.

Ultimately, because a strict application of $\S 287.250 .1(4)$ does not, in our opinion, provide a fair assessment of employee's average weekly wage, and because employee assumed the very same risks faced by his peers who worked for employer on a full-time basis, and suffered injuries resulting from those same risks, we deem it just to utilize the average weekly wage earned by full-time firefighters. We defer to, and hereby adopt as our own, the administrative law judge's finding that the average weekly wage earned by full-time firefighters working for employer during the relevant time period was $\ 697.14. Applying § 287.170 RSMo, the appropriate weekly compensation rate for temporary total disability benefits is $\ 464.76.

The administrative law judge determined that employee was temporarily and totally disabled during the entire time period from June 28, 2010, through June 27, 2012. After careful consideration, we must disagree. The administrative law judge relied on the opinions from employee's medical expert, Dr. Raymond Cohen, but the record reveals that Dr. Cohen was unaware of the material fact that employee returned to work for employer as a part-time firefighter in November 2010 after his release by the treating physician, Dr. Donald deGrange.

Specifically, in his initial report dated November 10, 2012, Dr. Cohen made no mention of employee's return to part-time work for employer between November 2010 and November 2011, and instead revealed his erroneous belief that, "[u]nfortunately this injury was significant enough that [employee] was no longer able to return to his prior occupation as a firefighter." Transcript, page 115. Then, in a letter dated February 21, 2013, employee's attorney incorrectly advised Dr. Cohen that "[f]rom the date of injury through June 27, 2012, [employee] did not work." Transcript, page 125. In response to this letter, Dr. Cohen issued the supplemental report containing his opinion that employee was temporarily and totally disabled through June 27, 2012. Because Dr. Cohen obviously relied on incorrect facts, we cannot credit his opinion with regard to temporary total disability.

In its brief, employer correctly notes that employee was not under any work restrictions from a treating physician during the time periods at issue. This leaves us with employee's own testimony as the only remaining evidence possibly supportive of an award of temporary total disability benefits. However, turning to employee's testimony, we find no indication that he was accommodated in any way in performing his work duties for employer following his return to work in November 2010. Instead, employee agreed on cross-examination that he believed he did all of the same jobs and duties for employer after his return to work that he did before his injury. Transcript, page 87. Those duties included wearing 50 to 60 pounds of fire gear, handling and carrying hoses weighing up to 110 pounds, using tools such as pike poles and axes to tear down walls and other structures, and assisting with the loading of victims onto stretchers and into ambulances. Employer's fire chief, Todd Mecey, credibly testified (and we so find) that employee never approached him after his return to work to report he was unable to or had any difficulty performing these

duties. We find that employee performed his normal duties after his return to work, albeit while suffering from pain, and on a part-time basis.

We note also that employee agreed, on cross-examination, that he felt he could have performed a number of the jobs he applied for during the time periods at issue. Transcript, page 91. On redirect examination, employee somewhat inconsistently agreed to his attorney's leading question suggesting he would not have been able to perform those jobs. Transcript, page 101. We deem employee's earlier concession on cross-examination more persuasive than his later response to the leading question from his attorney, and after careful consideration, we do not find employee's testimony to persuasively support a conclusion that he was temporarily and totally disabled during the disputed periods.

Because this record ultimately lacks any persuasive evidence to support employee's claim for additional temporary total disability benefits, we conclude that employee was not rendered temporarily and totally disabled by the effects of the work injury during the entire period from June 28, 2010, through June 27, 2012. Rather, we find that employee was temporarily and totally disabled only during the three stipulated periods from June 28, 2010, to July 28, 2010; from August 12, 2010, through November 18, 2010; and from March 1, 2012, to June 27, 2012.

Because we have affirmed the administrative law judge's conclusion that the applicable rate for temporary total disability benefits is $\ 464.76, and because employer paid temporary total disability benefits at the rate of $\ 40 per week during those time periods, we conclude that employer is liable for a $\ 424.76 underpayment of temporary total disability benefits for each of the 35 and $4 / 7$ weeks that employee was temporarily and totally disabled. We conclude, therefore, that employer is liable for a total of $\ 15,109.32 in underpayment of temporary total disability benefits.

On pages 6, 8, and 18 of the administrative law judge's award, she rendered findings with respect to the number of hours employee worked in the weeks preceding his injury. These findings appear to have derived from employee's Exhibit 7, which contains copies of employee's time and attendance records with employer. We note, however, that employer's Exhibit D contains a more complete record of employee's time and attendance, in that it includes the attached "Overtime Detail" pages for each pay period, which employ