Dennis Hadley v. Beco Concrete Products, Inc.

the injury; provided that the weekly compensation paid under this paragraph shall not exceed an amount equal to one hundred five percent of the state average weekly wage;

(Emphasis added).

Section 287.250 RSMo sets forth the method for determining an employee's "average weekly earnings" which shall serve as the "basis for compensation provided in this chapter." Section 287.250 provides, in relevant part: ${ }^{2}$

1. 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. 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;

...

(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.

1. If an employee is hired by the employer for less than the number of hours per week needed to be classified as a full-time or regular employee, benefits computed for purposes of this chapter for permanent partial disability, permanent total disability and death benefits shall be based upon the average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature and at the number of hours per week required by the employer to classify the

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[^0]: ${ }^{2}$ Section 287.250 is reprinted in full in the administrative law judge's award attached hereto.

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employee as a full-time or regular employee, but such computation shall not be based on less than thirty hours per week.

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.

Employer argues the administrative law judge "erred as a matter of law in failing to apply Section 287.240 in determining employee's average weekly wage and compensate [sic] rate." For reasons set forth herein, we believe the administrative law judge applied § 287.240 exactly as written. Employer's urged application, on the other hand, would have us replace some words appearing in § 287.240(2)(d) and completely ignore other words appearing there.

The relevant sentence of § 287.240(2)(d) provides:

The employer shall also pay to the total dependents of the employee a death benefit based on the employee's average weekly earnings during the year immediately preceding the injury that results in the death of the employee, as provided in section 287.250.

As we understand employer's position, employer wants us to apply the provision as if it reads:

The employer shall also pay to the total dependents of the employee a death benefit based on equal to the employee's average weekly earnings during the year immediately preceding the injury that results in the death of the employee, as provided in section 287.250.

The Missouri Supreme Court recently reiterated the basic principles of statutory construction:

"The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning." When engaging in statutory construction, this Court recognizes that "every word, clause, sentence, and provision of a statute must have effect." Presumably, the legislature did not insert superfluous language in a statute.³

Thus, we are bound to give meaning, if we are able, to all words appearing in § 287.240(2)(d), including the phrase "as provided in section 287.250."⁴ At the outset we note that, contrary to employer's position, § 287.420(2)(d) does not say the death benefit is equal to "employee's

³ *St. Charles County v. Dir. of Revenue*, 407 S.W.3d 576, 578 (Mo. 2013).

⁴ *Id.*

Injury No. 12-056972

Employee: Dennis L. Hadley, deceased

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average weekly earnings during the year immediately preceding the injury that results in the death of the employee, as provided in section 287.250." Rather, it says that the death benefit is "based on employee's average weekly earnings during the year immediately preceding the injury that results in the death of the employee, as provided in section 287.250."

Giving meaning to all of the words of the statute as we must, we conclude that the determination of the amount of the death benefit requires a two-step process. First, the factfinder shall apply the provisions of $\S 287.250$ to employee's employment and wage history. The application will produce an amount that is employee's "average weekly earnings which will serve as the basis for compensation." Next, the factfinder must plug the average weekly earnings determined under $\S 287.250 into the formula provided in \S 287.240(2) (d) to calculate the death benefit. { }^{5}$

Although the administrative law judge did not specifically mention § 287.240 in her discussion, the administrative law judge applied $\S \S 287.240$ and 287.250 in just the manner we have described. After applying § 287.250 RSMo to employee's employment and wage history, the administrative law judge concluded employee's average weekly wage was $\ 997.31. The administrative law judge then concluded the weekly death benefit due employee's widow is $\ 664.88, which is "equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings" as directed by § 287.240(2)(d). Employer's first point fails.

Employer next argues that the administrative law judge erred when she applied § 287.250.4 RSMo to determine employee's average weekly wage. Employer argues that since employee was paid by the hour, $\S 287.250 .1(4)$ must be used to determine employee's average weekly wage. Employer asserts the administrative law judge "was not free to engraft an exemption to Section 287.250.1(4) which did not appear in the express words of that provision." Contrary to employer's argument, the administrative law judge did not "engraft an exemption" upon the statute. The administrative law judge relied upon an exemption plainly appearing in § 287.250.4:

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.

Finally, employer cites Oberly v. Oberly Engineering ${ }^{6} and Nielsen v. Max One { }^{7} for the proposition that \S 287.250 .4$ cannot be used absent a showing of "exceptional facts." We agree. Claimant has shown such facts here. We find support for our conclusion in Ash v.

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[^0]: ${ }^{5}$ The calculation of death benefits is consistent with the calculation of benefits for temporary partial disability, temporary total disability, permanent partial disability, and permanent total disability. See $\S \S 287.170,287.180, 287.190. and 287.200 RSMo.

{ }^{6} 940 S.W.2d 953, 956 (Mo. App. 1997).

{ }^{7} 98 S.W.3d 591 (Mo. App. 2003).

Ahal Contracting Co. { }^{8}$ Ash involved a worker who was assigned on an as-needed basis from his local union hall. Mr. Ash received assignments sporadically such that his work was intermittent and part-time. The Ash court affirmed that the intermittent and part-time nature of Mr. Ash's work was an exceptional fact that warranted application of § 287.250.4. ${ }^{9}$ Like Mr. Ash, employee's work for employer was intermittent and employee worked less than full-time hours. The facts surrounding the nature of employee's work constitute exceptional facts as contemplated by $\S 287.250 .4$.

We affirm the administrative law judge's calculation of the weekly death benefit due to employee's dependent.

Section 287.120.5 RSMo provides, in relevant part:

Where the injury is caused...from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefit provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee