William Johnson v. RPCS d/b/a Price Cutter Plus

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

The administrative law judge noted the absence of any evidence demonstrating the average weekly wage of any other full-time or regular employee engaged by employer to perform work of the same or similar nature as employee. In the absence of such evidence, the administrative law judge nevertheless found it appropriate to utilize the statutory minimum of a 30-hour week at employee's hourly pay rate of 20.38, resulting in an average weekly wage of 611.40, and a weekly death benefit rate of $407.60.

Claimant appeals, arguing the administrative law judge erred by utilizing a 30-hour week in his calculations, and instead should have used employee's average weekly wage when employee was working for employer on a full-time basis as a meat market manager. Claimant asks us to assume that employee's work as a part-time floating meat cutter was "of the same or similar nature" as employee's prior work as a full-time meat market manager, and thus evidence of employee's own prior average weekly wage is sufficient for purposes of § 287.250.3.

However, we find insufficient evidence on this record to support a finding that employee's work for employer both before and after retirement was of the same or similar nature. This is because there is no evidence to permit us to determine the nature of employee's duties, before retirement, as a meat market manager, other than the sole fact that employee worked at only one location while so engaged. Presumably, before his retirement, employee performed a number of managerial tasks in addition to his sole post-retirement duty of cutting meat, but in any event, because the record is unclear on this point, we cannot make a finding that these jobs were of the same or similar nature for purposes of § 287.250.3.

In fact, it is debatable whether any application of § 287.250.3 in this case is appropriate. The 30-hour statutory minimum does not operate to cure gaps in the claimant's evidence, or to establish a de-facto 30-hour week wherever the evidence shows an injured employee was working part-time. There is no evidence on this record to establish "the number of hours per week required by the employer to classify [an] employee as a full-time or regular employee." Consequently, there would appear to be no basis for referring to or applying the 30-hour minimum, as there is no evidence that employer attempted to classify meat cutters working less than 30 hours per week as "full-time or regular" employees.

Ultimately, however, we affirm the administrative law judge's use of a 30-hour week in calculating employee's average weekly wage, because it strikes us as both "fair" and "just" pursuant to § 287.250.4, 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.

As we have noted above, employee was working an average of only about 22 hours per week at the time of his death. However, employer has not appealed the administrative law judge's award utilizing a 30 -hour week. We are of the opinion that an average weekly wage based upon a 30 -hour week properly takes into account both the highly variable, part-time nature of employee's services at the time of his work injury, as well as his lengthy, prior tenure with employer working as a full-time meat market manager. For this reason, we affirm, as supplemented herein, the award of the administrative law judge with respect to the appropriate average weekly wage and rate of compensation.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Robert H. House, issued October 12, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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.

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }} \qquad$ day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Hearing Date: August 24, 2016

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 occupation disease under the Law? Yes
4. Date of accident: September 3, 2015
5. State location where accident occurred: Galena, Cherokee County, Kansas
6. Was above employee in employ of above employer at time of alleged accident? Yes
7. Did employer receive proper notice? Yes
8. Did accident 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? Yes
11. Describe work employee was doing and how accident occurred: Employee was killed in a motor vehicle accident
12. Did accident cause death? Yes. Date of death? September 3, 2015
13. Part(s) of body injured by accident: Death
14. Nature and extent of any permanent disability: Death

The parties presented evidence at a hearing on August 24, 2016. Dora Johnson, the widow of William Robert Johnson, III, appeared in person and with her attorney, Shelly Dreyer. Employer/insurer appeared through their attorney, Katharine Collins. The Second Injury Fund was not a party to the case. The Division had jurisdiction to hear this case pursuant to $\S 287.110$, RSMo.

The parties presented two issues to be determined: 1. Whether William Robert Johnson, III, died as a result of an accident arising out of and in the course and scope of his employment; 2. The average weekly wage of William Robert Johnson, III, and the wage rate resulting for that average weekly wage. For the reasons noted below, I find that William Johnson sustained a compensable accident on September 3, 2015, which resulted in his death, that his average weekly wage was $\ 611.40 and that his dependent, Dora Johnson (widow), is entitled to death benefits at a workers' compensation rate of $\ 407.60 per week. The parties agree that the funeral, burial, and medical expenses have been paid by the employer.

Exhibit 1, a Stipulation of Facts, was offered and received into evidence. The parties stipulated that on September 3, 2015, Robert William Johnson, III, was killed in a motor vehicle collision that occurred in Cherokee County, Kansas. At the time of the fatal motor vehicle collision, Robert William Johnson, III, was an employee of Price Cutter Plus. In June, 2015, Robert William Johnson, III, retired from working for Price Cutter Plus full time and began working part time as a "floater" meat cutter. As a "floater," Robert William Johnson, III, was not assigned to a specific store. He traveled to different grocery stores owned by Price Cutter Plus as needed. On the day of the fatal collision, Robert William Johnson, III, was working at the store owned by Price Cutter in Baxter Springs, Kansas. At the time of the fatal motor vehicle collision, Robert William Johnson, III, was traveling from the Baxter Springs' store to his home in Carl Junction, Missouri. Price Cutter Plus is headquartered in Rogersville, Missouri. At no time in his employment with Price Cutter Plus did Robert William Johnson, III, work in Price Cutter's headquarters in Rogersville, Missouri. William Johnson, III was paid for mileage. At the time of his death, William R. Johnson did not have any minor children. William R. Johnson incurred medical bills in the amount of $\ 7,475.63 for medical treatment from the time of the collision until the time of his death, which have been paid by Price Cutter Plus. The funeral expenses for William R. Johnson were $\ 1,961.50 and have been paid by Price Cutter Plus. No death benefits,

other than the funeral and medical expenses have been paid by the employer or its insurer. Attached to Exhibit 1 is a wage statement showing Mr. Johnson's wages for 52 weeks prior to his death.

The evidence at the hearing included testimony of Dora Johnson, Mike Turk, and exhibits. Dora Johnson testified that her husband, William Robert "Bob" Johnson, III, worked as a journeyman meat cutter for Pricecutter full time at the Carthage, Missouri store until he retired in June, 2015. Before retiring, Mr. Johnson would work at least 40 hours per week, and most weeks he worked overtime. After he retired, he started working for Pricecutter part time as a "floater" meat cutter. Mrs. Johnson explained that a "floater" traveled to the different stores owned by Pricecutter as needed by the employer. As a "floater," William Robert Johnson, III, was paid mileage for his travel to and from whichever store he was assigned for the day. Mike Turk, employee of Pricecutter, testified on behalf of the employer and testified that William Robert Johnson, III, was paid after the first ten miles from the Carthage store and after the first ten miles from the assigned store. The parties agree that William Robert Johnson, III, was paid for mileage for travel to the store he was assigned on the day of his death. Dora Johnson testified that her husband would keep track of his mileage in a notebook and then turn the mileage into Pricecutter. He would then be paid monthly for his mileage.

Dora Johnson testified that Robert William Johnson, III, was involved in the fatal motor vehicle collision at approximately 3:17 p.m. near Galena, Kansas. Dora Johnson testified that her husband was scheduled to work until 4:00 p.m. that day, but he would often skip his lunch and leave an hour early from work. She testified that she believes that he skipped his lunch that day because he was planning on coming home right after work to work on a project. She also testified that if he did not plan to come straight home after work, he would text her. She did not receive a text that day indicating that he was not coming straight home. She also testified that the accident occurred on the route her husband would take to and from the Baxter Springs store. Mrs. Johnson testified that her husband did not ever work at Pricecutter's headquarters in Rogersville, Missouri.

Mike Turk, an employee of Pricecutter, testified on behalf of the employer. He also testified that when William Robert Johnson, III, went to part time work in June, 2015, he began working as a "floater" and would be assigned to different stores, based on the employer's needs. Mr. Turk testified that each Friday, Pricecutter would communicate to Mr. Johnson the hours and stores where he would be working the following week. He testified that Mr. Johnson would usually work 3-4 days per week. The week of his death, Mr. Johnson was only scheduled to work one day. Mr. Turk testified that Pricecutter owns 48 stores, and generally tried to assign Mr. Johnson to stores in the western region. Exhibit 7, which is Mr. Johnson's schedule for the weeks ending July 18, 2015, to September 5, 2015, showed Mr. Johnson working at seven different store locations during that time frame. It also showed weeks where he would work at different stores during the same week.

The following exhibits were admitted without objection:

Exhibit 1: Stipulation of Facts and 52 week wage statement

Exhibit 2: Mileage Report

Exhibit 3: Work schedule

Exhibit 4: Marriage Certificate

Exhibit 5: Dora Johnson's Birth Certificate

Exhibit 6: Death Certificate

Exhibit 7: Schedule

Exhibit 8: Claimant's computation of average weekly wage

Generally, an accident occurring while an employee is going to and coming from work is not compensable. Garrett v. Industrial Commission, 600 S.W.2d 516, 519 (Mo. App. S.D. 1980). In 2005, the Missouri legislature codified the coming and going rule for employees traveling to and from the employer's principal place of business in $\S 287.020 .5$ R.S. Mo., which states:

Injuries sustained in a company owned vehicle or subsidized automobile that occur while traveling from the employee's home to the employer's principal place of business or from the employer's principal place of business to the employee's home are not compensable. The extension of premises doctrine is abrogated to the extent it extends liability for accidents that occur on property not owned or controlled by the employer even if the accident occurs on customary, approved, permitted, usual or accepted routes used by the employee to get to and from their place of employment.

In Harness v. Southern Copyroll, Inc., 291 S.W.3d 299 (Mo. App. S.D. 2009), the Court held that this statute must be strictly construed and that the phrase "the employer's principal place of business" allows the employer to have only one principal place of business. In Harness, the principal place of business was the employer's headquarters. Harness at 305. In this case, the parties agree that Pricecutter's headquarters is located in Rogersville, Missouri. The evidence presented was that Mr. Johnson did not ever travel to the headquarters in Rogersville, and that he did not travel to one specific location. Each week he would be assigned a different schedule at different stores, depending on the needs of the employer. He was paid mileage for his travel. At the time of the fatal collision, Mr. Johnson was in route home from employer's store in Baxter Springs, Kansas, and, therefore, he was not traveling to the employer's principal place of business from his home or from his home to employer's principal place of business. Because he was not traveling from employer's principal place of business to his home or from his home to employer's principal pace of business, $\S 287.020 .5$ does not defeat the claim.

Also as stated in Harness at 305:

Generally, an accident occurring while an employee is going to and from work is not compensable. See Garrett v. Industrial Commission, 600 S.W.2d 516, 519 (Mo.App.1980). This result attends because "[t]he employer usually controls neither the place of residence chosen by the employee nor his mode of transport and the employer therefore plays no part in the relative extent of the risk incurred by the employee in traveling to and from work." Id. An exception

exists, however, "where the employer, because of the distance to the job site or for the convenience of the employer, furnishes the employee's transportation, compensates the employee for use of his own vehicle, or pays the employee for travel time." Id.; see Reneau v. Bales Electric Company, 303 S.W.2d 75, 79 (Mo.1957). This exception, known as the Reneau doctrine, is generally interpreted to mean that an employee whose work entails travel away from the employer's primary premises is held to be in the course of employment during the trip, except when on a distinct personal errand. Custer, 174 S.W.3d at 611; Williams v. Transpo Int'l, Inc., 752 S.W.2d 501, 505 (Mo.App.1988); Baldridge v. Inter-River Drainage Dist. of Missouri, 645 S.W.2d 139, 140-41 (Mo.App.1982). The employee would be traveling in the course of employment until the trip ended. Custer, 174 S.W.3d at 612; Baldridge, 645 S.W.2d at 14041. However, the recent amendment to $\S 287.020 .5$, as discussed in the previous point, abrogated the Reneau doctrine to the extent that injuries in a company-owned or subsidized automobile are not compensable while traveling from: (1) the employee's home to employer's principal place of business; or (2) the employer's principal place of business to employee's home. Unless one of these exceptions applies, the Reneau doctrine remains in effect to allow compensation. The Commission determined that neither exception applied and awarded benefits.

Therefore, I find that Mr. Johnson was not traveling from employer's principal place of business to his home or from his home to his employer's principal place of business at the time the collision occurred. Additionally, Mr. Johnson's travel was being subsidized. He was being paid mileage. The Reneau doctrine makes his trip compensable and the exception to Reneau in $\S 287.050 .2$ does not apply to his trip. The evidence demonstrates that claimant was traveling a route from the Baxter Springs, Kansas store to his home in Carl Junction and nowhere else. Based upon all of these facts, I find and conclude that William Robert Johnson, III, died as a result of an injury arising out of and in the course and scope of his employment. The holding in Harness is dispositive of the issue of accident arising out of and in the course and scope of Mr. Johnson's employment.

The parties dispute the method to be used to calculate Mr. Johnson's average weekly wage. Claimant asserts that $\S 287.240$, which states when and how death benefits are to be applied, is the applicable statute for determination of the average weekly wage in this death case. Employer/Insurer argue because Mr. Johnson went to part-time employment in June 2015, only the wages for those weeks that he worked part-time should be used to calculate the average weekly wage. They would apply the 30 -hour rate found in $\S 287.250 .3 to calculate an average weekly wage of \ 611.40 ( $\ 20.38 per hour x 30 hours per week), since Mr. Johnson worked fewer than 30 hours each week.

Generally, workers' compensation rates are determined pursuant to § 287.250. Oberley v. Oberley Engineering, Inc., 940 SW2d 953 (Mo.App. SD 1997). In order to determine the proper

wage and compensation rate, the method of determining which subsection of the workers' compensation act applies to determine wage rate and compensation rate is applicable is to commence with the first subsection and to descend in numerical order under the subsections until a wage rate provision applicable under the facts of each case is found. Cross v. Crabtree, KCCT. AP. 364 SW2d 61 (1962). From the facts in this case it is clear that a deceased employee, Mr. Johnson, was a part-time employee being paid by the hour for his work as testified by Mr. Turk and is set out in Claimant's wage statement (Exhibit 8). As a result, it appears that the first applicable section concerning claimant's wage rate would be $\S 287.250 .3$, that section is as follows:

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

That subsection clearly, in cases such as this case, indicates that death benefits "shall be based upon" the 30 -hour rule for part-time employees. As a result, I find that $\S 289.250 .3 is applicable in this case to determine wage and compensation rate, not \S 287.240. Strictly construing the statute in dealing with \S 287.250 .3 and the decision in Cross v. Crabtree. \S 287.250 .3$ requires the rate to be calculated based upon an average weekly wage of a full-time or regular employee engaged by the employer in the same or similar work with a minimum computation based on no less than 30 hours per week.

Evidence in this case presented Mr. Johnson's wage statement which sets out what Mr. Johnson was paid when he was a full-time employee. There is no evidence of any other regular or full-time employee's wages. Based upon Mr. Johnson's wage statement it is clear that he was making $\ 20.38 per hour which resulted in a gross pay amount of $\ 815.20 for a 40 -hour work week. Applying this same calculation of $\ 20.38 to a 30 -hour work week, Mr. Johnson's average weekly wage as a part-time employee would be $\ 611.40 resulting in a workers' compensation rate of $\ 407.60 per week. As a result, I order employer/insurer to pay to claimant's widow and dependent the death benefit of $\ 407.60 per week beginning September 4, 2015, the date following Mr. Johnson's death, and to continue said payment weekly thereafter for the life of Mrs. Johnson as the sole dependent of her husband.

The evidence presented at the hearing was that Dora Johnson, Mr. Johnson's widow, is the only dependent of William Robert Johnson, III. Pursuant to §287.240(4), Dora Johnson is presumed to be totally dependent for support upon the deceased employee and is entitled to the death benefit pursuant to Chapter 287. Consequently, I order employer and insurer to pay Dora Johnson the entire death benefit of $\ 407.60 per week until such time Dora Johnson dies or remarries. If Mrs. Johnson remarries, pursuant to $\S 287.240(4)$ a lump sum payment equal in amount to the benefits due for a period of two years shall be paid to Dora Johnson. Thereupon the periodic death benefits shall cease.

Claimant Doris Johnson's attorney, Shelly Dreyer, is allowed an attorney's fee of twentyfive percent of all amounts awarded herein which shall constitute a lien upon this award.

Made by: $\qquad$

Robert H. House

Administrative Law Judge

Division of Workers' Compensation