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 f