Heather Bass v. Board of Police Commissioners of Kansas City, Missouri

hearing in this matter, the administrative law judge made the following statement: "I show the average weekly wage agreed to be $\ 1,028 and the compensation rates agreed to be $\$ 685.39 / \ 389.04." Transcript, page 2. Critically, though, the administrative law judge did not invite the parties to indicate, on the record, whether they agreed or disagreed with this statement. Next, the administrative law judge provided a list of what he understood to be the disputed issues in this matter; average weekly wage and rate of compensation were not among the issues listed. Once again, however, the administrative law judge failed to ask the parties whether they agreed or disagreed with his statements as to the issues in dispute.

In his award, the administrative law judge provided the following comments with regard to the average weekly wage:

It is to be noted at this point that the proposed awards submitted by the Employer and Insurer as well as the Claimant allege a different average weekly wage. The Employer alleges an average weekly wage of $\ 1,129, and the Employee alleges an average weekly wage of $\ 1,100. Likewise, the parties have in their proposed awards suggested compensation rates for the Employer $\$ 772.53 / \ 404.66 and the Claimant $\$ 742.72 / \ 389.04. The maximum compensation rates on the date of injury were $\ 742.72 for temporary total disability and $\ 389.04 for permanent partial disability. The average weekly wage agreed to be and on the record presented is $\ 1,028, which would entitle the Claimant to a temporary total rate of $\ 685.33 and a permanent partial rate of $\ 389.04. There was no evidence of wages presented and the agreed upon average weekly wage established the compensation rates to be applied.

Award, page 3.

It is unclear to us why, if the parties' proposed awards were generally in agreement that employee was entitled to the maximum weekly compensation rates, the administrative law judge declined to give effect to this (apparent) agreement or stipulation, especially where he failed to ask the parties, on the record at the hearing, whether his own (apparently mistaken) understanding with regard to the average weekly wage was correct. In any event, the parties' proposed awards submitted to the administrative law judge were not made a part of the record in this matter, and thus are not presently before us as evidence upon which we might rely to give effect to any stipulation or general agreement contained therein that employee is entitled to the maximum compensation rates.

Employee appeals the administrative law judge's determination with regard to her average weekly wage and corresponding rates of compensation. In her brief, employee alleges that the "evidence clearly established that the parties mistakenly stipulated to the wrong average weekly wage of $\ 1,028, prior to the hearing. ... In her Claim for Compensation, Mrs. Bass claimed that her weekly wage was $\ 1,100.00, Employer did not object to this in its' [sic] Answer. ... [T]o hold the Petitioner to a [sic] honest mutual

mistake made by both attorneys in this case would be a grave miscarriage of justice." Petitioner's Brief, page 15.

We disagree that the record before us supports a finding that the parties made a mutual mistake with regard to stipulating employee's average weekly wage. This is because, as we have noted, the record before us does not contain any stipulation by the parties (mistaken or otherwise) with regard to employee's average weekly wage; instead, we have only a recitation of the administrative law judge's own understanding with respect to the stipulations and disputed issues, combined with a discussion in his award that strongly suggests his own understanding was, in fact, mistaken. Meanwhile, a review of the parties' filings with the Division of Workers' Compensation (of which we hereby take administrative notice) reveals that although employee did allege, in her first and each of her subsequent amended claims for compensation, an average weekly wage of $\ 1,100.00, employer disputed, in its first and each of its subsequent amended answers, each and every allegation contained in employee's claims for compensation.

Employer, in its brief, asks us to affirm the administrative law judge's determination with respect to employee's average weekly wage and corresponding rates of compensation, suggesting that "the parties stipulated to an average weekly wage rate of $\ 1,028.00 prior to the hearing." Brief of the Employer, page 8. Again, regardless what the parties may have discussed or agreed off the record prior to the hearing, the transcript of evidence presently before us simply does not contain any stipulation with regard to the average weekly wage. Consequently, it appears that we must resolve this critical issue.

Fortunately, the existing record does contain some evidence as to employee's earnings with employer. Specifically, employee testified that she believed her annual salary with employer was about $\ 62,000.00. Although employee's testimony was somewhat equivocal, employer did not present any contrary evidence. We find that employee's annual salary with employer was $\ 62,000.00.

Section 287.250.1 RSMo provides, in relevant part, as follows:

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: ...

(3) If the wages are fixed by the year, the average weekly wage shall be the yearly wage fixed divided by fifty-two[.]

Dividing employee's annual salary of $\ 62,000.00 by 52 yields an average weekly wage of $\ 1,192.31. We find that this was employee's average weekly wage as of the date of injury. We conclude, therefore, that the appropriate weekly rates of compensation are $\ 742.72 for both temporary total and permanent total disability, and $\ 389.04 for permanent partial disability. See $\S \S 287.170,287.190$, and 287.200.

We would caution that, in the future, parties will be better served by taking every step necessary to ensure that the record contains a complete, accurate, and precise

Enployee: Heather Bass

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statement of the parties' stipulations, as well as the issues in dispute. This is because the administrative law judge and this Commission are duty-bound to both give effect to the parties' stipulations, and to limit our review to the particular issues in dispute, see, e.g., *Hutson v. Treasurer of Mo.*, 365 S.W.3d 269 (Mo. App. 2012), *Boyer v. National Express Co., Inc.*, 49 S.W.3d 700 (Mo. App. 2001), and *Lawson v. Emerson Electric Co.*, 809 S.W.2d 121 (Mo. App. 1991). In the rare case such as this, where the administrative law judge merely recites his or her own understanding of the stipulations and issues without asking the parties whether they agree or disagree, it will be incumbent upon the parties to take additional steps to clarify the record.

The parties disputed the issue of medical causation, but the administrative law judge did not provide any findings of fact or conclusions of law with regard to the relevant statutory test, and did not identify the medical condition(s) he believed to have resulted from the accident of January 2008. The administrative law judge's findings also appear to be inconsistent, as he specifically credited, in a lengthy discussion, employer's psychiatric expert (who found employee suffers no disability as a result of the accident), yet went on to ultimately award permanent partial disability for a psychiatric injury. In light of these concerns, we hereby disclaim the administrative law judge's findings, analysis, and discussion with regard to all issues of medical causation, and instead provide the following findings and conclusions to resolve this issue.

Section 287.020.3(1) RSMo sets forth the statutory test for medical causation applicable to this claim, and provides, in relevant part, as follows:

> An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

Employee presents the testimony of Dr. P. Brent Koprivica, who examined employee on July 16, 2009, and January 21, 2013. Dr. Koprivica believes employee's January 2008 fall at work was the prevailing factor causing her to suffer the following medical conditions with associated permanent partial disability: profound rotator cuff weakness and ongoing chronic pain affecting the left shoulder; chronic cervicothoracic or regional myofascial pain referable to a sprain/strain; intractable headaches that are musculoskeletal in origin; chronic pain and ulnar neuropathy affecting the left elbow; and compensatory complaints of pain affecting the right shoulder.

Employee also presents the expert psychiatric opinion of Dr. William Logan, who believes the January 2008 accident w