Kenny Branham v. Schrimpf Landscaping, Inc.

Section 287.250 RSMo provides the framework for calculating an employee's average weekly wage, and provides, in relevant part, as follows:

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. ...

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 employee as a full-time or regular employee, but such computation shall not be based on less than thirty hours per week.
2. 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 the parties agree in their briefs, and as the administrative law judge recognized in her award, there is considerable ambiguity in this case with regard to the appropriate average weekly wage for employee. This is because employee did not work a regular schedule but rather worked whenever work was available, and earned a different hourly rate depending on where he worked and what he was doing. In addition, although the wage records maintained by employer and submitted into evidence by employee

Employee: Kenny Branham

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suggest that employee's pay varied greatly from week-to-week, these records do not reveal the amount of hours employee worked per day or per week, but instead divide employee's hours by project. Consequently, it is impossible to determine the reason why employee's wages varied so considerably; and specifically, whether such variances were due to absence of a regular or scheduled workday (such as in cases of inclement weather) or some other reason.

Both employee and employer's vice president, Steve Schrimpf, generally agreed that employee worked as much as possible, and that it was not uncommon for employees to work up to 60 hours per week when such work was available and weather permitted. However, neither employee nor Mr. Schrimpf were able to provide much clarification of the figures set forth in the wage records. In fact, Mr. Schrimpf went so far as to indicate that any extrapolation of employee's work schedule from these records, absent employee's daily time sheet, would amount to speculation. Transcript, page 1522. Notably, Mr. Schrimpf testified he was unable to locate any other wage or payroll records despite employee's pre-trial discovery request for same.

Faced with these ambiguities, the administrative law judge found it most appropriate to apply § 287.250.4 RSMo, and assume employee worked a 30-hour week, given the statutory minimum of 30 hours per week for part-time employees under § 287.250.3 RSMo. The administrative law judge then assumed an average hourly rate of $29.07 per hour, presumably based on dividing employee's gross earnings by the total number of hours reflected in the wage records. Both employer and the Second Injury Fund appeal, arguing that no "exceptional facts" were presented in this case to warrant application of § 287.250.4, and thus the administrative law judge should instead have applied § 287.250.1(4) and simply divided by 13 the gross wages shown on employer's wage records for the 13 weeks preceding the week in which employee suffered the work injury, because employee was paid by the hour.

Accordingly, the first question we must answer is whether this case presents exceptional facts for purposes of § 287.250.4 that prevent our determination of a fair and just average weekly wage using subsections 1 to 3 of § 287.250. After careful consideration, we find that such exceptional facts exist in this case, for the following reasons. First, the fact that employee earned a variable hourly rate arguably takes this case beyond the scope of § 287.250.1(4), which applies where "the wages [are] fixed by the ... hour." Employee was paid by the hour, but that hourly wage was certainly not "fixed"; instead, employee's hourly wage varied considerably from day-to-day depending upon where employee was working and what he was doing.

Second, the fact that employer was only able to produce the above-described wage reports in response to employee's discovery request, and that such records are so lacking in permitting us to determine employee's work schedule, strikes us as an exceptional circumstance. In our experience, it is relatively rare for the parties to need the assistance of the fact-finder to determine an employee's appropriate average weekly wage; it is rarer still for the employer's records to prove so unhelpful in doing so.

We modify the award of the administrative law judge as to the issue of the appropriate average weekly wage and resulting rates of compensation for permanent total and temporary total disability benefits.

Employee is entitled to temporary total disability benefits from the employer at the rate of $\ 573.04 per week for 226.58 weeks. Crediting employer for previously paid temporary total disability benefits in the amount of $\ 106,045.04, employer owes the additional sum of $\ 23,794.36 for temporary total disability benefits.

Employee is entitled to permanent total disability benefits from the Second Injury Fund at the rate of $\ 573.04 per week.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued April 3, 2017, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees herein as being fair and reasonable.

Any past due compensation shall bear int