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 interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 7th \qquad$ day of December 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

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 occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: July 17, 2006
5. State location where accident occurred or occupational disease was contracted: Buchanan County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease 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 or occupational disease contracted: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 45 % body as a whole
15. Compensation paid to-date for temporary disability: $\ 106,045.04
16. Value necessary medical aid paid to date by employer/insurer? $\ 172,625.31

Employee: Kenny Branham Injury No. 06-077118

1. Value necessary medical aid not furnished by employer/insurer? Unknown
2. Employee's average weekly wages: Variable
3. Weekly compensation rate: $\ 581.40 for temporary and permanent total disability benefits $\ 376.55 for permanent partial disability benefits
4. Method wages computation: By utilizing RSMo Section 287.250.4

1. Amount of compensation payable: Employer: Past due TTD (\$113.38 x 226.58 weeks) = \25,689.64 PPD (180 weeks x \ 376.55 ) $=\ 67,779.00
2. Second Injury Fund liability: PTD differential from September 28, 2011 (180 weeks x \$204.85) = \$36,873.00 PTD from March 12, 2015 forward

(180 weeks from September 28, 2011 is March 12, 2015)

1. Future Requirements Awarded: Future medical treatment

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder except future medical in favor of the following attorney for necessary legal services rendered to the claimant: Rudolph Veit.

Employee: Kenny Branham Injury No. 06-077118

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on March 8, 2017; additional deposition testimony on behalf of the claimant was submitted by March 24, 2017. Memoranda were submitted by March 27, 2017.

The parties stipulated that on or about July 17, 2006, the claimant, Kenny Branham, was in the employment of Schrimpf Landscaping, Inc.; Mr. Branham sustained an injury by accident; the accident arose out of and in the course of his employment. The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by Regent Insurance Company. The employer had notice of the injury. A claim for compensation was timely filed. Temporary disability benefits have been paid to the claimant to date in the amount of $\ 106,045.04 for 226.58 weeks at a rate of $\ 468.02 per week. Medical care has been provided in the amount of $\ 172,625.31.

The issues to be resolved by hearing include 1) the determination of the appropriate wage rate and its effect on the 226.58 weeks of temporary total disability paid, 2) the liability of the employer/insurer for permanent disability benefits, 3) the liability of the Second Injury Fund for permanent disability benefits, and 4) the liability of the employer/insurer for future medical treatment. Permanent total disability is alleged.

The parties stipulated to a date of maximum medical improvement on September 28, 2011.

The award is subject to a child support lien in the amount of $\ 619.23.

A temporary award in this case was issued on July 19, 2010. The facts stated in that award are incorporated into this award and will not be restated except to state that Mr. Branham was injured on July 17, 2006, when he fell from a truck injuring his back. After the back surgery performed by Dr. Abernathie on May 10, 2007, and discussed in the temporary award, Mr. Branham had two subsequent back surgeries. Mr. Branham then had surgery in 2012 to remove bone graft material from his stomach wall.

Prior to the 2006 accident and injury Mr. Branham was injured in 2000, while working for a roofing company. Mr. Branham had back surgery performed by Dr. Rodgers at the L5-S1 level. Division of Workers' Compensation records reflect that the July 26, 2000 case settled based on a permanent disability of 16.1 percent of the body.

Mr. Branham described his education, saying that he quit school in the tenth grade. Mr. Branham testified that he received his GED in 1999 or 2000. Mr. Branham can read but says that his vocabulary is limited. Mr. Branham believes that he has basic math skills.

Mr. Branham's work history includes work in a chicken factory cleaning chicken houses and catching chickens as well as maintenance for Tyson. Mr. Branham has installed pools, farmed, roofed, worked for a fiber optic company indicating where drilling should be performed, and worked as a plumber before working as a landscaper for Schrimpf Landscaping, Inc. (Schrimpf).

Mr. Branham testified that prior to his back injury in 2000, he participated in a number of recreational activities, including rodeos, motocross (which Mr. Branham described as jumping dirt bikes), bow hunting, and 3D target shooting (which Mr. Branham described as target practice).

Mr. Branham testified that after his 2000 injury and 2001 surgery he could no longer engage in roofing because he could not handle the repetitive lifting and could not lift the 75 - to 100 -pound bundles of shingles. After the 2001 surgery Mr. Branham complained of continued back pain and some leg pain; Mr. Branham could no longer run as he had before the 2000 accident and quit participating in motocross and rodeo events and curtailed his 3D shooting activities. Mr. Branham described his post 2001 job for Fiber Optics as carrying around a monitor for drilling and lifting no more than a five pound box. Mr. Branham worked for Central Missouri Plumbing after 2001; he described it as a commercial plumbing business where he could sit or stand as needed to solder pieces of copper pipe together. After the 2000 back injury and 2001 surgery Mr. Branham took hydrocodone and over the counter pain relievers to relieve his back pain, but testified that it was primarily over the counter medications.

The Schrimpf job, according to Mr. Branham, involved driving a tanker truck and seeding beside the highways; Mr. Branham would either drive or operate the sprayer. Mr. Branham also laid sod for Schrimpf or sprayed mulch; spraying the mulch involved dumping 30 to 40 pound bags of mulch into the hopper. Mr. Branham described the job as manual labor. Mr. Branham testified that he did not work the "block crew" for Schrimpf which involved building "sound walls" to block highway noise as well as highway overpass pyramids prior to 2006 because the work was too strenuous and too heavy.

Since the 2006 accident and injury, Mr. Branham has given up all sports activities with the exception of fishing with his sons. Mr. Branham testified to daily chronic pain. Mr. Branham said that he wears two braces, one for nerve pain in his leg and one for his stomach. Mr. Branham described wearing a TENS unit on his back to numb and lessen the back pain. Mr. Branham described resting daily and taking a muscle relaxer, Gabapentin, at noon to alleviate his back

**Employee:** Kenny Branham

**Injury No.:** 06-077118

Pain. Mr. Branham can no longer bend or stoop due to back pain and has to get on his hands and knees to pick up items from the ground. Mr. Branham has not worked or drawn unemployment compensation benefits since the date of the temporary award hearing on May 26, 2010.

Steve Schrimpf, vice president of Schrimpf Landscaping, Inc., testified by deposition that he had no real way of knowing how many days a week Mr. Branham worked by looking at the pay stubs that are Exhibit 19. Mr. Schrimpf's check stubs for the period of time that Mr. Branham worked for him showed the hours worked in a week divided up by project and what types of work was being done to justify different rates of pay. The check stubs showed standard and overtime hours and bonus payments which reflected pay for hours spent traveling. Mr. Schrimpf testified that a week's pay stub might also reflect back pay for a past week in which pay was miscalculated. Mr. Schrimpf testified that without the daily work time sheet he could not tell what an individual pay stub represented.

Dr. Volarich testified that he evaluated Mr. Branham on October 30, 2012, and issued a report pertaining to that evaluation on the same date. Addenda to that report were issued on April 9, 2015, October 2, 2015 and February 2, 2016. Dr. Volarich stated that Mr. Branham's medical history after and related to the July 17, 2006 accident includes a surgery by Dr. Abernathie followed by two surgeries by Dr. Kuhns and a surgery by Dr. Roberts to remove a mass in the abdominal wall caused by bone graft material after a January 24, 2011 fusion. The surgeries were described as follows: May 10, 2007 microlaminotomy and discectomy to the right at L5-S1 with a repair of an annular tear by Dr. Abernathie; June 25, 2008 decompression at L4-5 by means of a hemilaminotomy and foraminotomy by Dr. Kuhns; January 24, 2011 anterior and posterior interbody fusion at L3-4, L4-5 and L5-S1 by Dr. Kuhns; February 1, 2012 surgery to remove the bone graft material from the stomach wall by Dr. Roberts.

Dr. Volarich described Mr. Branham's previous surgery as a discectomy at the L5-S1 level occurring on January 12, 2001, and performed by Dr. Abernathie. Dr. Volarich described the resulting loss of disc space as creating instability at the L5-S1 level and setting Mr. Branham up for another injury. Dr. Volarich opined that the 2001 discectomy was a hindrance to Mr. Branham's employment or reemployment.

Dr. Volarich stated that his diagnosis pertaining to the July 17, 2006 accident is "lumbar right leg radicular syndrome secondary to disc protrusion at L3-4, disc herniation at L4-5, and disc extrusion at L5-S1. Status post right side at L5-S1 laminotomy discectomy and repair of the annular tear. Second was persistent lumbar bilateral lower extremity radicular syndrome status post L4-5, bilateral hemilaminotomies and foraminotomies with disc space exploration, but no discectomy. Third was persistent lumbar bilateral lower extremity radicular syndrome. Status post anterior and posterior fusions with instrumentation L3-4, L4-5 and L5-S1. Fourth was abdominal pain secondary to retroperitoneal ossified bone graft material post lumbar function. Status post exploration laparotomy with resection of the retroperitoneal and abdominal wall foreign body. Last was post laminectomy syndrome also called failed back syndrome." (Volarich depo p28,29, l20-14)

Dr. Volarich diagnosed Mr. Branham's condition prior to 2006 as a "herniated nucleus pulposus at L5-S1. Status post L5-S1 bilateral hemilaminectomy, foraminotomy, and excision of the disc

herniation. Second was mild post laminectomy syndrome secondary to L5-S1 disc bulge and epidural fibrosis. That's scar tissue." (Volarich depo p29, 30, 125-5)

Dr. Volarich opined that Mr. Branham was at maximum medical improvement but would need ongoing pain management in the future primarily for the work-related injury of 2006.

Dr. Volarich opined that Mr. Branham has a permanent disability of 60 percent of the body attributable to the 2006 accident and injury to the lumbar spine and a 20 percent permanent disability to the lumbar spine preexisting the 2006 accident and injury. Dr. Volarich stated that the two injuries combined to make Mr. Branham more disabled in that the first injury to the lumbar spine weakened Mr. Branham's spine and caused the 2006 injury to be more severe than it would have been in the absence of the prior injury. Dr. Volarich recommended that Mr. Branham undergo vocational assessment regarding his ability to return to the work force given Dr. Volarich's opinion that Mr. Branham could not return to work as a laborer and would at best be able to engage only in light duty work.

Dr. Volarich testified that he issued an amendment to his report dated April 9, 2015, stating that a review of Dr. Jeffries report regarding a breakdown in Mr. Branham's spine at the L2-3 level resulted in Dr. Volarich's opinion that the L2-3 right-sided stenosis resulted from the L3-4 fusion and that the 2006 accident and treatment therefor was the prevailing factor in the development of the L2-3 breakdown. Dr. Volarich also testified with regard to an amendment to his report that he issued on October 2, 2015, stating that he had reviewed Mr. Weimholt's report and agreed with Mr. Weimholt's conclusion that Mr. Branham is permanently and totally disabled. Dr. Volarich issued another amendment to his report dated February 2, 2016, which stated that Mr. Cordray found Mr. Branham to be permanently and totally disabled as a result of a combination of the 2006 injury in combination with Mr. Branham's preexisting conditions; Dr. Volarich stated that he agreed with Mr. Cordray's conclusion regarding Mr. Branham's status as permanently and totally disabled.

Dr. Volarich testified that Mr. Branham had radiographic signs of degenerative changes in his spine as early as 1999. Dr. Volarich also acknowledged that on August 3, 2005, Mr. Branham had low back and left lower extremity pain after picking up a piece of pipe. Dr. Volarich opined that Mr. Branham had lumbar degenerative disc disease that pre-existed the July 7, 2006 injury.

Mr. Weimholt, vocational rehabilitation consultant, testified by deposition on November 14, 2016, that he evaluated Mr. Branham on May 20, 2015, and issued a report pertaining to that evaluation on August 20, 2015. Mr. Weimholt concluded that Mr. Branham is neither placeable or employable in the competitive labor market as the result of the 2006 injury and the previous injury to the low back. Mr. Weimholt testified that he agreed with Mr. Cordray's assessment that it was the combination of the 2006 injury combined with Mr. Branham's medical condition prior to 2006 that caused Mr. Branham to be totally disabled. Mr. Weimholt was again deposed on February 28, 2017, regarding his report of January 30, 2017, reviewing the January 4, 2017 vocational assessment/evaluation of Mr. Branham by Mr. Hughes. Mr. Weimholt testified that, contrary to Mr. Hughes' findings, Mr. Branham would not be placeable or employable in the open competitive labor market on a full or part time basis.

Dr. Kuhns, orthopedic spine surgeon, testified by deposition that in June of 2008, he performed an L4-5 decompression procedure on Mr. Branham in order to take the pressure off his nerves at the L4-5 level. Dr. Kuhns declared Mr. Branham to be at maximum medical improvement on October 2, 2008, and opined that Mr. Branham had an eight percent permanent disability. Dr. Kuhns saw Mr. Branham again on September 1, 2009, and at that time Mr. Branham complained of severe back and bilateral leg pain after returning to work.

Dr. Jeffries issued a January 27, 2013 report in which he described Mr. Branham's treatment with Dr. Kuhns and affirmed that the treatment Mr. Branham received after 2009 was a progression of his lumbar spondylosis that was due to the 2006 work injury. Dr. Jeffries also noted that on September 15, 2011, he opined that Mr. Branham's functional capacity exam reflected an ability to work in the medium demand level. Dr. Jeffries opined to a 25 percent permanent disability as the result of the 2011 L3 to S1 decompression and instrumented fusion.

Terry Cordray, vocational rehabilitation counselor, testified by deposition that he performed a vocational assessment of Mr. Branham on November 11, 2015, and issued a report based thereon dated December 22, 2015. Mr. Cordray opined that given Dr. Volarich's restrictions that Mr. Branham would be limited to "sedentary sit/stand" employment. Mr. Cordray went on, however, to say that he did not believe that Mr. Branham could actually be placed in a job given his GED education, his lack of computer clerical skill, and his employment history in only labor positions, as well as that he is low average in math skills, deficient in spelling skills, and below average in intelligence. Mr. Cordray relied on Dr. Volarich's opinion regarding the combination of the 2006 injury with preexisting medical restrictions.

Mr. Cordray pointed out that although Dr. Volarich restricts Mr. Branham to lifting 25 pounds or less, which puts Mr. Branham in a light rather than sedentary work capacity, that Dr. Volarich's prohibition against prolonged standing or sitting places Mr. Branham in the sedentary work capacity.

Mr. Cordray testified that Mr. Branham's work at Schrimpf Landscaping, Inc., was in the medium or heavy demand level due to the weight lifted and the bending and lifting involved, but that Mr. Branham could sit for part of his work and only did occasional lifting. Similarly, at the YMCA position, he was able to take breaks and, as a plumber's helper, he was allowed to sit frequently. Mr. Cordray was not aware that Dr. Jeffries had evaluated Mr. Branham's functional capacity exam and concluded that Mr. Branham was able to perform work in the medium demand level.

Mr. Benjamin Hughes, certified rehabilitation counselor, testified by deposition that he evaluated the medical records, reports, and depositions as well as the reports of other vocational experts pertaining to Mr. Branham's workers' compensation claim. Mr. Hughes issued a report pertaining to his evaluation dated January 4, 2017. Mr. Hughes concluded that utilizing the restrictions imposed on Mr. Branham by Dr. Kuhns and Dr. Jeffries, Mr. Branham would be able to perform sedentary work according to the Dictionary of Occupational Titles (DOT); Mr. Hughes described "basic" jobs that Mr. Branham could perform such as parking lot attendant, ticket sales or ticket taker, greeter and some sedentary security positions. Utilizing the restrictions set out by Dr. Volarich, Mr. Hughes opined that Mr. Branham could also perform

activities in the light range as defined by the DOT and that would cause Mr. Branham to also access jobs such as storage facility rental clerk and overhead crane operator in addition to the jobs mentioned in the "basic" category. Mr. Hughes indicated that if Mr. Branham's work restrictions were found to preclude all employment then that would be as the result of the 2006 accident and injury in combination with his preexisting injury.

Wage records for the weeks between and including April 10, 2006, and July 9, 2006, are in evidence. Over this period of time Mr. Branham earned $\ 9,136.69 and worked 325.5 hours. This amount also includes many bonuses. There is no record of days worked. Mr. Schrimpf explained that the bonuses reflected drive time payment. Hours worked are as few as 1 a week for a week in which Mr. Branham was paid $\ 143.25 due to the inclusion of a $\ 128.25 bonus and as many as 61 a week for which Mr. Branham received $\ 1,734.82 including a $\ 156.50 bonus. An actual hourly wage is difficult to ascertain due to the variance in wage rate depending on the type of work Mr. Branham was doing and the inclusion of the bonuses.

RSMo Section 287.250.1 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:

(1) If the wages are fixed by the week, the amount so fixed shall be the average weekly wage;

(2) If the wages are fixed by the month, the average weekly wage shall be the monthly wage so fixed multiplied by twelve and divided by fifty-two;

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

(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;

(5) If the employee has been employed less than two calendar weeks immediately preceding the injury, the employee's weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment at the time of the injury, except if the employer has agreed to a certain hourly wage, then the hourly wage agreed upon multiplied by the number of weekly hours scheduled shall be the employee's average weekly wage;

(6) If the hourly wage has not been fixed or cannot be ascertained, or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer;

(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. For purposes of this section, the term "gross wages" includes, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging or similar advance received from the employer, except if such benefits continue to be provided during the period of the disability, then the value of such benefits shall not be considered in calculating the average weekly wage of the employee. The term "wages", as used in this section, includes the value of any gratuities received in the course of employment from persons other than the employer to the extent that such gratuities are reported for income tax purposes. "Wages", as used in this section, does not include fringe benefits such as retirement, pension, health and welfare, life insurance, training, Social Security or other employee or dependent benefit plan furnished by the employer for the benefit of the employee. Any wages paid to helpers or any money paid by the employer to the employee to cover any special expenses incurred by the employee because of the nature of his employment shall not be included in wages.
2. 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.
3. 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.
4. In computing the compensation to be paid to an employee, who, before the injury for which the employee claims compensation, was disabled and drawing compensation under the provisions of this chapter, the compensation for each subsequent injury shall be apportioned according to the proportion of incapacity and disability caused by the respective injuries which the employee may have suffered.
5. For purposes of establishing a rate of compensation applicable only to permanent partial disability, permanent total disability and death benefits, pursuant to this chapter, the average weekly wage for an employee who is under the age of twenty-one years shall be adjusted to take into consideration the increased earning power of such employee until she or he attains the age of twenty-one years and the average weekly wage for an employee who is an apprentice or a trainee, and whose earnings would reasonably be expected to increase, shall be adjusted to reflect a level of expected increase, based upon completion of apprenticeship or traineeship, provided that such

Employee: Kenny Branham

Injury No. 06-077118

adjustment of the average weekly wage shall not consider expected increase for a period occurring more than three years after the date of the injury.

1. In all cases in which it is found by the division or the commission that the employer knowingly employed a minor in violation of the child labor laws of this state, a fifty percent additional compensation shall be allowed.
2. For an employee with multiple employments, as to the employee's entitlement to any temporary total or temporary partial disability benefits only pursuant to subsection 9 of section $\underline{287.220}$, and for no other purposes, the employee's total average weekly wage shall be equal to the sum of the total of the average weekly wage computed separately for each employment pursuant to the provisions of this section to which the employee is unable to return because of this injury.
3. The parties, by agreement and with approval of an administrative law judge, legal advisor or the commission, may enter into a compromise lump sum settlement in either permanent total or permanent partial disability cases which prorates the lump sum settlement over the life expectancy of the injured worker. When such an agreement has been approved, neither the weekly compensation rate paid throughout the case nor the maximum statutory weekly rate applicable to the injury shall apply. No compensation rate shall exceed the maximum statutory weekly rate as of the date of the injury. Instead, the prorated rate set forth in the approved settlement documents shall control and become the rate for that case. This section shall be retroactive in effect.

RSMo Section 287.220.2 All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenny Branham

Injury No. 06-077118

deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of the second injury fund.

In order to obtain entitlement to future medical care, a claimant must show by a "reasonable probability" that future medical care is needed by reason of his or her work-related injury. See *Tilley v. USF Holland, Inc.*, 325 S. W. 3d 487,494 (Mo. Ct. App. 2010). "Probable" means founded on reason and experience which inclines the mind to believe but leaves room for doubt. *Fitzwater v. Department of Public Safety*, 198 S. W. 3d 623, 628 (Mo. Ct. App. 2006).

**AWARD**

The claimant, Kenny Branham, has sustained his burden of proof that he is has sustained a permanent disability of 45 percent of the body referable to the low back injury he sustained on July 17, 2006. Mr. Branham has testified credibly regarding the limitations imposed on him by the accident of July 17, 2006, and the multiple ensuing surgeries. Several physicians opined with regard to his limitations and disability following his last back surgery. Most credible are the opinions of Dr. Jeffries and Dr. Volarich, both of whom saw Mr. Branham after his last back surgery.

Mr. Branham has also sustained his burden of proof that he is permanently and totally disabled as the result of his July 17, 2006 accident combined with his preexisting back condition resulting from his 2000 accident. Dr. Volarich and all three vocational rehabilitation consultants opined that Mr. Branham's current condition is the result of the combination of the conditions resulting from the 2006 and 2000 accidents rather than the 2006 accident alone. The only vocational rehabilitation consultant who opined that Mr. Branham is capable of employment in the open labor market is Mr. Hughes; in this case, Mr. Hughes is found less credible than Mr. Weimholt and Mr. Cordray given Mr. Branham's description of the very limited ability he has to lift, bend, sit, and stand and his limited educational and vocational background.

Mr. Branham is entitled to a $581.40 per week permanent total disability compensation rate based on a wage rate of $29.07 per hour for a 30-hour work week. The wage records reflect eight weeks worked at less than 30 hours per week and five work weeks at more than 30-hours per week. Clearly, Mr. Branham was not ordinarily working 40-hour work weeks while employed by Schrimpf. With bonuses Mr. Branham was making an average of about $29.07 per hour. In determining a fair wage pursuant to section 287.250.4, RSMo, the admonition that for purposes

of determining permanent disability a full time salary shall be based on a minimum of a 30-hour work week is the basis for the calculation of temporary disability in this case.

Although the claimant has provided no evidence of days not worked, it is fair to conclude that there were multiple days not worked in the 13-week pay period presented for the calculation of Mr. Branham's compensation rate. Therefore, a fair analysis of employee's wages would lead to a conclusion similar to that presented for the determination of the appropriate rate of permanent total disability benefits, despite the lack of a presumption of a 30-hour work week in the statute for the calculation of the appropriate rate of temporary total disability compensation. Thus the rate for temporary total disability benefits is $\ 581.40.

Finally, Mr. Branham has sustained his burden of proof that he is entitled to future medical care from the employer/insurer. Mr. Branham testified to his ongoing use of braces, a TENS unit, and prescription medication to alleviate his pain from his 2006 accident and injury. Dr. Volarich testified to Mr. Branham's need for pain management.

Made by: $\qquad$ HANNELORE D. FISCHER Administrative Law Judge Division of Workers' Compensation