Manshava Johnson v. Value St. Louis Properties, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 07-059414

**Employee:** Manshava Johnson

**Dependent:** Belinda Johnson

**Employer:** Value St. Louis Properties, Inc.

**Insurer:** Sentinel Insurance

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard oral argument, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues:

1. Whether employee's average weekly wage as stipulated in a hardship hearing should be changed, which would affect the rate of temporary total disability benefits;
2. Whether employee should receive temporary total disability benefits from February 10, 2008 through January 31, 2014;
3. Future medical care;
4. Permanent partial disability; and
5. The applicability of the decision in *Schoemehl v. Treasurer of State*, 217 S.W.3d 900 (Mo. 2007).

The administrative law judge determined as follows:

1. Employee's stipulated average weekly wage could not be changed, resulting in rates for temporary total disability benefits of 405.27 and permanent partial disability of 376.55;
2. Employee is not to receive temporary total disability benefits from February 10, 2008 through January 31, 2014;
3. Employee sustained 50% permanent partial disability of the body as a whole and is entitled to $75,310.00 in compensation;
4. Employee is not entitled to future medical care; and
5. The remaining issues are moot.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred in:

1. Concluding that the parties' stipulation regarding employee's average weekly wage was binding;
2. That employee is not entitled to temporary total disability benefits from February 10, 2008 through January 31, 2014;
3. That employee is not permanently and totally disabled due to the primary injury.

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1. Employer paid temporary total disability benefits from June 12, 2007 through February 9, 2008.
2. In his application for review, employee did not argue that he was in the rehabilitative process from February 10, 2008 through January 31, 2014. Employee did not reference *Greer v. Sysco Food Servs.*, 475 S.W.3d 655 (Mo. 2015), or any of the statutes revised subsequently to *Greer* regarding temporary total disability and maximum medical improvement (See § 287.020.12, RSMo; § 287.149, RSMo). Because employee did not raise these issues on appeal, the Commission does not address whether employee was in the rehabilitative process from February 10, 2008 through January 31, 2014, and whether employer was thus mandated to pay temporary total disability benefits during that timeframe.

Injury No.: 07-059414

Employee: Manshava Johnson

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(4) that employee is not entitled to future medical treatment; and (5) that the holding in *Schoemehl v. Treasurer of State* does not apply in this matter.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of employee's average weekly wage as stipulated and the applicable rate of temporary total disability.

**Discussion**

**The Commission is not Bound by the Parties' Stipulation in This Matter**

In a hardship hearing on July 22, 2013, the parties stipulated to an average weekly wage of 607.90, resulting in a weekly rate for temporary total disability benefits of 405.27. At that hearing, employer offered a wage statement that would have shown an average weekly wage of $752.61, but withdrew it when the parties stipulated to the lower wage amount. (July 22, 2013 Transcript, page 8.)

The administrative law judge issued a temporary award on August 26, 2013, which, in part, ordered employer to pay future temporary total disability benefits at the stipulated rate of $405.27 per week. Starting January 31, 2014, employer started paying employee temporary total disability benefits at a rate of $501.74 per week. Transcript, pages 2-3. This continued through December 11, 2014, when employee reached maximum medical improvement. *Id.*, at page 2. When employee realized that he was being paid a higher amount, he reviewed the wage statement and realized that the wage statement supported an average weekly wage amount of 752.61, which would result in a rate for temporary total disability benefits of 501.74 per week. *Id.*, at pages 2-3.

At the final hearing, employee argued that the stipulated average weekly wage of $607.90 was a mutual mistake and that employee erroneously presumed that the wage statement reflected the stipulated amount. *Id.*, at page 2. Employee offered employer's wage statement into evidence. Employer objected to the wage statement as hearsay and stated that the "issue was stipulated to and agreed upon at the prior trial. The wage statement was available to everyone at that time." *Id.* Employer further objected to changing the stipulated amount because "[t]here's been no change in the evidence." *Id.* The administrative law judge admitted the wage statement into evidence over employer's objection.

Employer agreed at the final hearing that it actually never used the lower rate for temporary total disability benefits, but paid such benefits at the higher rate of $501.74 per week from June 12, 2007 through February 9, 2008 and from January 31, 2014 through December 11, 2014. Transcript, pages 2-3. However, the administrative law judge held that she was bound to the parties' stipulation regarding employee's average weekly wage.

This Commission is not bound by the parties' stipulation at the hardship hearing of an average weekly wage of $607.90, because the rate was found in a temporary award and the parties' stipulation, if applied, would create a manifest injustice.

TI3081-1307

Injury No.: 07-059414

Employee: Manshava Johnson

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Section 287.510, RSMo, contemplates that a final award may be in accordance with a temporary award and that the administrative law judge or the Commission may change a temporary award.³ Section 287.510, RSMo, provides,

> In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

Citing this statute, the court in *Dilallo* held that "[t]his language recognizes that the final award may differ from the temporary or partial award. 'The legislature clearly contemplated that the ALJ may render a decision in a final hearing which differed from that of the temporary or partial award.'" *Dilallo v. City of Md. Heights*, 996 S.W.2d 675, 677 (Mo. App. 1999) (quoting *Welch v. Eastwind Care Center*, 890 S.W.2d 395, 398 (Mo. App. 1995)).

Therefore, the Commission may change the rate found in the temporary award. Accordingly, we find that employee's average weekly wage was 752.61, resulting in a rate for temporary total disability benefits of 501.74.

Regarding the effects of the stipulation, there are no cases regarding stipulations made prior to a hardship hearing. However, generally speaking, "Stipulations are normally controlling and conclusive and courts are bound to enforce them." *Spacewalker, Inc. v. Am. Family Mut. Ins. Co.*, 954 S.W.2d 420, 424 (Mo. App. 1997) (citing *International Dehydrated Foods, Inc. v. Boatright Trucking, Incorporated*, 824 S.W.2d 517 (Mo. App. 1992)).

However, the court in *Spacewalker* understood that there were exceptions and stated that

> [S]tipulations must be viewed in light of what the parties were attempting to accomplish. ... Litigation stipulations can be understood as the analogue of terms binding parties to a contract. As in contract law though, rules limiting litigants to trial stipulations are not absolute ... 'A stipulation of counsel originally designed to expedite the trial should not be rigidly adhered to when it becomes apparent that it may inflict a manifest injustice upon one of the contracting parties.'

*Spacewalker, Inc.*, 954 S.W.2d at 424 (quoting *T I Federal Credit Union v. Delbonis*, 72 F.3d 921 (1st Cir. 1995)).

Here, there would be a manifest injustice to employee if the parties' stipulation bound the Commission to a significantly lower average weekly wage. This is especially true here when employer already paid employee at the higher rate of $501.74 per week from

³ See *Dilallo v. City of Md. Heights*, 996 S.W.2d 675 (Mo. App. 1999).

TI3681-0301

Implye: Manshava Johnson

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June 12, 2007 through February 9, 2008 and from January 31, 2014 through December 11, 2014. Therefore, this Commission is not bound by the parties' stipulation.

We modify the award of the administrative law judge as to the issue of employee's average weekly wage and the applicable rate of temporary total disability. Employee's average weekly wage is $\ 752.61, resulting in a rate for temporary total disability benefits of $\ 501.74.

The award and decision of Administrative Law Judge Kathleen M. Hart is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 $\qquad$ day of November 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member


Curtis E. Chick, Jr., Member

Attest:


Employee: Manshava Johnson

Injury No.: 07-059414

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed.

I would affirm the administrative law judge's award allowing benefits with the stipulated average weekly wage of $607.90. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Manshava Johnson

Injury No.: 07-059414

Dependents: Belinda Johnson

Employer: Value St. Louis Properties

Additional Party: none

Insurer: Sentinel Insurance

Hearing Date: September 26, 2017

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: June 11, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis
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. D