Gabrielle Graham v. Rosewood Health and Rehabilitation Center, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 14-073249

**Employee:** Gabrielle Graham

**Employer:** Rosewood Health and Rehabilitation Center, LLC

**Insurer:** Health Care Facilities of Missouri

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, 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 resolve the following issues: (1) employee's average weekly wage and appropriate wage rate for permanent partial disability benefits; (2) employer/insurer's liability for past medical expenses totaling $13,962.60; (3) employer/insurer's liability for future medical; and (4) nature and extent of disability.

The administrative law judge rendered the following determinations: (1) employee sustained 10% permanent partial disability of the body as a whole; (2) employee's average weekly wage was 324.90, resulting in a compensation rate of 216.60; (3) employer/insurer is not liable for past medical expenses or future medical care.

The employee filed a timely Application for Review with the Commission alleging the administrative law judge erred:

- By construing § 287.250.3 RSMo as limiting employee's weekly wage to thirty hours in that the statute does not restrict calculation of a part-time employee's weekly wage to thirty hours per week.

- By finding that medical expenses incurred for treatment employee received on her own were unreasonable and unfair and in denying future medical treatment based a finding that employee's expert Dr. James Stuckmeyer was less credible than employer/insurer's medical expert because he made no distinction between treatments related to the work injury and treatments not related, in that the evidence demonstrates that Dr. Stuckmeyer did make such a distinction.

For the reasons explained below, we modify the award of the administrative law judge on the issue of employee's average weekly wage and resulting rate of compensation for permanent partial disability benefits.

Injury No.: 14-073249

Employee: Gabrielle Graham

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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.

Citing § 287.250.1(4) as the controlling statutory provision for determining employee's average weekly wage, the administrative law judge calculated employee's average hourly rate based on employer/insurer's wage statement showing employee's pay for the thirteen full pay periods prior to her July 15, 2014, injury. The administrative law judge excluded the pay period ending June 21, 2014, from her calculation because that period represented a time when employee was absent from work a significant amount of time. No party disputes the administrative law judge's calculation of employee's average hourly wage rate as $10.83.

The administrative law judge then found "Consistent with Claimant's testimony and all other evidence in this claim Claimant never worked 80 hours over a two-week term and

Injury No.: 14-073249

Employee: Gabrielle Graham

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was clearly a part-time employee."1 Based on this finding the administrative law judge applied § 287.250.3 to calculate employee's average weekly wage. Noting that § 287.250.3 requires the use of at least thirty hours per week when determining the average weekly wage of a part-time employee, the administrative law judge concluded, "As the Court determined the Claimant's hourly rate to be 10.83, using the 30 hour rule, Claimant's average weekly wage is 324.90 resulting in a compensation rate of $216.60 for purposes of determining permanent partial disability."2

Employee testified that employer hired her as a part-time Certified Nursing Assistant (CNA) and that she worked between twenty and forty hours per week. She further testified that full-time CNAs worked forty hours per week. Employee's hearing testimony regarding the number of hours worked per week by full-time CNAs was uncontroverted.

We agree § 287.250.3 governs employee's average weekly wage, because employee was a part-time worker. However, we find no case law that supports the administrative law judge's apparent assumption that calculation of a part-time employee's average weekly wage under this provision, colloquially known as the "thirty-hour rule," must be limited to thirty hours. Such an interpretation is inconsistent with the plain language of the statute, which clearly states, "[S]uch computation shall not be based on less than thirty hours per week [emphasis added]."

In *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W.2d 105 (Mo. Banc, 1989), in construing an earlier and substantially differently worded version of § 287.250, the court stated:

> The court of appeals held that the claimant's compensation should be computed on a reduced basis because she was a part-time employee. Our cases consistently hold that there is no distinction between full-time and part-time employees and that all injured employees are to be compensated on the basis of annualized earnings, in accordance with one of the subdivisions of § 287.250.

The court of appeals observed that, under the commission's award, this claimant stands to receive substantially more in compensation than she would have received in earnings had she not been injured. This concern is misplaced. The workers' compensation laws provide a substitute for the common law action which an employee might otherwise maintain against an employer. Workers' compensation is designed to provide compensation for loss of earning capacity, which is a proper element of common law damages and is allowable without regard to the time worked in the past, prospects for future employment, or plans for working in the future. If part time employees were relegated to reduced compensation they would not be made whole for their loss. *Id.* at 109.

1 Award, p. 8.

2 *Id.*

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Injury No.: 14-073249

Employee: Gabrielle Graham

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Consistent with the public policy expressed in *Martin, supra*, encouraging equitable compensation rates for part and full-time employees, and the absence of any authority that expressly restricts calculation of a part-time employee's weekly wage to thirty hours per week, we find that a fair and just computation of employee's average weekly wage in this case should be based on the forty-hour work week of a full-time CNA.

Based on an average weekly wage of $433.20, pursuant to § 287.190.5(5), employee's compensation rate is $288.80 for purposes of determining permanent partial disability. Based on 10% of the body as a whole, employee is entitled to forty weeks of compensation. We modify the administrative law judge's award to allow employee 11,552.00 (288.80 X 40) for permanent partial disability benefits.

The administrative law judge's findings relating to the issue of past medical state, in part:

> If the employee provides notice to the employer of his or her need for medical treatment and obtains medical treatment on his or her own and later demands reimbursement, the burden shifts to the employer to establish that the medical treatment was unreasonable or unfair. The burden is upon Employer to establish that the unauthorized medical treatment Claimant sought was not reasonably related to cure and relive [sic] the effect of her work injury.³

We supplement the above findings in the administrative law judge's award to clarify that, even if an employer refuses to provide treatment to cure and relieve the effects of an employee's work injury, as required by § 287.140, employee must still establish a right to reimbursement for claimed medical expenses by producing (1) the medical bills, (2) the medical records reflecting treatment giving rise to the bill, and (3) testimony establishing that the treatment flowed from the compensable injury.⁴

Employer/insurer's expert, occupational physician Dr. Chris Fevurly concurred with the opinion of employer's authorized treating physician Dr. Atul Patel that as of April 16, 2015, employee was able to return to work without restrictions and had reached maximum medical improvement. Dr. Fevurly testified that employer's authorized medical treatment from the date of employee's July 15, 2014, injury until April 16, 2015, was much longer than the six to eight week time period normally required for a person to recover from an injury similar to employee's, or even shorter for someone of employee's age (employee was twenty-eight years old as of the March 28, 2019, hearing).

The administrative law judge discredited employee's medical expert, orthopedic surgeon, Dr. James Stuckmeyer, on the issue of reasonableness of medical treatment employee sought on her own after Dr. Patel's April 16, 2015, release. The administrative law judge found "Dr. Stuckmeyer's testimony related to the unauthorized

3 Award, p. 9.

4 *Martin v. Mid-Am. Farm Lines, Inc.*, 769 S.W.2d 105, 111-12 (Mo. banc 1989).

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Injury No.: 14-073249

Employee: Gabrielle Graham

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medical treatment [was] less credible [than employer's expert] because he makes no distinction between treatments related to the work injury and those unrelated medical treatments and billings. Her award implies that Dr. Stuckmeyer's deposition testimony regarding employee's past medical bills was inconsistent with his September 6, 2017, independent medical examination report which stated that "all of the medical treatment and medical billings related to the patient's ongoing symptoms and pain and dysfunction in the cervical spine, thoracic spine, and lumbar spine were reasonable, usual and customary, and the prevailing factor for the medical billings would be the work place injury occurring on July 15, 2014 (emphasis added)."

Dr. Stuckmeyer's December 11, 2017, deposition included the following exchange between employee's attorney and Dr. Stuckmeyer:

Q. "Are the medical