William Haynes v. Hillis Dodge

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 15-040034

**Employee:** William Haynes

**Employer:** Hillis Dodge

**Insurer:** Employers Preferred Insurance Co.

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 was an employee of employer and working under the Workers' Compensation Act; (2) whether employee sustained an accident arising out of and in the course of employment as opposed to an idiopathic event that is not covered by the Workers' Compensation Law; (3) employee's average weekly wage and appropriate temporary total disability and permanent partial disability rates; (4) whether employee's injury was medically causally related to the accident or occupational disease; (5) whether employee is entitled to past medical expenses in the amount of $45,896.42; (6) whether employee is entitled to future medical care to cure and relieve the effects of the injury; (7) whether employee is entitled to temporary total disability benefits from April 22, 2015 through the date of maximum medical improvement; (8) when is the date of maximum medical improvement; and (9) what is the nature and extent of any permanent partial disability and disfigurement.

The administrative law judge determined as follows: (1) employee was an employee of employer and working under the Workers' Compensation Act; (2) employee sustained a work-related accident on April 22, 2015, that arose out of and in the course of his employment; (3) employee's average weekly wage was 225.00, the temporary total disability rate is 40.00 and the permanent partial disability rate is $150.00; (4) the accident was the prevailing factor in causing a facial laceration, a nasal and right orbital floor fracture, a concussion, and an L3 compression fracture; (5) employer is liable for past medical expenses in the amount of $45,196.42; (6) employer is liable for future medical care that is reasonably required to cure and relieve employee from the effects of the injury; (7) employer is not liable for temporary total disability benefits; (8) the date of maximum medical improvement is May 2, 2016; and (9) employee has sustained a 15% permanent partial disability of the body as a whole at the level of the lumbar spine, a 17.5% permanent partial disability of the body as a whole attributable to head injuries (post-concussive disorder, orbital fracture and right nasal fracture); and 10 weeks disfigurement for scarring on the right side of employee's nose and abrasions to employee's left arm. The administrative law judge ordered employer to pay employee a

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Injury No.: 15-040034

Employee: William Haynes

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total of 140 weeks of compensation at a rate of 150.00 per week for total of 21,000.00.

Employee filed an application for review asking 1) that employee's left foot and ankle injuries be deemed compensable; 2) that temporary total disability benefits be awarded from April 22, 2015 through May 2, 2016; 3) that employer pay for future medical for employee's dental bridgework; and 4) that the Commission change the permanent partial disability ratings to 40% permanent partial disability referable to the head, 25% permanent partial disability referable to the lumbar spine, and 50% permanent partial disability referable to the left ankle.

Employer filed an application for review challenging the findings: 1) that employee is an employee of employer; 2) that the accident arose out of and in the course of employment; 3) that employee's average weekly wage was $225.00; 4) that employer is liable for prior medical expenses; 5) that employer is liable for future medical care; 6) that the maximum medical improvement date was May 2, 2016; and (7) the permanent partial disability ratings.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of the employee's average weekly wage and the permanent partial disability rate.

**Discussion**

**Average Weekly Wage**

Section 287.190.5(2), RSMo, provides, "For all injuries occurring on or after September 28, 1981, the weekly compensation shall in no event be less than forty dollars per week."

In six numbered subdivisions, Section 287.250.1, RSMo, provides formulas for calculating "an injured employee's average weekly earnings which will serve as the basis for compensation provided for in [chapter 287]." Section 287.250.2, RSMo, provides instruction of other payment to include in determining one's average weekly wage, such as fringe benefits or forms of lodging. Section 287.250.3, RSMo, provides instructions for calculating the average weekly wage for part-time employees. Section 287.250.4, RSMo, provides a way to fairly and justly determine one's average weekly wage in the case that the other formulas do not apply.

Sections 287.250.1-.4, RSMo, provide:

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;

Injury No.: 15-040034

Employee: William Haynes

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(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

Injury No.: 15-040034

Employee: William Haynes

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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.

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.

1. 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.

In determining which formula to apply, you start with the first formula and then descend in numerical order until a formula is found that "applies to the particular facts of the case." *Adamson v. DTC Calhoun Trucking, Inc.*, 212 S.W.3d 207, 213, 215 (Mo. App. S.D. 2007) (internal quotations and citations omitted).

The provisions of Section 287.250.1, RSMo, do not readily apply in this matter as employee's wages were not computed by the week, month, year, or by "the day, hour, or by the output of the employee." The work to drive a truck to an auction was not a daily position, even for employer's other employees who handled local auction trips. Each trip was paid at $45.00, regardless of how much time it took to perform the work. Therefore employee's hourly wage cannot be ascertained and neither can an hourly wage be ascertained by using the compensation paid to other employees. Similarly, the provisions of Section 287.250.3, RSMo, do not apply.

The provisions of Section 287.250.2, RSMo, also do not apply as there were no other gratuities, fringe benefits, or the provision of board, rent, housing, or lodging.

Because the Commission cannot fairly or justly determine employee's average weekly wage based on the formulas provided in the provisions of Section 287.250.1-.3, RSMo, it is the opinion of the Commission based on what we so deem as exceptional facts that employee should receive the statutory minimum for weekly compensation of $40.00.

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Incidentally, employee's award of 140 weeks of compensation is charged to t