Juanita Kurbursky v. Independent In-Home Services, LLC

week, from August 21, 2012 through September 10, 2012, for a total of $\ 306.00. Employee was therefore entitled to additional temporary total disability based upon a weekly compensation rate of $\$ 204.00 .{ }^{1}$

The administrative law judge determined that employee was 20\% permanently partially disabled (PPD) to the body as a whole (this rating includes 10\% PPD for the cervical and thoracic spine, plus 10\% PPD at the lumbar spine). Employee was not permanently and totally disabled. Employee's maximum medical improvement date was September 10, 2012, the date that she was placed at maximum medical improvement by Dr. James Jordan. The administrative law judge further determined that the Second Injury Fund was not liable because employee was not PPD or permanently totally disabled, and was still able to compete in the labor market.

Employee and employer filed timely applications for review. Employee's application for review challenged the administrative law judge's determination on the issues of past and future medical expenses, Second Injury Fund liability, and the credibility of the medical experts.

Employer's application for review challenged the administrative law judge's determination on the issues of employee's average weekly wage, the applicable weekly compensation rate, and the use of that rate in the calculation of employee's temporary total disability benefits.

For the reasons stated below, we modify the award of the administrative law judge on the issues of: (1) employee's weekly compensation rate; (2) temporary total disability benefits; and (3) Second Injury Fund liability.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact as to the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications herein.

Employee was a home health care worker at employer. She worked at employer for 20 to 25 hours per week, and she was deemed to be a part-time employee. Employee described the August 15, 2012 primary injury by stating that she was carrying bags and struck her head on a canoe that was on top of a car. Employee earned $\ 7.65 per hour at employer, and worked 20 to 25 hours per week. Employee testified that there were

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[^0]: ${ }^{1} An hourly rate of \ 7.65 multiplied by a 40 -hour week, multiplied by $2 / 3$.

about three other employees performing this same job in a fulltime capacity. Employee specifically named Pamela Chapman as one of the employees that worked 40 hoursplus per week. Employer paid employee temporary total disability benefits in the amount of $\ 102.00 per week for the period of August 21, 2012 through September 10, 2012, for a total of $\ 306.00.

(1) In 1971, at age 12, employee suffered torn cartilage in her right knee. She was squatting when her knee locked up. This right knee injury slowed her down in later jobs.

(2) In 1975, when she was about 16 years old, employee had a left knee sprain.

(3) In 2001, employee had a left ankle sprain. She was at her sister's home when she twisted her ankle and fell to the ground. This injury was aggravated by standing and walking.

(4) In 2011, employee was diagnosed with right foot plantar fasciitis with a heel spur and a bone contusion.

(5) In 2011, employee was diagnosed with right carpal tunnel syndrome, and employee is right-hand dominant. She later underwent carpal tunnel release surgery. This surgery occurred after the August 15, 2012 primary injury, but before employee's examination by Dr. Robert Poetz.

(6) Employee was diagnosed with degenerative disc disease in her neck before the August 15, 2012 primary injury.

Dr. Poetz opined that employee is permanently and totally disabled from the combination of the August 15, 2012 primary injury and her pre-existing conditions. He further opined that employee has been permanently and totally disabled since the August 15, 2012 primary injury, and that she will remain permanently and totally unemployable in the open labor market.

Dr. Poetz diagnosed employee with the following due to her preexisting disabilities: 1) 5 % PPD to the body as a whole at the cervical spine due to degenerative disc disease (400 week level); 2) 20\% PPD at the right knee (1971) (160 week level); 3) 15\% PPD due to a left knee sprain in 1975 (160 week level); 4) 15\% PPD due to a left ankle sprain in 2001 (155 week level); 5) 15\% PPD at the right foot due to employee's 2011 foot plantar fasciitis with heel spur and bone contusion (150 week level); and 6) 30\% PPD at the right wrist ( 175 week level), due to right carpal tunnel syndrome diagnosed in 2011.

At Dr. Poetz's deposition and in his February 10, 2014 report regarding employee's primary and preexisting injuries, he opined that employee's present and prior disabilities results in a total which exceeds the simple sum by 20 %. Dr. Poetz stated that there is a relationship between the lower extremities and the lumbar spine, and that if the knees

were compromised, then a greater strain would be placed on the lumbar spine. Dr. Poetz stated that there is a relationship between the foot, ankle and the lumbar spine, and that an individual with ongoing foot and ankle complaints will alter their gait to compensate for their foot and ankle problems, which can cause pain in the lower back. Dr. Poetz also opined that there is relationship between the upper extremity and the neck and upper back, and that if a patient were to perform an assembly position, that person would be required to view what they are assembling, whether it is looking down, side to side, or overhead. If this job is performed consistently, a greater strain would be placed on a person's neck and upper back.

We find Dr. Poetz's PPD ratings, and his opinions on the relationship between employee's primary and preexisting injuries to be persuasive. However, we do not find Dr. Poetz's opinion on permanent total disability liability to be persuasive. We find that the effects of the primary injury interact with the effects of employee's preexisting disabilities affecting to produce a greater disability than the simple sum of disability referable to those conditions. Furthermore, we find that a 20 % multiplicity factor is appropriate to account for this synergistic interaction.

We adopt and affirm the administrative law judge's conclusions on the issues of whether employee's August 15, 2012 primary injury was a compensable injury, past and future medical care, the nature and extent of employee's disability, and employee's maximum medical improvement date.

§ 287.250.3 RSMo provides, in relevant part:

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.

The administrative law judge determined that employer did not dispute employee's evidence regarding her $\ 7.65 hourly rate, or the rate and the number of hours worked by her coworkers. However, we find that the basis for the calculation of employee's average weekly wage comes from employee's own testimony at the hearing before the administrative law judge, when she testified that she only worked about 20-25 hours per week. Section 287.800 RSMo requires us to strictly construe workers' compensation statutes. If the Missouri legislature simply wanted us to calculate part-time employees at a rate of a full-time worker at 40 hours, then the legislature could have directed us to do so. However, the current wording of the statute does not state that, and the current

Approach taken by the Commission makes the most sense based on the statute as it is currently written. Based on that, we use a 30 hour work week, since, under $\S 287.250$, it represents the closest to the actual amount of hours worked by employee per week that is allowed under that statute.

Therefore, we calculate employee's average weekly wage using a 30 hour work week, instead of the 40 hour work week that the administrative law judge used for his calculation. We find that employee's average weekly wage is $\$ 229.50 .{ }^{2}$ Additionally we find that employee's weekly compensation rate for temporary total disability is $\$ 153.00 .{ }^{3}$

The parties did not dispute whether employee was entitled to temporary total disability benefits, but rather the proper rate of compensation for same. As stated above, we have found that employee's average weekly wage was improperly calculated by the administrative law judge based upon a 4