Juanita Kurbursky v. Independent In-Home Services, LLC

Injury No.: 12-062235 Employee: Juanita Kurbursky Employer: Independent In-Home Services, LLC Insurer: Commerce & Industry Insurance Company Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund On July 11, 2022, the Missouri Court of Appeals, Southern District, issued an opinion remanding the award of the Labor and Industrial Relations Commission (Commission). ${ }^{1}$

By mandate dated July 27, 2022, the Court confirmed its decision to reverse the Commission as to its calculation of permanent partial disability benefits, ${ }^{2}$ and to remand the case for the Commission to make factual findings on "the average weekly wage of a full-time or regular employee engaged by employer to perform work of the same or similar nature" and the number of hours required by employer to classify an employee as a "full-time or regular employee" and calculate its award based upon those findings.

On August 29, 2022, the Commission remanded this case back to the Division of Workers' Compensation for an administrative law judge to make factual findings consistent with the Court's opinion. ${ }^{3}$

Employee testified at the October 18, 2019 hearing that she worked between 20-25 hours per week for employer. ${ }^{4}$ At the September 29, 2022 remand hearing before the administrative law judge, the parties stipulated that a full-time worker at employer worked 40 hours per week. The parties further stipulated that employee was paid at an hourly rate of $\ 7.65, her average weekly wage was $\ 306.00, and that her compensation rate is $\$ 204.00 .{ }^{5}$

The administrative law judge did not make factual findings in regard to the stipulations of fact made by the parties. However, we note that "stipulations of fact are generally binding in Missouri." ${ }^{6}$

Pursuant to the express directive and mandate from the Court, we issue the following award.

[^0] [^0]: ${ }^{1} Kurbursky v. Indep. In-Home Servs., 648 S.W.3d 894 (Mo. App. 2022). { }^{2}$ The Southern District's mandate and footnote 8 of the Southern District's decision indicate that our award should be limited to a recalculation of permanent partial disability, and not temporary total disability. ${ }^{3}$ Section 287.610.5 RSMo provides, in pertinent part: "The labor and industrial relations commission may remand any decision of an administrative law judge for a more complete finding of facts." ${ }^{4} See October 18, 2019 Transcript at 37, 106. { }^{5} See September 29, 2022 transcript at 3-4. { }^{6}$ See Bull v. Excel Corp 985 S.W.2d 411, 415, 417 (Mo. App. W.D. 1999) (Internal citations omitted). "Although stipulations are controlling and conclusive and courts are bound to enforce them, they are to be viewed with an eye toward what they were designed to accomplish. Also, a stipulation may not be invoked to fix a conclusion of law." Id.

Our prior award and decision of April 7, 2021, is hereby modified as to the issue of permanent partial disability liability.

We find that a full-time worker at employer worked 40 hours per week, and that employee's hourly rate was $\ 7.65. Pursuant to $\S 287.250 .3,{ }^{7} we also find that employee's average weekly wage is \ 306.00 and her compensation rate is $\ 204.00.

At a permanent partial disability rate of $\mathbf{\$ 2 0 4 . 0 0}, employer is liable to employee in the amount of \ 16,320.00 for 80 weeks of permanent partial disability benefits.

The Second Injury Fund is liable for $\ 9,424.80 in enhanced permanent partial disability benefits.

For necessary legal services rendered to employee, attorney Ronald Edelman, is allowed a fee of 25 % of the compensation awarded, which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }}$ day of February 2023.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Rodney J. Campbell, Chairman

Shalonn K. Curls

Shalonn K. Curls, Member

Kuthryn Sarnan, Member

Attest:

Secretary

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[^0]: ${ }^{7} \S 287.250 .3$ RSMo provides, in relevant part:

3. 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.

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 preexisti