Commission finds "exception" to apply higher compensation rate.
This case involves a fight over the correct rate when claimant was a part-time employee and off work about 2 years following an accident. Holmes v City of Farmington, 2015 MO WCLR Lexis 85.
The Commission invokes 287.250.4 "escape clause" that it could exercise broad discretion in order to compute rate if the statutory formula how to produce it ended up with an unfair or unjust result. The employer contended that claimant's compensation rate was limited to the statutory minimum or $40 a week. The ALJ found a rate of $464.76, which the Commission affirmed for different reasons. Claimant was "on-call" to fill in more missing firefighters, but had worked sporadically prior to the accident which would have resulted in what the commission describes as a "paltry" rate if the rate was computed normally using the prior 13 weeks.
The Commission construed exceptional facts to include the financial hardship claimant would face by applying the lower rate, by the long recovery period as a result of his injuries, and that the "risks" were indistinguishable by full time or part time work. The Commission reduced the duration of TTD and noted the claimant's expert had relied on inaccurate information. A dissent would have affirmed a longer period of TTD based on claimant's testimony and to reward him for being "stoic" and returning to work in pain even though he described the expert opinion on TTD as worthless.
ALJ Tilley
Atty: Seufert, McHugh
Expert: Cohen
Ambiguous days missed on wage statement
The Commission reduced claimant's compensation rate for PTD benefits about $130 a week when the ALJ excluded 2 weeks in his calculation of compensation rate from a stipulated wage statement. The commission found the absence of 13 days on the wage statement was ambiguous and the ALJ lacked evidence to assume the dates missed constituted regular or scheduled work days and improperly excluded the two weeks. The case awarded PTD Fund benefits to a a 55-year old who hurt his back nearly 11 year years ago lifting a trash can combined with profound pre-existing kidney disease. The Commission released its award almost two years after the ALJ's award in March 2011. Abdullah v Waste Management, 3-1-2013.
ALJ Gorman
Atty: Sandza, Toepke
Experts: Volarich, Gonzalez, England
Wage loss second job
The claimant failed to establish earnings from after hours work performing plumbing and furnace repairs for various households flowed from an employment relationship to trigger second job wage loss. Claimant sought to include additional earnings from 20 jobs but stated he lost his business and tax records. Chambers v DS&F Plumbing, DOLIR 6-8-10.
ALJ: Wilson (affirmed)
Teacher Rate
The Commission modified claimant's wage rate using the days actually worked and not the formula for wages "fixed by the year." Claimant was a special education teacher employed 187 days over two semesters, but elected payment over 12 months as part of an annual salary. The Commission noted strict construction did not prevent it from applying section 250.4, when none of the other methods of computing wage rate applied to produce a "fair and just" result.
Claimant lacerated her tendon while using a paper cutter. Judge Dierkes awarded a 50% award for the disability and 3 weeks disfigurement, related to a permanent droop, and open medical. The case is Brunner v Columbia Public School District, affirmed by the Commission on 5-20-09.
Last Injurious exposure date used
In McGhee v W.R. Grace & Co, 2009 MO WCLR Lexis 129, claimant alleges he developed asbestosis from handling insulation at W.R. Grace, a bankrupt company, more than 25 years earlier. Judge Mahon awarded PTD benefits, using the rate in 1973, when claimant last worked, relying upon Enyard, rather than the rate applicable in 2001 when claimant was diagnosed. The court of appeals found Enyard inapplicable becuase it was decided prior to 287.200 and used the date when claimant became diabled and not the date of last exposure. 312 S.W.3d 447 (Mo. App. 2010).
Per diem included for injured truck driver
Survivor benefits to a truck driver killed on the job increased based on per diem payments and the added payments were not “special expenses” excluded as compensation, according to Caldwell, dec. v Delta Express, 278 S.W.3d 251 (Mo. Ct. App. 3-19-09),1 affirming the Commission’s award of benefits.The claimant was paid based on mileage and provided a per diem but was not required to keep track of any receipts related to the per diem. The earlier leading per diem case Grimes v GAB Business Services, 988 S.W.2d 638 (Mo. App. 1999), found a per diem payment did not increase wage rate when claimant’s expenses always exceeded the per diem due to lack of economic gain, but the court suggests that when reimbursement exceeded expenses such payments may represents economic gain to result in a higher compensation rate. Other special expenses incurred by Delta drivers required receipts. A driver testified that per diem payments made by Delta Express exceeded expenses and represented economic gain and that payments were made whether claimant slept in a motel or in a truck sleeper. The court raised the issue but declined to resolve whether evidence of economic gain is necessary for a claimant to obtain a high wage rate from per diem payments under strict construction as the economic gain concept discussed in Grimes is not present in the statute.
