The employer paid claimant benefits based on her salary as a teacher, but then claimed a statutory minimum rate applied under "strict construction" because at the time of the accident claimant worked atypical duties at a ticket gate for a school-sponsored football game. The Commission unanimously affirmed the decision rejecting the defense, finding it had "no merit" and there was no authority whatsoever asserted for the proposition to apply different rates based on segregated job duties.
The employer had stipulated the employee was covered, but later apparently questioned in a brief if claimant was excluded as a contest worker under 287.090.1(5). The administrative law judge found no basis to argue exemption as claimant was otherwise employed by the sponsoring school
The administrative law judge further found the employer had underpaid wages by calculating the rate over 52 weeks, instead of using a 9-month employment calendar. The 62-year claimant received an award of 17 1/2% disability for a fracture of the right humerus. The statute allowed discretionary award of disfigurement for a scar of the "arm" but not the "armpit." Lunn v Montgomery County R-2 School District, DOLIR 9-1-10.
Experts: Poetz, Oliver