Thursday, March 9, 2017

Commission affirms 30 hour rule for part-time employee as "fair" resolution under 287.250.4

Johnson v RPCS dba Price Chopper
2017 MOWCLR Lexis 23 (March 3, 2017) (House)

Claimant was killed in a 2015 motor vehicle accident.  The issues in dispute were if he died as a result of accident arising out of his employment and the applicable compensation rate.

Claimant had retired and worked as a part-time floater meat cutter and at the time of the accident he was returning from a Kansas store to his home in Missouri.  The ALJ found that claimant was not traveling from the employer's principal place of business (it had 48 locations) and the accident arose out of his employment, relying upon  Harness v Southern Copyroll, Inc., 291 S.W.3d 299 (Mo. App. 2009).

The employer argued rate should be based on 30-hour rule as a part-time employee rather than 52 weeks.  No evidence was offered of any regular or full-time employee.  The ALJ employed his hourly rate when he was full-time to a 30 hour schedule.

Clamant appealed and argued:   

"that employee's work as a part-time floating meat cutter was "of the same or similar nature" as employee's prior work as a full-time meat market manager, and thus evidence of employee's own prior average weekly wage is sufficient for purposes of  287.250.3."

The commission affirmed the calculation by the ALJ based on the 30 hour rule at the former hourly full-time rate  as "fair" based on 287.250.4 and indicated that calculation under 287.250.3 was debatable.

"The 30-hour statutory minimum does not operate to cure gaps in the claimant's evidence, or to establish a de-facto 30-hour week wherever the evidence shows an injured employee was working part-time. There is no evidence on this record to establish "the number of hours per week required by the employer to classify [an] employee as a full-time or regular employee. " Consequently, there would appear to be no basis  for referring to or applying the 30-hour minimum, as there is no evidence that employer attempted to classify meat cutters working less than 30 hours per week as "full-time or regular" employees"

The employer did not appeal calculation using 30 hours although the claimant's part-time schedule was usually at 22 hours.