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By stan_sipple

Injured Employee's average weekly wage calculated at his certain hourly rate and not on the prevailing wages for workers doing similar work rules the Missouri court of appeals, Southern district in the worker's appeal against the Second Injury Fund. David Murphy, Claimant/Appellant v. Barbeque Wood Flavors, Inc., and Treasurer of the State of Missouri, Custodian, Second Injury Fund, Respondents. Case Number: 28466 Handdown Date: 02/07/2008 Appeal From: Labor and Industrial Relations Commission. Employee started work for wood products firm as a factory worker and an on-call maintenance man. The wage was to be $9.00 but with overtime expected. The worker was injured on his third day of work and in his case against the second injury fund cited 287.250.1(5) to claim the prevailing wage as his average weekly wage. The commission affirmed the hearing officer's ruling that the employee would receive benefits based on $9.00 per hour. Missouri Court of Appeals affirms, finding the $9.00 hourly wage was "certain" and therefore the finding at the hearing was correct.
Section 287.250.1(5) applies when the claimant has been "employed less than two calendar weeks immediately preceding the injury." Claimant argues that 287.250.1(5) requires his average weekly wage to be, as stated in the first part of Section 287.250.1(5), "the average weekly wage prevailing in the same or similar employment at the time of the injury." Section 287.250.1(5), however, provides an exception to establishing the average weekly wage in that manner. The last part of that paragraph states that this method for determining average weekly wage does not apply "if the employer has agreed to a certain hourly wage." In that circumstance, the agreed hourly wage is used in determining the "average weekly wage" for purposes of ascertaining benefits to which an injured employee (who was employed less than two calendar weeks) is entitled to receive. The commission found that there had been an agreed wage in the amount of $9.00 per hour. That determination is supported by competent and substantial evidence. Had there been an established weekly number of hours claimant was to work, Section 287.250.1(5) would have required those hours to be multiplied by the agreed hourly wage to establish the average weekly wage for determination of worker's compensation benefits. The commission found, however, that "the parties did not establish a specific or defined work schedule." For that reason, it found that Section 287.250.1(5) was not applicable. That determination is supported by competent and substantial evidence on the basis of the whole record that was before the commission. The commission determined the worker's average weekly wage under Section 287.250.4, based upon the exceptional facts presented, and fairly determined such employee's average weekly wage. The commission's award was supported by competent and substantial evidence. The applicable provision for determining claimant's average weekly earnings is Section 287.250.4.

Full post as published by Showmeblawgs on February 09, 2008 (boomark / email).