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When there is no other evidence on the issue of rate, the statutory minimum rate of $40 a week applies. The claimant has the burden to prove rate. Boilerplate pleading asserting the "maximum" rate on a claim did not entitle claimant to the statutory maximum rate, even when the employer was late filing an answer because "maximum" rate is not a "fact" which is deemed admitted by a late answer.
Claimant, a 27-year old car hop, was sexually assaulted by a co-worker and alleges she was totally disabled due to depression and PTSD. The employer disputed any attack occurred and did not file a report of injury or answer the claim timely and presented expert opinion that any psychological disability flowed from pre-existing conditions. The ALJ found accident, awarded 1 1/2 years in TTD benefits, 45% PPD and awarded open medical benefits. She noted claimant reported difficulty working in jobs with men but left subsequent employment for reasons unrelated to any work-related injuries. The male co-worker had a history of sex crimes pre-dating the assault, according to the findings.
"We are sensitive to the fact that this employee suffered a horrible trauma at work, and we wish to make clear that her genuine inability to recall details from that time period, such as her average weekly wage in the thirteen weeks before the accident, does not strike us as unexpected or blameworthy in the least. But the task of proving an average weekly wage was by no means rendered impossible simply because employee was unable to remember what she earned while working for employer."
As a result of applying the statutory minimum rate, the Commission reduced claimant's award from $67,779 to $7,200. The Commission noted claimant did not offer any evidence regarding compensation rate and objected when the employer offered a wage statement. The implication is the only reason to object is that the wage statement would have supported a rate lower than the maximum rate alleged on the claim form. Even though claimant may over-state earnings on a claim for compensation, the employer is bound by a dollar rate pled when the answer is late. Hasten v Sonic Drive In, 2012 Mo WCLR Lexis 102 (May 2, 2012).
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.
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