Hillyard v. Hutter Oil Co.

978 S.W.2d 75, 1998 Mo. App. LEXIS 1947, 1998 WL 748422
CourtMissouri Court of Appeals
DecidedOctober 28, 1998
DocketNo. 22260
StatusPublished
Cited by6 cases

This text of 978 S.W.2d 75 (Hillyard v. Hutter Oil Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hillyard v. Hutter Oil Co., 978 S.W.2d 75, 1998 Mo. App. LEXIS 1947, 1998 WL 748422 (Mo. Ct. App. 1998).

Opinion

SHRUM, Presiding Judge.

This is a workers’ compensation case that presents one issue: Does § 287.250.8 (which defines “average weekly wage” for employees having dual employment) enhance the average weekly rate used in calculating the permanent partial disability award for Richard Hillyard (Employee)? The Labor and Industrial Relations Commission (the Commission) answered yes.1

Hutter Oil Company (Employer), the party adversely affected by the Commission’s ruling, appeals. We affirm.

FACTS

On February 6, 1995, Employee was shot while working for Employer at one of its “deli” stores. Employee sustained permanent partial disability as a result of this incident. The parties agreed that Employee’s permanent partial disability was 176 weeks based on the percent of disability assigned to the injured parts of his body.

Employee held two jobs at the time he was injured, one with Employer and another with Midwest Trailers (Midwest). His average weekly wage with Employer was $181.57. At Midwest, he made $240 per week. Employee adduced uncontroverted evidence that the disabling effect of the injury to his left arm kept him from going back to work at Midwest.

An administrative Law Judge (ALJ) ruled that because of § 287.250.8, Employee’s average weekly wage had to be based on the total of his average weekly wage computed separately for each employer. Consequently, Employer owed Employee permanent partial disability benefits based on the maximum rate of $249.48 per week. The ALJ awarded Employee $48,908.48 as his total permanent partial disability benefit ($249.48 x 176 weeks).

Employer sought the Commission’s review of the ALJ’s decision. The Commission af[77]*77firmed and, in the process, adopted the ALJ’s award and decision by reference. Employer appeals from the Commission’s award.

DISCUSSION AND DECISION

In 1998, the Missouri legislature did a major overhaul of Chapter 287, “The Workers’ Compensation Law.” Until then, Chapter 287 made no special provisions for employees who had multiple or concurrent employers. Thus, even when an employee had more than one job, the only employer liable was the one for whom the employee was working when injured. See Glazebrook v. Hazelwood Sch. Dist., 498 S.W.2d 828, 827[6] (Mo.App.1973). The wage base and compensation rate for such an employee was based solely on what he earned on the job where the injury occurred. Id. at 826-29.

Among the forty-four new sections of The Workers’ Compensation Law enacted in 1993, two have paragraphs that mention concurrent or multiple employers. The first, § 287.220.9, has a sunset clause effective August 28, 1996. In its entirety, § 287.220.9 provides:

“9. Any employee who at the time a com-pensable work-related injury is sustained is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer’s employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according to subsection 8 of section 287.250. The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of the injury. The employer for whom the employee was working where the injury was sustained shall be responsible for all medical costs incurred in regard to that injury. The provisions of this subsection shall expire on August 28,1996.”

The second mention of multiple employers in the 1993 enactment is in § 287.250.8, the section referenced in § 287.220.9. In its entirety, § 287.250.8 provides:

“8. For an employee with multiple employments, the employee’s total average weekly wage shall be equal to the sum of the total average weekly wage computed separately for each employment pursuant to the provisions of this section to which the employee is unable to return because of his injury.” (emphasis supplied).

Employer’s only point relied on charges that the Commission erred when it ruled that the “multiple employments” formula in § 287.250.8 should be used when calculating the total permanent partial disability benefit owed to Employee. Employer argues that the “multiple employments” calculation of “average weekly wage,” as prescribed in § 287.250.8, has limited application. Specifically, Employer asserts:

“The only clear purpose for [§ 287.250.8] is to provide the method for compensation computation in conjunction with the Second Injury Fund liability for wage loss benefits pursuant to [§ ] 287.220.9. Therefore, [§ ] 287.250.8 is simply the means of calculating temporary total disability benefits for determining the extent of the Second Injury Fund liability under [§ ] 287.220.9.”

With the foregoing as its premise, Employer insists that the Commission should have based Employee’s permanent partial disability award on his weekly earnings from Employer, i.e., $181.57, rather than the maximum figure of $240 per week that resulted under the “multiple employments” calculation found in § 287.250.8.

We undertake our analysis of Employer’s point with these principles in mind. Provisions of The Workers’ Compensation Law are “liberally construed with a view to the public welfare.” § 287.200. See Sanders v. St. Clair Corp., 943 S.W.2d 12, 17 (Mo.App.1997); Glazebrook, 498 S.W.2d at 826. “All [78]*78doubts should be resolved in favor of the employee and this rule is applicable ... in the computation of the wage base.” Glazebrook, 498 S.W.2d at 826[4]. On the other hand, the rule of liberal construction does not authorize the allowance of a claim that lacks an essential element required by the law. Sanders, 943 S.W.2d at 17[9].

In matters of statutory construction, the intent of the legislature controls. O’Flaherty v. State Tax Comm’n of Mo., 680 S.W.2d 158, 155[3] (Mo.banc 1984). The only subordinate cannons of construction that should be used are those which “subserve rather than subvert legislative intent.” Tribune Publ’g Co. v. Curators of Univ. of Mo., 661 S.W.2d 575, 583[4] (Mo.App.1983). Also, courts assume that all laws are passed with a view to the welfare of the community at large. Cohen v. Poelker, 520 S.W.2d 50, 52 (Mo.banc 1975).

Here, Employer argues, inter alia, that if

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Bluebook (online)
978 S.W.2d 75, 1998 Mo. App. LEXIS 1947, 1998 WL 748422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillyard-v-hutter-oil-co-moctapp-1998.