No. 14-058646 (Mo. Lab. & Indust. Rel. Comm’n March
13, 2017)
Full Opinion: [Hembree v. John Jamison & Co., LLC]
Code(s): C027 Wage/Compensation Rate Issue
Factual
Background:
Claimant
was absent 7 days during the 13 weeks prior to his injury that is used to
calculate the rate of compensation. Employer admitted that these absences were
because employee showed up every scheduled workday, but was sent home without
pay due to lack of work.
ALJ Decision:
According
to Section 287.250.1(4), “[f]or purposes of computing the average weekly wage
pursuant to this subdivision, absence of five regular or scheduled work days,
even if not in the same calendar week, shall be considered as absence for a
calendar week.” The ALJ found these absences to count under this section, and
therefore divided employee’s 13-week gross earnings by 12 to compute the AWW.
Analysis/Holding:
Employer
argued that the “absences” in the above-stated section should only refer to
absences that are the due to an employee’s failure to report for work. The
Commission found this unpersuasive. According to Section 287.800.1 RSMo, the
language of Section 287.250.1(4) must be strictly construed. The Commission
found, strictly construing the language of Section 287.250.1(4), that when an
employee arrives for work, but the employer does not make any work available,
and send the employee home without pay, this is unquestionably an “absence.”
Further, this was a “fair and just” calculation per Section 287.250.4 RSMo.
The Takeaway:
If
an employee shows up for work, but an employer sends him home due to lack of
work, it does count as an “absence” per Section 287.250.1(4) RSMo and should be
counted against him/her for the AWW calculation.