287.250. Compensation, computation of--average weekly wage, division or commission may determine, when--additional compensation for persons under twenty-one, when--multiple employers, computation of c - Missouri Statutes

Compensation, computation of--average weekly wage, division orcommission may determine, when--additional compensation forpersons under twenty-one, when--multiple employers, computationof coverage--weekly wage--compromise settlement.

287.250. 1. Except as otherwise provided for in this chapter, themethod of computing an injured employee's average weekly earnings whichwill serve as the basis for compensation provided for in this chapter shallbe as follows:

(1) If the wages are fixed by the week, the amount so fixed shall bethe average weekly wage;

(2) If the wages are fixed by the month, the average weekly wageshall be the monthly wage so fixed multiplied by twelve and divided byfifty-two;

(3) If the wages are fixed by the year, the average weekly wage shallbe the yearly wage fixed divided by fifty-two;

(4) If the wages were fixed by the day, hour, or by the output of theemployee, the average weekly wage shall be computed by dividing by thirteenthe wages earned while actually employed by the employer in each of thelast thirteen calendar weeks immediately preceding the week in which theemployee was injured or if actually employed by the employer for less thanthirteen weeks, by the number of calendar weeks, or any portion of a week,during which the employee was actually employed by the employer. Forpurposes of computing the average weekly wage pursuant to this subdivision,absence of five regular or scheduled work days, even if not in the samecalendar week, shall be considered as absence for a calendar week. If theemployee commenced employment on a day other than the beginning of acalendar week, such calendar week and the wages earned during such weekshall be excluded in computing the average weekly wage pursuant to thissubdivision;

(5) If the employee has been employed less than two calendar weeksimmediately preceding the injury, the employee's weekly wage shall beconsidered to be equivalent to the average weekly wage prevailing in thesame or similar employment at the time of the injury, except if theemployer has agreed to a certain hourly wage, then the hourly wage agreedupon multiplied by the number of weekly hours scheduled shall be theemployee's average weekly wage;

(6) If the hourly wage has not been fixed or cannot be ascertained,or the employee earned no wage, the wage for the purpose of calculatingcompensation shall be taken to be the usual wage for similar services wheresuch services are rendered by paid employees of the employer or any otheremployer;

(7) In computing the average weekly wage pursuant to subdivisions (1)to (6) of this subsection, an employee shall be considered to have beenactually employed for only those weeks in which labor is actually performedby the employee for the employer and wages are actually paid by theemployer as compensation for such labor.

2. For purposes of this section, the term "gross wages" includes, inaddition to money payments for services rendered, the reasonable value ofboard, rent, housing, lodging or similar advance received from theemployer, except if such benefits continue to be provided during the periodof the disability, then the value of such benefits shall not be consideredin calculating the average weekly wage of the employee. The term "wages",as used in this section, includes the value of any gratuities received inthe course of employment from persons other than the employer to the extentthat such gratuities are reported for income tax purposes. "Wages", asused in this section, does not include fringe benefits such as retirement,pension, health and welfare, life insurance, training, Social Security orother employee or dependent benefit plan furnished by the employer for thebenefit of the employee. Any wages paid to helpers or any money paid bythe employer to the employee to cover any special expenses incurred by theemployee because of the nature of his employment shall not be included inwages.

3. If an employee is hired by the employer for less than the numberof hours per week needed to be classified as a full-time or regularemployee, benefits computed for purposes of this chapter for permanentpartial disability, permanent total disability and death benefits shall bebased upon the average weekly wage of a full-time or regular employeeengaged by the employer to perform work of the same or similar nature andat the number of hours per week required by the employer to classify theemployee as a full-time or regular employee, but such computation shall notbe based on less than thirty hours per week.

4. If pursuant to this section the average weekly wage cannot fairlyand justly be determined by the formulas provided in subsections 1 to 3 ofthis section, the division or the commission may determine the averageweekly wage in such manner and by such method as, in the opinion of thedivision or the commission, based upon the exceptional facts presented,fairly determine such employee's average weekly wage.

5. In computing the compensation to be paid to an employee, who,before the injury for which the employee claims compensation, was disabledand drawing compensation under the provisions of this chapter, thecompensation for each subsequent injury shall be apportioned according tothe proportion of incapacity and disability caused by the respectiveinjuries which the employee may have suffered.

6. For purposes of establishing a rate of compensation applicableonly to permanent partial disability, permanent total disability and deathbenefits, pursuant to this chapter, the average weekly wage for an employeewho is under the age of twenty-one years shall be adjusted to take intoconsideration the increased earning power of such employee until she or heattains the age of twenty-one years and the average weekly wage for anemployee who is an apprentice or a trainee, and whose earnings wouldreasonably be expected to increase, shall be adjusted to reflect a level ofexpected increase, based upon completion of apprenticeship or traineeship,provided that such adjustment of the average weekly wage shall not considerexpected increase for a period occurring more than three years after thedate of the injury.

7. In all cases in which it is found by the division or thecommission that the employer knowingly employed a minor in violation of thechild labor laws of this state, a fifty percent additional compensationshall be allowed.

8. For an employee with multiple employments, as to the employee'sentitlement to any temporary total or temporary partial disability benefitsonly pursuant to subsection 9 of section 287.220, and for no otherpurposes, the employee's total average weekly wage shall be equal to thesum of the total of the average weekly wage computed separately for eachemployment pursuant to the provisions of this section to which the employeeis unable to return because of this injury.

9. The parties, by agreement and with approval of an administrativelaw judge, legal advisor or the commission, may enter into a compromiselump sum settlement in either permanent total or permanent partialdisability cases which prorates the lump sum settlement over the lifeexpectancy of the injured worker. When such an agreement has beenapproved, neither the weekly compensation rate paid throughout the case northe maximum statutory weekly rate applicable to the injury shall apply. Nocompensation rate shall exceed the maximum statutory weekly rate as of thedate of the injury. Instead, the prorated rate set forth in the approvedsettlement documents shall control and become the rate for that case. Thissection shall be retroactive in effect.

(RSMo 1939 § 3710, A.L. 1965 p. 397, A.L. 1981 H.B. 324, A.L. 1992 H.B. 975, A.L. 1993 S.B. 251, A.L. 1998 H.B. 1237, et al.)

Prior revision: 1929 § 3320

(1956) Pension paid by a former employer is not "earnings" or "gratuity" to be considered in computing the employee's annual earnings. Zasslow v. Service Blue Print Co. (A.), 288 S.W.2d 377.

(1958) Where employee had been hired at $1.50 per hour to trim trees over a roof to enable television antenna to be installed and was injured in fall shortly after commencing job, his compensation for total permanent disability was computed by applying the 200 days provision of subdivision (5) to daily wage of $12, since employer's custom was to employ extra help on basis of eight-hour day and the exact number of working days was not otherwise determinable. Noland v. George Tatum Mercantile Co. (Mo.), 313 S.W.2d 633.

(1962) Where the employee was not engaged in the employment of the same employer for the full year preceding the accident, subsection 3 is controlling, and it is immaterial that the deceased was drawing Social Security or may have actually earned less than earnings that would be established on the comparative method of computation. Cross v. Crabtree (A.), 364 S.W.2d 61.

(1963) Where claimant sustained injuries arising out of the course of his employment as volunteer fireman, his compensation was calculated under subdivision (5) since his particular employment was to operate for only a small part of the working days of each year. Baer v. City of Brookfield (A.), 366 S.W.2d 469.

(1973) Court refused to consider earnings from related part-time work for another employer in computing compensation under this section. Glazebrook v. Hazelwood School Dist. (A.), 498 S.W.2d 823.

(1987) Earnings of regularly employed fire department employee for neighboring town were not evidence of rate of compensation to which volunteer firefighter was entitled pursuant to this section following heart attack suffered while fighting fire. Johnson v. City of Duenweg Fore Dept., 735 S.W.2d 364 (Mo.banc).

(1993) Value of free meals worker regularly receives constitutes earnings in determining annual earnings for purposes of computing workers' compensation benefits. Betz v. Telegraph Investment, Inc., 844 S.W.2d 556 (Mo.App.E.D.).