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Neal v. Hy-Vee12/24/2003
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Counsel for the employee was informed that the employee's telephone connection had been faulty and that the employee had not heard the discussion. Counsel then summarized for his client what had been presented at the regular hearing including information that the average weekly wage had been discussed and that matter still remained an issue. At that point, both parties were aware that all the information that was to be presented on the average weekly wage was in the record. The parties appeared by counsel, and the employee appeared by telephone albeit through a faulty connection. The employee's deposition was added to the record. Dr. Zimmerman's deposition was subsequently entered. Neither party added to the record during the regular hearing.
The matter of the employee's failure to appear for the examination at Dr. Poppa's office in Kansas City by reason of his incarceration on unrelated felony convictions was taken up at a preliminary hearing by the ALJ on June 17, 1999. The parties appeared by and through counsel and argued their respective positions, and this issue as well as the entire case was complete and ready for a decision by the ALJ.
On October 27, 1999, the ALJ's decision and award was entered by written decision on all issues. With regard to average weekly wage, the ALJ based upon the record concluded:
"The admission that claimant was paid three weeks of temporary total disability totaling $983.12 suggest that the average weekly benefit paid was $327.71, slightly exceeding the $326.00 maximum at the time, and indicates an average weekly wage of $451.57 which matches claimant's assertion at the prehearing settlement conference."
The ALJ further concluded:
"The claimant is entitled to 3 weeks temporary total disability at the rate of $326.00 per week or $978.00 followed by 33.20 weeks at $326.00 a week or $10,823.20 for a 8 % permanent partial general body disability making a total award of $11,801.20. As of 12/29/98, there would be due and owing to the claimant the entire sum awarded."
We note that there was some evidence in the record concerning the employee's average weekly wage. The employer, throughout the time leading to the regular hearing, was concerned with obtaining the suspension of the employee's claim by reason of his failure to appear for an examination scheduled in Kansas City. Yet, in the regular hearing, evidence was presented, albeit hearsay evidence, concerning the employee's average weekly wage. The employer did not offer any evidence at the regular hearing concerning the average weekly wage except to agree that the matter was still in issue. The employer did not cross-examine the employee upon any of the figures presented by counsel and the employee concerning the average weekly wage.
K.A.R. 51-3-8(c) provides:
"(c) The respondent shall be prepared to admit any and all facts that the respondent cannot justifiably deny and to have payrolls available in proper form to answer any questions that might arise as to the average weekly wage. Evidence shall be confined to the matters actually ascertained to be in dispute. The administrative law judge shall not be bound by rules of civil procedure or evidence. Hearsay evidence may be admissible unless irrelevant or redundant."
In its first appeal to the Board, the employer complained that the employee failed in the regular hearing to establish an essential element of his claim--his average weekly wage. It is difficult to credit the employer's argument given its failure to question the employee's contention and hearsay evidence concerning this issue. Given the presence of the employee at the regular hearing, the
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