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Neal v. Hy-Vee12/24/2003
employer's awareness that hearsay evidence of the employee's average weekly wage had been presented, the employer's failure to question the accuracy of the hearsay evidence or cross-examine the employee on his claims regarding his average weekly wage, and, most importantly, the employer's lack of regard for the provisions of K.A.R. 51-3-8(c), we conclude that the employer was willing to have the matter of the employee's average weekly wage resolved by the ALJ on the only evidence in the record concerning the employee's average weekly wage.
The ALJ determined the employee's average weekly wage based upon the evidence submitted in the record. While that evidence may have been hearsay and may have in fact been faulty as disclosed in further appellate proceedings in this case, it was sufficient under all the circumstances to support the initial award of the ALJ in this case.
The Employer's Appeal From the ALJ's Initial Award
The employer appealed to the Board, claiming that the employee failed to establish his average weekly wage and was foreclosed from having another chance to introduce evidence concerning his average weekly wage. The issue regarding the employee's average weekly wage was appropriately before the Board. In its findings of fact, the Board concluded that " laimant did not introduce evidence of claimant's average weekly wage." This finding is not supported in the record as we have indicated above. In its conclusions of law, the Board states: "Claimant offered no evidence of his average weekly wage." This conclusion is not supported in the record. The Board recounts its understanding of what the record demonstrated concerning the employee's average weekly wage, indicating that no agreement was reached between the parties. The Board further notes that " laimant did not testify to the amount of his wage and did not otherwise offer evidence of the wage." The Board's conclusion is not entirely accurate. The employee was made aware that information concerning his average weekly wage was presented at the regular hearing by his counsel. While he had not heard the assertions of his counsel because of a faulty telephone connection, his pretrial assertions were advanced by counsel concerning specific information on his hourly wage and overtime pay. In addition, information concerning 3 weeks of TTD totaling $983.12 was discussed. In his award, the ALJ noted that information in the record "indicates an average weekly wage of $451.57 which matches claimant's assertion at the prehearing settlement conference."
The employer is in no position to challenge the ALJ determination based on the only evidence concerning average weekly wage in the record. Granted, the information, evidence, and determination of the ALJ may not have reflected the actual average weekly wage of the employee. Nevertheless, his claim under all the circumstances of this case was sufficiently established in the record to support the initial award of the ALJ. However, the Board possessed the authority to remand this issue to the ALJ in order that the employee's true average weekly wage be established.
The Board recognized that the employee's average weekly wage, as reflected in the record and by the ALJ, most probably did not reflect the employee's true average weekly wage. Recognizing the employer's complete failure to "comply with K.A.R. 51-3-8(c) because it did not provide payroll records" and some of the confusion regarding the employee's average weekly wage, the Board "in the interest of justice" determined that "this case should be remanded for further proceedings."
The employer argues that the Board had no authority to remand because it gave the employee another opportun
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