Workers’ compensation claimant, Stanislaw Wotlinski, appeals from the decision of the Labor and Industrial Relations Commission reducing the award of the administrative law judge from $15,433.36 to $9,372.92. The sole issue on аppeal is whether the Commission properly applied § 287.250(5), RSMo.Cum.Supp.1984, instead of § 287.250(3) in determining the appropriate rate of compensation.
The Commission found the following facts. Claimant had worked for his employer, LaFlam Bindery, Inc., for 11 days before his injury. He was told he would work wherever he was needed throughout the plant. Each day he was instructed by a supervisor where he was to work. During his employment he worked on various paper cutters and sometimes emptied trash and cleaned up around the machines. There were no less than 9 other employees working in the same cаpacity and performing similar tasks. Claimant’s rate of pay was $3.50 per hour. He was injured while operating a paper cutting machine which partially amputated three fingers of his left hand. The Commission’s finding that the employer was liable for 90 weeks of permanent partial disability and 22 weeks of temporary total disability, in addition to the medical expenses furnished, is uncontested. The parties have stipulated that the employer operated 260 days per year.
Crucial to the determination of the disputed issue are the trial tactics and strategies adopted by the respective parties.
Subsequently, claimant refused to stipulate to the identification and authenticity of the employer’s payroll records. A second hearing was scheduled for October 29, 1984, at which the payroll records were produced by the employer’s president. Claimant’s attorney declined to question the witness or to introduce the records and stated that he would stand on the testimony of the union officer. The employer’s attorney likewise declined to introduce the records.
In his award the administrative law judge ruled that bеcause the evidence of the earnings of others of the same class in the same employment and same location was not presented on the record, the wages testified to by the union officer were to be used in computing the compensation rate under § 287.250(3). On appeal, the Commission overturned this ruling, holding that because the burden of proof as to every issue in the case is uрon the claimant, the failure to introduce evidence regarding claimant’s fellow employees made § 287.-250(5) applicable.
The disputed issue, the appropriate rate of compensation, is to be determined on the basis on of the applicable subsection of § 287.250, RSMo.Cum.Supp.1984, which prescribes how compensation is to be computed. The statute has 10 subsections.
[I]t is necessary to commеnce with the first subsection and then to descend in numerical order under the other subsections until the wage rate provision is found that applies to the particular facts of the case.
Stegeman v. St. Louis Francis Xavier Parish,
Examining the subsections in descending order we quickly pass by subsections one and two as the parties agree they have no application under the facts of this case. Subsection three provides:
(3) If the injurеd employee has not been engaged in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computеd according to the annual earnings which persons of the same class in the same employment and same location (or if that be impracticable, of neighboring employments of the same kind) have earned during the period.
Claimant contends the Commission erred in holding this subsection to be inapplicable. We find no error on the basis of the evidence produced by claimant in this casе.
Under subsection three two methods of computing the compensation rate for an injured person of less than one year’s employment are possible. The primary method is by showing the annual earnings of persons in the same class in the same employment and the same location. This language has been construed to mean “other persons of the same class in the employment оf the same employer....” Metzinger v. H.A. Dailey, Inc.,
We reject claimant’s suggestion that the failure of the employer to introduce the records into evidence creates an inference that no other ehiployees were in the same class аs claimant. No adverse inference arises from the failure of one party to introduce documentary evidence which is physically present and equally available to another party. Once documentary evidence has been produced and made available for the use of all parties, none of the factors giving rise to an adverse inference from the failure оf a party to produce a human witness with whom he has a particular relationship exist. See Hill v. Boles,
Subsection four of the statute has no application because the claimant and the employer did not customarily operаte throughout the 300 working days of the year. Glazebrook v. Hazelwood School District,
As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, that number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for сomputing the annual earnings; provided, the minimum number of days which shall be so used for the basis of the year’s work shall be not less than 200.
From the record presented to it, the Commission had no means of determining claimant’s annual earnings except by multiplying his average daily wage by the stipulated number of days of operation per year. Noland,
$3.50 per hour x 8 hours per day = $28.00 per day
$28.00 per day x 260 days per year = $7,280.00 per year
$7,280.00 per year divided by 52 weeks = $140.00 per week
$140.00 per week X 66%% (§ 287.195.5) = $93.33 per week
We agree with the Commission’s conclusion that § 287.250(5) was the applicable subsection under the evidence in this case and we find its computation to be in accord therewith.
Accordingly, the award of the Labor and Industrial Relations Commission is affirmed.