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Dalba v. YMCA of Greater St. Louis2/26/2002
Appeal From: Labor and Industrial Relations Commission
Opinion Vote: AFFIRMED.
Crahan and Mooney, JJ., concur.
Opinion:
Introduction
YMCA of Greater St. Louis (YMCA) appeals from a Final Award Allowing Compensation (Final Award) of the Labor and Industrial Relations Commission (Commission) affirming the Award and Decision of the Administrative Law Judge (ALJ) granting Lori L. Dalba (Dalba) an increased rate of temporary total disability and permanent partial disability benefits that incorporated wages from Dalba's second job. We affirm.
Factual Background
YMCA employed Dalba who injured her right shoulder loading volleyball poles into a van on January 25, 1998. In April 1998, Dalba underwent surgery involving arthroscopic debridement of mild bicipital tendonitis of the right shoulder, arthroscopic subacromial bursectomy, open excision of torn acromioclavicular joint meniscus, excision of distal clavicle, and open acromioplasty of the right shoulder. In August 1999, a second surgery was performed to excise additional bone from the clavicle. The parties stipulated that Dalba has 30% permanent partial disability to the right shoulder.
During her employment with YMCA, Dalba worked a second job. She missed time at both jobs due to her injury.
Procedural Background
Dalba filed a Report of Injury with the Division of Workers' Compensation (Division) on February 9, 1998, and a Claim for Compensation with the Division on May 4. YMCA filed its Answer to Claim for Compensation with the Division on May 29. The Second Injury Fund also filed an Answer to Claim for Compensation with the Division on June 3. In February 2001, the parties submitted the matter to the ALJ with a stipulated set of facts. The sole issue presented for resolution was the interpretation of a 1998 amendment to Section 287.250.8 that would affect the rate of benefits awarded to Dalba.
In April 2001, the ALJ granted Dalba's Claim for Compensation in her Award and Decision, finding that the 1998 amendment to Section 287.250.8 was substantive and thus should not be applied retroactively. Accordingly, the ALJ concluded that Dalba was entitled to an increased rate of temporary total disability and permanent partial disability benefits that incorporated wages from Dalba's second job.
Subsequently, YMCA filed an Application for Review with the Commission. On June 29, 2001, the Commission entered its Final Award, affirming and incorporating by reference the ALJ's Award and Decision. YMCA appeals from the Final Award.
Standard of Review
Section 287.495.1 RSMo. (2000) provides the standard of review for the appellate court in workers' compensation cases. It provides in relevant part:
The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) that the commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the commission do not support the award; (4) that there was not sufficient competent evidence in the record to warrant the making of the award.
Decisions of the Commission that are clearly interpretations or applications of law are reviewed for correctness without deference to the Commission's judgment. Tidwell v. Kloster Co., 8 S.W.3d 585, 588 (Mo.App. E.D. 1999).
Discussion
YMCA raises two points on appeal. In its first point, YMCA argues that the Commission erred as a matter of law and acted without its powers in holding that D
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