Tuesday, June 2, 2009

Employee-employer status disputed

Summary judgment did not estop status as employer
Claimant fell when he performed home repairs on a barn roof  and sued the owner who hired him to make the improvements.  The ALJ denied benefits based on estoppel that the issue had been fully litigated before the District Court.  The Commission concluded it had  power to review the issue or employment independently because it asserted that employment for purposes of civil liability imposed different elements of proof than employment for purposes of comp liability and concluded the 'issue' of employment was not the same.  In the case the determination of employment depended on the level of control, and the commission found there wasn't sufficient control to create an employment relationship even though the owner may have been more involved than other customers.  The takeaway is the Commission retains more discretion for itself  and avoids the issue of sanctions for the prosecution of the case after an unfavorable determination in district court. 
 Hamilton v Gregory and Toni Palm, DOLIR 6-26-13  (2-0 decision)

ALJ Wenman and Boresi
Atty: Robert Kister, Martin Buckley

Claimant received an award for permanent and total disability benefits following a 2003 accident in Missouri. Claimant states he spends most of his time laying in bed or a massage chair and taking daily medication for stabbing pain as a result of his back injury and two-level fusion. The court noted as a result of liberal construction of a 2003 claim an independent contractor agreement is inadequate to specify a Nebraska forum for purposes of Section 287.110.2 when the accident occurred in Missouri.. The court noted the employer had originally argued claimant was an independent contractor and did not preserve its choice of law argument specifically interpreting 287.110.2 exception: "unless the contract of employment in any case shall otherwise provide. " The Commission opinion notes the employer first asserted the "independent contractor" defense in September 2009, 6 years after the accident, after the employer paid $334,758 in medical and lost time benefits.

The evidence was insufficient under an owner-operator defense to establish claimant "owned" the truck, because claimant had limited rights to use the truck and could not convey it. Dr. Volarich's restrictions, including the boilerplate need to "rest when needed" supported a PTD award. The case is Rader v Werner Enterprises, 2012 Mo. App. Lexis 24, ED 95905 (Jan. 10, 2012)

Atty: Lindsay, Thurmer, Barnard
Experts: Irvine, Volarich, DeGrange, England

Claimant was a beautician who was fatally shot during a robbery while covering a shift for another person. He  failed to show he was an employee and not an independent contractor when he worked for an uninsured salon. He did not demonstrate sufficient control or a verbal contract to establish he was a statutory employee.  A dissent found a contract existed and classification of claimant's status was purposeful to elude state and federal laws.  Pacheco, dec. v Tina's Hair Salon, 2012 Mo WCLR Lexis 47 (March 15, 2012)  affirmed Pachecho v Tina's Hair Salon, WD 75062 (April 30, 2013).  The court of appeals noted that claimant failed to establish the third prong of statutory employment that activities were in the usual course of employer's business as claimant used space on  a fee-splitting arrangement, he set his own hours and fees, and he and did not directly assist the salon owner, even though both parties performed similar activities.  The parties disputed whether claimant's attendance was required on the day of the robbery.
ALJ  McKeon
Atty:  Kenter

Claimant failed to prove that he was an employee under the controllable service test when he performed duties for a limited period of time, he was paid sporadically, and  ALJ Tilly concluded he was directed what to perform but not how to perform assignments. The Commission affirmed the case Butler v Laplant, 6-2-09.

In Linden v Davenbaugh, DOLIR 7-30-09, claimant proved he was an employee when he was driving home after transporting a patient and struck a bull in the road, resulting in head and neck injuries. Employer’s counsel, after being contacted by telephone, stated that neither he nor the Employer would appear and that the hearing may proceed in abstentia. The employer filed for bankruptcy the day after the hearing, in which the uninsured employer was found liable for over $80,000 in medical bills, TTD and permanent partial disability.

In Hudgins v Sentinel Fastener Supply, 7-30-09, claimant injured his shoulder while working as a warehouse picker and established that he was an employee working for an uninsured employer. ALJ Fowler awarded the disability rating obtained by claimant's expert Koprivica and awarded medical bills, to be paid by the Second Injury Fund.

"Five or More" Makes Company subject to Act
In a fight whether or not the uninsured employer had enough employees to be subject to the Act, the Court of Appeals affirmed the Commission that the owner's wife, who had no employment contract, was unpaid, and could quit anytime was still an "employee" to grant claimant benefits under the Act. Claimant sustained injuries when a motorcycle fell on him. The parties disputed the level of involvement regarding payroll and checkbook functions and the owner attempted to reconcile his testimony at hearing and admissions he made at an earlier deposition that that he just "wanted to get out of the room." The parties also disputed the level of involvement of a friend of the owner who was a shareholder who would sometimes work behind the counter and "maybe like pick up the phone when it rings." Applying a liberal construction, the court rejected defenses of employment raised by second injury fund. The commission case indicates the dispute was about $14,000 in unpaid bills. The court rejected the uninsured employer's brief in support of the Fund, as the employer had failed to post a bond. Ellen Morgan represented the employee.The case is Busby v D.C. Cycle Ltd, SD 29464 (Mo. App. 8-31-09).

Circuit court addresses statutory employment issue
Claimant alleged he was injured while delivering product to Walmart's store and filed suit. Wal-mart on the day of the trial attempted to block the lawsuit and asserted that the plaintiff was a statutory employee and that the court lacked subject matter jurisdiction. The court concluded that the defense was misdirected since the court clearly have constitutional authority to hear civil claims. The southern district case is McCracken v Walmart, No. 29087 (Mo. App. 2009).1 A similar conclusion was reached in State of Mo ex rel Dolgencorp Inc. dba Dollar General Stores v Honorable Stephen R. Sharp, No. 29398 (MO. App. SD 3-19-09).

Claimant did not establish an entitlement to second injury fund benefits when he failed to show he was an employee under 287.030, when his primary injury was a volunteer fireman and his second job wage loss claim involved his primary source of income hauling asphalt to road construction sites under a lease agreement. In a matter of first impression, the court applied the owner-operator exemption to second injury fund claims, and found 287.020.1 excluded owner-operators as an employee. Davidson v Missouri State Treasurer, No. SD 30536 (Mo. App. 12-7-2010).

truck driver
The commission affirmed a denial of benefits that a truck driver was not an employee covered under the Act when he sustained a hernia in Parsons v Steelman Transportation, DOLIR 3-23-10. The defendant operated a multi-state trucking company and leased trailers to drivers. Claimant admitted in his application that he was an independent contractor and opted to carry his own occupational accident policy. Judge Mahon rejected the argument that the application was a statement of an "injured" employee (as the statement occurred before the injury), and the novel argument that the accident was compensable as it flowed from lifting side panels directly off of the trailer and not from driving. The court of appeals affirmed the decision, Parsons v Steelman Transportation, 335 S.W.3d 6 (Mo. App 2011) transf. denied  2011 Mo. Lexis 114.

Domestic servant
The court of appeals in Massey v Spasser, 318 S.W.3d 737 (Mo. App. 2010) found a CNA injured while hired by private individuals to provide care in a private household excluded from coverage under the Missouri Workers Compensation Act, after she states she claims she pulled her back while carrying for a patient, reversing an award of benefits for a back strain awarded by the commission. The commission defined "domestic servant" as a matter of first impression, relying upon decisions in other states. The court found the authority outside Missouri not persuasive and decided there was no statutory intent to provide benefits in this type of case. ALJ Tackes originally denied benefits.