Friday, June 3, 2011

Employer/employee status

Insufficient number of employees
The Commission affirmed a denial of benefits from a slip and fall noting the uninsured employer did not have five or more employees subject to the Act.  Burton v Burton, 2014 Mo WCLR Lexis 38 (March 20, 2104). 

Exercising control
Claimant  ran his own lawn care business but periodically  performed light and sound work for his former employer, a nightclub.  He hurt his foot on elevated steps leading up to a cage for a mixed martial arts fight,  and the nightclub disputed about $28,000 in medical bills and contended that he was an independent contractor.   The Commission affirmed a finding of employment, noting that claimant's election to use a 1099 was not determinative and analyzed unrebutted testimony describing the working relationship to establish the claimant was an employee because the nightclub exercised control regarding which songs to play, the volume of the songs, and the lighting even though he performed tasks generally without supervision.   Cutsinger v Area 151 Nightclub, 3-14-2013.
ALJ  Mahon
Atty:  Korte

Uninsured trolley owner exercising control
Claimant  operated a trolley and was struck by a hit-and-run drunk driver.  The year before the accident the defendant company had declared its employees would be regarded as independent contractors to save money.  The ALJ found the employer maintained control by designating the route, the hours of operation, and where to fuel the vehicles.  The ALJ indicated there were many "legitimate" questions about the relationship of the accident and shoulder surgery 3 years later, but the employer presented no medical evidence to challenge claimant's expert, and the ALJ ordered 10% body, 40% of the shoulder, and ordered the second injury fund to pay nearly $160,000 in medical bills for shoulder surgery with complications of MRSA.  A dissent would have awarded additional interest on the unpaid medical bills.  Harrah v Tour St. Louis, 2013 Mo. WCLR Lexis 115 (July 2, 2013).
ALJ  Boresi
Atty:  Christianson

Insufficient number of employees
Claimant failed to prove defendant was subject to the Act, nor did he identify a statutory basis to "pierce the corporate veil."  Lowe v Kelly Cattle Co., Inc., 2012 Mo WCLR Lexis 123 (June 19, 2012).
ALJ:  Wilson
Atty:  Alberhasty, Powell, Elliott
Experts:  Swiam, Nogalski

The Commission in a case of first impression decision concluded a prospective juror who fell on a parking lot before reporting to jury duty was an employee entitled to benefits under the Act. Claimant worked as an insurance agent but fell while reporting to jury duty. ALJ Wilson concluded claimant did not have any contract of employment but was acting under "appointment" to discharge city services, he was in a position of trust, and the city potentially exercised control over his activities. Claimant was sent home and never served when he reported the morning that he fell, and never received pay for reporting as a juror. ALJ Wilson in the temporary award deferred any decision to allow parties to brief the impact of the Pile decision whether a fall in a parking lot was compensable or not. Roemisch v Green County, DOLIR 4-14-11.
 ALJ Wilson Atty Mills, Vessell

Mail Carrier
A letter carrier failed in a pro se claim against the Second Injury Fund alleging permanent total benefits from post traumatic stress disorder, but failed to show he was an employee covered under the Act as he was a federal employee and 287.110 excluded coverage except for cases covered by "federal law." Claimant refused to identify at hearing the issues in dispute, and relied entirely upon a meandering affidavit he prepared explaining why he felt he was disabled and unfairly treated. Hughes v United States Postal Service, DOLIR 12-7-10.

ALJ Carlisle
Atty: pro se, Schulte

Professional Athlete

Claimant is a professional athlete who sustained back and hip injuries in a scrimmage and was awarded $30,767 in disability benefits with open medical related to the 2002 accident. The Commission modified the award and found the employer was entitled to a credit for $105,667 in medical benefits paid pursuant to 287.270 and should be applied against future medical. The case is McClellon v Kansas City Chiefs, DOLIR 3-29-11. The employer had paid over $200,000 in benefits for medical and lost wages. Claimant underwent two surgeries and stated he sustained a career-ending injury.
 ALJ Meiners
Atty Round
Treater: Phillipon

Independent contractor

A pro se claimant failed to prove he was an employee under the act to qualify for benefits against the second injury fund. Claimant signed a document indicating he was an independent contractor, exercised control how he performed the work, and provided his own equipment. The "employer" had settled the case. Thompson v Corporate Transit of America, 2011 MOWCLR LEXIS 221 (Nov. 8, 2011).

Claimant worked for the employer for 6-8 years driving a truck and then entered an agreement to purchase the truck, pay his own expenses, receive a higher pay rate and reclassify himself as an independent contractor. The employer asserted that this agreement under claimant’s "own free will" precluded benefits for permanent and total disability following an 2003 injury when a keg fell on him. The case is Rader v Werner Enterprises, DOLIR 10-29-10.  affirmed   2012 Mo. App. Lexis 24  ED 95905  (Jan. 10, 2012)

Whether a claimant is an employee depends whether an employer has the right to control the means and manner of service. An employment contract is only one of eight factors to consider, and classification in a contract as an independent contractor is not conclusive. The Commission examined the parties actual practices and concluded that Werner continued to control claimant’s activities after the agreement.

The Commission further rejected the defense under 287.020.1 that claimant was not an employee because he was an "owner operator", noting the employer did not establish ownership of the truck because of inconclusive evidence of an attempted conveyance. Werner’s counsel testified that a certificate of title proved ownership. Portions of the title transfer remained incomplete such as missing a date or signature of the claimant. The agreement further limited claimant’s capacity to use or convey the trailer.

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 employer had previously conceded employee status for years in various "signings."
ALJ Lane
Atty: Thurmer, Evans, Barnard
Experts: Volarich, England
Treaters: Esses, Lloyd, Hackbarth