Dillard v. Leon Dickens/Forklift of Cuba

• Citation: 869 S.W.2d 317
• Decision Date: 31 January 1994
• Docket Number: No. 18496,18496
• Parties: Elmer DILLARD, Appellant, v. LEON DICKENS/FORKLIFT OF CUBA, Respondent.
• Court: Missouri Court of Appeals

Page 317

869 S.W.2d 317

Elmer DILLARD, Appellant, v. LEON DICKENS/FORKLIFT OF CUBA, Respondent.

No. 18496.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 31, 1994.

Stephen F. Gaunt, Steelman & Beger, Rolla, for appellant.

John L. Woodward, Woodward and Associates, Cuba, for respondent.

GARRISON, Judge.

Elmer Dillard (Appellant) filed a claim for Workers' Compensation benefits against Respondent (Dickens) which was denied by the administrative law judge (ALJ) and, on appeal, by the Labor and Industrial Relations Commission (Commission). On this appeal, since the Commission affirmed and adopted the award denying compensation, we review the decision and findings of the ALJ as adopted by the Commission. Cole v. Town & Country Exteriors, 837 S.W.2d 580, 583 (Mo.App.1992).

The standard of appellate review in Workers' Compensation cases is well defined. We view the evidence and legitimate inferences in the light most favorable to the award of the Commission; we cannot substitute our judgment for that of the Commission; we must disregard any evidence which might support a finding different from that of the Commission; and we are to uphold the decision of the Commission if it is supported by

competent and substantial evidence on the whole record. Mashburn v. Tri-State Motor Transit Co., 841 S.W.2d 249, 250 (Mo.App.1992); Rector v. City of Springfield, 820 S.W.2d 639, 640 (Mo.App.1991); Phillips v. Ozark Bank, 803 S.W.2d 662, 663 (Mo.App.1991). Pursuant to § 287.495, ¹ in the absence of fraud, the findings of fact made by the Commission within its powers are conclusive and binding; we review only questions of law; and we may modify, reverse, remand for rehearing or set aside the award only if one of the following grounds exists:

(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.

FACTS

Dickens operated a business known as Forklift of Cuba which repaired all types of heavy equipment, including forklifts. He occasionally bought old forklifts for parts, and over a period of time he accumulated scrap metal and machinery. There was evidence that Dickens' employees occasionally placed some of the smaller scrap in barrels themselves and sold it, but there was no evidence that they undertook to cut up and dispose of the larger pieces such as the frames and counterweights of the forklifts which weighed between 5,000 and 8,000 pounds. The testimony indicated that anywhere from once or twice a year to every four or five years, enough scrap accumulated to justify selling it or having someone clean it up.

Appellant and his brother, Robert Dillard, were in the business of buying and selling scrap metal. Having done so on one prior occasion, they made an agreement with Dickens to clean up and sell his scrap metal. In order to do this, they used cutting torches to reduce the scrap to a manageable size so it could be hauled and sold. All of the equipment used to cut up the scrap and haul it belonged to Appellant, who also paid all expenses of the operation. Dickens specified that Appellant was to leave the axles and wheels from the forklifts, since he could use them, and they also had rubber on them which salvage yards would not accept. No particular hours of work were required as long as it occurred during Dickens' normal hours of operation. Based on the agreement, which was made about a week before the subject accident, Dickens was to receive fifty percent of the sale proceeds.

Dickens used a crane to move the larger pieces of scrap forklift equipment in order to identify the scrap to be disposed of and to position it so it was accessible. Although the evidence is not clear as to when it happened, the crane apparently became stuck in a low place while being used by Dickens for that purpose.

Dickens testified that on the day of the accident, shortly before closing the business, he asked a friend to help him extricate the crane by pulling it with a tractor. While Appellant may have been close by, Dickens intended for his friend to operate the tractor when he said, "You drive the tractor." After connecting the two with a chain, Dickens noticed Appellant trying to start the tractor. According to Dickens' testimony, he started to tell Appellant to get off when the tractor started and then flipped over, pinning Appellant beneath it.

OPINION

The controlling issue in the instant case is whether Appellant was a statutory employee of Dickens pursuant to § 287.040.1 and therefore eligible for Workers' Compensation benefits.

A "statutory employer" is defined in § 287.040.1 as follows:

Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

The purpose of the statute "is to prevent an employer from evading workmen's compensation liability by hiring independent contractors to perform the usual and ordinary work which his own employees would otherwise perform." McGuire v. Tenneco, Inc., 756 S.W.2d 532, 534 (Mo. banc 1988). The burden of pleading and proving such status is on the person claiming to be a statutory employee. Rouge v. St. Charles Speedway, 733 S.W.2d 854, 855 (Mo.App.1987).

Under the statute, three elements must coexist in order to establish that a worker is a statutory employee: (1) the work was performed pursuant to a contract; (2) the injury occurred on or about the premises of the alleged statutory employer; and (3) the work was in the usual course of business of the alleged statutory employer. McGuire v. Tenneco, Inc., 756 S.W.2d at 534. In the instant case, there is no issue as to the first two of the above elements. The live and determinative issue is whether Appellant was engaged in work which was an operation of the usual business of Dickens.

In his first point, Appellant contends that the Commission erred in denying him statutory employee status because Dickens exercised control over him in the performance of his services and because he was "doing work in the usual course of the business" of Dickens.

Appellant first argues that he is entitled to be declared a statutory employee if Dickens had control of, or the right to control, the work he was performing, and he notes that the ALJ made no findings on this issue. In this regard he relies heavily on Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193 (Mo.App.1979), contending that "the usual course of business requirement" is satisfied where right to control the detail of the work is retained by the alleged employer. The issue in Ceradsky, however, was whether the deceased workman was an employee or independent contractor for purposes of the Act. There was no issue concerning the worker's status as a statutory employee pursuant to § 287.040. In the instant case, the parties make no issue concerning the distinction between an employee and an independent contractor. They also make no issue concerning whether Appellant satisfies the first element of a statutory employee: "the work was performed pursuant to a contract." Appellant's argument assumes that control or right to control is a determinative element in establishing a person's status as a statutory employee.

While there is some authority for the proposition that the issue of control can be relevant to the question of whether the work being performed was in the usual course of the alleged employer's business, Rouge v. St. Charles Speedway, 733 S.W.2d at 855, that issue actually goes to the question of whether the worker was an independent contractor or an employee. See Cole v. Town & Country Exteriors, 837 S.W.2d at 584, and McDonald v. Bi-State Development Agency, 786 S.W.2d 201, 203 (Mo.App.1990). The fact that the issue of control is not determinative of the status of a worker as a statutory employee is indicated by the following language from Wood v. Proctor & Gamble Manufacturing Co., 787 S.W.2d 816, 820 (Mo.App.1990):

... These control factors, however, are not statutory elements of section 287.040 and it has been recently held that lack of control is consistent with statutory employment. Shaver v. First Union Realty Management, 713 S.W.2d 297, 299 (Mo.App.1986). In addition, the most recent Missouri Supreme Court case on this issue, McGuire v. Tenneco, Inc., 756 S.W.2d 532 (Mo. banc 1988), did not mention this factor in applying statutory employer status to a business that had hired an independent contractor.

. . . . .

The decisive issue under Appellant's Point I is whether the salvage work was in the usual...