Glenn v. Stoneload Delivery Co., WD

• Decision Date: 21 March 1995
• Docket Number: No. WD,WD
• Citation: 894 S.W.2d 713
• Parties: Randall GLENN, Respondent, v. STONELOAD DELIVERY COMPANY, Appellant, State of Missouri Second Injury Fund, Respondent. 49704.
• Court: Missouri Court of Appeals

Page 713

894 S.W.2d 713

Randall GLENN, Respondent, v. STONELOAD DELIVERY COMPANY, Appellant State of Missouri Second Injury Fund, Respondent.

No. WD 49704.

Missouri Court of Appeals Western District.

March 21, 1995.

Bruce C. Jackson, Jason M. Pottinger, Kansas City, for Randall Glenn.

Scott Mach, The Popham Law Firm, Kansas City, for Stoneload Delivery Co.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Sue A. Sperry, Asst. Atty. Gen., Kansas City, for Second Injury Fund.

Before BRECKENRIDGE, P.J., and ELLIS and LAURA DENVIR STITH, JJ.

ELLIS, Judge.

This case arises from a workers' compensation claim filed by Randall Glenn against Stoneload Delivery Company, Inc. ("Stoneload"), and Concrete Haulers, Inc., and their insurance carriers.

Stoneload is in the business of delivering materials such as stone, fly ash and oil from one location to another. It leases the trucks used to haul the materials from various individuals. Glenn and his wife co-owned a dump truck which they leased to Stoneload beginning January 2, 1992 for a twelve month period. Until he was injured, Glenn reported on a daily basis to Limpus Quarry ¹ where his truck was loaded. He then delivered the load to a customer designated by Stoneload. During this period, Glenn received a weekly paycheck from Stoneload, with 10% of the gross revenue deducted by Stoneload and allocated as follows: 4% to Workers' Compensation premiums, 2% to general liability, and 4% allocated to cover administrative costs. Thus, Glenn was paid 90% of the gross revenue of his truck.

On July 1, 1992, Stoneload began "leasing" its drivers from Concrete Haulers, which is in the business of selling pre-mixed concrete and "leasing" employees to other companies. As of that date, Glenn's weekly paychecks came from Concrete Haulers rather than from Stoneload. The same deductions were taken from his paychecks after Concrete Haulers began issuing the paychecks. In fact, other than the paycheck coming from Concrete Haulers rather than Stoneload, there was no change in the nature or character of Glenn's employment or his payment after July 1, 1992. ²

On August 3, 1992, while making a routine maintenance check on his truck in the course of a regular work day, Glenn noticed a brake drum on his truck was cracked, creating a dangerous condition within the truck. He notified the quarry dispatcher of the problem and left work early to pick up a replacement part to repair the truck. After picking up the part, he drove to his home where he began the work to repair the brake drum. While repairing the truck, he fell on the concrete below, injuring his hip and back. Despite his pain, he finished repairing the truck that evening. He reported for work the following day, but as the day progressed, the pain in his back increased. The next day, August 5, 1992, he saw his personal physician, Dr. William T. Betz, D.O. Dr. Betz prescribed conservative treatment for Glenn's back pain. However, this treatment was unsuccessful and Glenn eventually underwent a surgical fusion performed by Dr. Daniel Downs, an orthopaedic physician, on December 4, 1992. Metal reinforcements were placed in his lower back and a battery pack was installed to help the bone graft heal. At the time of the hearing, Glenn was still being treated by Dr. Downs.

On January 5, 1993, Glenn filed a claim with the Missouri Department of Labor and Industrial Relations Division of Workers' Compensation. Following a hearing, the Administrative Law Judge issued an award denying Glenn's claim for workers' compensation benefits and finding that Glenn was not an employee of either Stoneload or Concrete Haulers. Glenn timely filed an application for review with the Labor and Industrial Relations Commission. On June 16, 1994, the Commission issued an award reversing the order of the ALJ. The Commission found that Glenn was an employee of Stoneload, that the injury arose out of and in the course of employment, that a medical causal relationship existed between the fall and the injury, and that Glenn was entitled to temporary total disability payments under the Missouri workers' compensation law from Stoneload and its insurance carrier. Stoneload appeals the Commission's award.

Stoneload raises two points on appeal. First, it contends the Commission erred in finding Glenn was Stoneload's employee at the time of the alleged accident because the evidence showed Glenn was, at best, an independent contractor. Second, Stoneload contends the Commission erred in finding Glenn's injuries arose out of and in the course of his employment with Stoneload.

This court reviews a workers' compensation case in the light most favorable to the award of the Commission and upholds the Commission's decision if it is supported by competent and substantial evidence. Page v. Green, 686 S.W.2d 528, 530 (Mo.App.1985). We will only set aside the award if the Commission's findings are clearly contrary to the overwhelming weight of the evidence. Carroll v. Loy-Lange Box Co., 829 S.W.2d 86, 88 (Mo.App.1992).

In its first point, Stoneload contends the Commission erred as a matter of law in finding Glenn was an employee of Stoneload at the time of the alleged accident because the evidence did not establish either an actual or statutory employment relationship. Stoneload contends Glenn was, at best, an independent contractor.

"Determining the employment status--employee or independent contractor--of a person injured during the scope and course of employment involves a question of law this court may correct." Gaston v. J.H. Ware Trucking Inc., 849 S.W.2d 70, 73 (Mo.App.1993). The issue of whether a claimant is an employee or independent contractor depends on the facts of each case. Id.

In Gaston, this court applied Ceradsky v. Mid-Am. Dairymen, Inc., 583 S.W.2d 193, 197 (Mo.App.1979), and Miller v. Hirschbach Motor Lines, Inc., 714 S.W.2d 652 (Mo.App.1986), to a case factually similar to the one at bar. As we stated in Gaston, generally, in an employer-employee relationship, the employer either reserves the right to control or actually controls the means and details associated with completing the job. Id. at 73. An independent contractor, on the other hand, is one who, exercising independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer, except as to the result of his work. Id. at 74. When the evidence does not clearly demonstrate the employer's actual or right to control, the "relative nature of the work test" determines employment status for purposes of worker's compensation. Id. Under this test, the right to direct the detail of the work becomes only one indicium of control and the inquiry turns to the economic and functional relationship between the nature of the work and the operation of the business served. Id. Rather than looking at technical common law definitions, the inquiry tends toward the public purpose of the scheme for workmen's compensation which, of course, is to make industry bear the burden of compensating employees for injuries arising out of employment. Id.

The factors to consider under the nature of the work test include: the character of the claimant's work or business--how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on--and its relation to the employer's business, that is, how much it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.

Id.

In Gaston, the claimant, a truck driver, was injured as he changed a battery in the truck which he owned but drove exclusively for the defendant-employer. The parties had a written agreement which specifically described the claimant as an independent contractor. Pursuant to the agreement between the parties, the claimant was responsible for all maintenance on the truck, which had the employer's name painted on the side of it. The employer's dispatchers told the claimant when and where to pick up loads but the claimant could decline to haul loads at his own discretion. The claimant was paid on a commission basis and he paid for all his expenses incurred during trips for the company. The employer did not deduct taxes from the claimant's paycheck, nor did it pay for health insurance.

Gaston repeated the principle that the workers' compensation law is to be broadly and liberally interpreted so as to extend its benefits to the largest possible class and any doubt as to the right of an employee to compensation should be resolved in favor of the injured employee. We then applied the nature of the work test and held that, despite the contractual designation of independent contractor, Gaston was an employee of the...