Higgins v. Treasurer of State of Missouri

• Decision Date: 20 April 2004
• Docket Number: No. WD 62591.,WD 62591.
• Citation: 140 S.W.3d 94
• Parties: Harold HIGGINS, Appellant, v. TREASURER OF The STATE OF MISSOURI as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

140 S.W.3d 94

Harold HIGGINS, Appellant, v. TREASURER OF The STATE OF MISSOURI as Custodian of the Second Injury Fund, Respondent.

No. WD 62591.

Missouri Court of Appeals, Western District.

April 20, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Labor and Industrial Relations Commission.

Jerrold Kenter, Kansas City, MO, for Appellant.

Anemarie D. Mura, Kansas City, MO, for Respondent.

Before: EDWIN H. SMITH, P.J., HOLLIGER and HARDWICK, JJ.

LISA WHITE HARDWICK, Judge.

Harold Higgins appeals the Labor and Industrial Relations Commission's denial of his workers' compensation claim against the Second Injury Fund. We affirm the Commission's determination that Higgins' claim was exempt under Section 287.030, R.S.Mo.2000,¹ because his employer had fewer than five employees.

FACTUAL AND PROCEDURAL HISTORY

On July 7, 1995, Higgins severely injured his right hand while sharpening the blade of tractor equipment he was using to mow farmland owned by Harold Chaney. Higgins had occasionally mowed the land and performed small tasks at a gas station Chaney also owned. Chaney paid Higgins with cash or barter payments of gasoline, tires, or the use of the tractor on other mowing jobs.

Two years after his hand injury, Higgins filed a workers' compensation claim against Chaney seeking total disability benefits. Higgins also filed a claim against the Second Injury Fund based on a prior disability and because Chaney had no workers' compensation insurance for work performed on his farmland. Higgins settled his claim against Chaney but proceeded to a hearing on the Second Injury Fund claim.

Pursuant to Section 287.220.5, the Second Injury Fund was permitted to assert all defenses available to Chaney as Higgins' employer. The Fund presented evidence that Chaney had no employees working on his farmland and fewer than five employees working at his gas station.

Following the hearing, the Administrative Law Judge (ALJ) determined Chaney was an exempt employer under the workers' compensation law, § 287.030.1(3), because he had fewer than five employees. The ALJ also determined Higgins was performing farm labor, which is exempt from workers' compensation coverage pursuant to Section 287.090.1. The ALJ denied the claim against the Second Injury Fund based on both defenses. Upon administrative review, the Labor and Industrial Commission affirmed and incorporated the ALJ's decision. Higgins appeals.

STANDARD OF REVIEW

On appellate review, we must affirm the Commission's final decision unless it acted without or beyond its power, the decision was procured by fraud, the facts found do not support the decision, or the decision is not supported by sufficient competent evidence in the record. § 287.495.1. The Commission's factual determinations, if supported by the evidence, are entitled to deference, but we independently review questions of law. Id. Generally, we review the findings of the Commission and not those of the ALJ. Tangblade v. Lear Corp., 58 S.W.3d 662, 665 (Mo.App. W.D.2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo.banc 2003). However, when "the Commission affirms or adopts the findings of the ALJ, we review the decision and findings of the ALJ as adopted by the Commission." Tangblade, 58 S.W.3d at 665.

ISSUES ON APPEAL

Higgins appeals on grounds that: (1) the ALJ erroneously applied Section 287.030.1(3) in denying his Second Injury Fund claim; and (2) the evidence in the record is insufficient to support the ALJ's alternative determination that Higgins' claim is exempt because he was performing farm labor at the time he was injured. We address only the first issue, as it is dispositive of the appeal.

To be subject to Missouri's workers' compensation laws, Section 287.030.1(3)² provides that an employer must have five or more employees.³ The law further provides that if an employer is not self-insured or fails to obtain workers' compensation insurance, the Second Injury Fund may be held liable for a disability benefit award to an employee injured while in the employment of the uninsured employer. § 287.220.5.⁴ In defending against such liability, the Fund is entitled to any defenses that would have been available to the uninsured employer. Id.

Higgins contends the ALJ erred in applying the "five or more employees" rule to deny his claim against the Second Injury Fund. He argues Section 287.220.5 does not expressly state that an uninsured employer must have a specified number of employees to give rise to a Second Injury Fund claim. Higgins contends he was entitled to pursue his disability claim against the Fund solely on the basis that his employer, Chaney, was uninsured.

Higgins' argument ignores express language in Section 287.030 indicating that the "five or more employees" definition of the term "employer" is applicable throughout the workers' compensation statute. There was no need for the legislature to include the "five or more employees" requirement in Section 287.220.5 because the term "employer" was statutorily defined to include that requirement. When interpreting the workers' compensation statutes, we must determine the legislative intent based on the plain and ordinary meaning of the language used. Motton v. Outsource Int'l, 77 S.W.3d 669, 673 (Mo.App. E.D.2002). "The legislature's own construction of its language by means of definition of the terms employed should be followed in the interpretation of the statute to which it relates." State v. Rousseau, 34 S.W.3d 254, 259 (Mo.App. W.D.2000).

Read in conjunction with the definition of "employer" applicable throughout the workers' compensation statute, the plain language of Section 287.220.5 allows a Second Injury Fund claim only if the claimant's employer is uninsured and is not otherwise exempt under Section 287.030. This interpretation is supported by the additional provision in Section 287.220.5 granting the Fund all defenses available to employers. Because Chaney could have defended against Higgins' claim on the basis that he had fewer than five employees,⁵ the ALJ made a reasonable determination that this defense was equally available to the Fund.

Higgins further argues that this statutory interpretation unconstitutionally "deprive[s] him of equal protection under the law because there is no rational relationship between the right to benefits from the Second Injury Fund and the number of employees the employer has." As a preliminary matter, we must determine our jurisdictional authority to consider this constitutional challenge.

By virtue of Article V, § 3 of the Missouri Constitution, the Supreme Court has exclusive jurisdiction in all cases involving the constitutional validity of a statute. However, the mere assertion that a statute is unconstitutional does not deprive the court of appeals of jurisdiction. Wright v. Mo. Dept. of Social Services, 25 S.W.3d 525, 528 (Mo.App. W.D.2000). The constitutional issue must be real and substantial, not merely colorable. Id.

In determining whether a constitutional claim is real and substantial, we make a preliminary inquiry as to whether it presents a contested matter of right that involves fair doubt and reasonable room for disagreement. Id. If the initial inquiry discloses the claim is so legally or factually insubstantial as to be plainly without merit, the claim may be deemed merely colorable. Id. We conclude, for the reasons set forth herein, that Higgins' constitutional challenge is merely colorable and, thus, we have jurisdiction to address it.

Generally, the first step in considering an equal protection claim is to determine whether the statutory scheme infringes upon a...