Martin v. Mid-America Farm Lines, Inc.

• Decision Date: 18 April 1989
• Docket Number: MID-AMERICA,No. 70857,70857
• Citation: 769 S.W.2d 105
• Parties: D. Charlene MARTIN, Claimant-Respondent, Cross-Appellant, v.FARM LINES, INC., Appellant-Employer, and Dennis Chappell, d/b/a Chappell Trucking, Respondent-Employer.
• Court: Missouri Supreme Court

Page 105

769 S.W.2d 105

D. Charlene MARTIN, Claimant-Respondent, Cross-Appellant, v. MID-AMERICA FARM LINES, INC., Appellant-Employer and Dennis Chappell, d/b/a Chappell Trucking, Respondent-Employer.

No. 70857.

Supreme Court of Missouri En Banc.

April 18, 1989.

Robert W. Hill, William E. Stoner, Springfield, for D. Charlene Martin.

John G. Newberry, Springfield, for Mid-America Farm Lines, Inc.

John Price, Raymond E. Whiteaker, Springfield, for Dennis Chappell.

BLACKMAR, Justice.

Here we consider the method of computation for computing workers' compensation benefits owing to an employee who worked part time and intermittently. Most of the numerous cases which have dealt with the question of compensation benefits for part time employees are court of appeals decisions. We essentially confirm the uniform course of prior holdings going back for more than fifty years.

The claimant, D. Charlene Martin, worked as the "second seat driver" of an over-the-road semitrailer rig, owned by Respondent Dennis Chappell and leased by him to appellant-respondent Mid-America Farm Lines, Inc. Her husband was the "first seat driver." She did not accompany him on all of his trips but rather worked when she chose to work, especially on longer trips. Her employment began in April of 1984 and continued until she was injured in September of that year. During that time she worked 18 days and received total compensation of $1,032.52, as shown in a W-2 form issued to her by Chappell. She was paid seven cents per mile traversed.

She sustained injuries in a fall from the cab of the tractor on September 13, 1984. The Labor and Industrial Relations Commission, disagreeing with the administrative law judge, concluded that she had sustained an accident arising out of and in the course of her employment so as to be entitled to workers' compensation under § 287.120, RSMo 1986. It determined that Mid-America was the "employer" responsible for paying compensation benefits, and awarded benefits computed pursuant to the 200-day rule of subdivision (5) of § 287.250. It denied the claim for medical and hospital expenses which had been billed but not paid, on the ground that the claimant had failed to establish that the charges were reasonable. Both the claimant and Mid-America appealed.

The Missouri Court of Appeals, Southern District, affirmed except as to the amount of compensation. It concluded that compensation should be computed pursuant to subdivision 3 of § 287.250, and that there was a failure of proof as to the requirements of this subdivision because the claimant had not introduced evidence of the compensation received by employees in the same employment in the same or similar locations. In so doing, the opinion suggested that our courts had applied an erroneous definition of the word "continuously" as used in subdivision (1), and that an employee who worked all hours tendered him or her by the employer should be held to have worked continuously. The court of appeals recognized that its holding was in conflict with May v. U.B.C. Marketing, 719 S.W.2d 43 (Mo.App.1986), and so transferred the case to this Court because of the conflict and because of the general interest and importance of the questions presented. We now take the case as on initial appeal and resolve all issues presented. Additional facts pertinent to the multiple issues will be discussed in the body of the opinion.

I. The Finding of Accident

Mid-America argues that the commission's finding of accident is not supported by the evidence. We defer to the fact findings of the commission when supported by substantial evidence on the record as a whole. ¹

The claimant testified as follows:

Q Did anything unusual occur while cleaning that truck on September 13, 1984?

A I fell out of the truck.

Q Could you describe how your fall out of the truck occurred?

A I was standing in the door on the passenger side, inside the cab, getting ready to step out. I remember starting to put my right foot down onto the step, but to the best of my knowledge my foot never touched that step; and I just fell out.

This testimony is sufficient to support the finding of accident. See Kloppenburg v. Queen Size Shoes, Inc., 704 S.W.2d 234, (Mo. banc 1986), casting substantial doubt on the concept of "idiopathic fall," as discussed in Matthews v. Roadway Express, Inc., 660 S.W.2d 768 (Mo.App.1983), when an employee falls and sustains injury while working. See also, Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983). The possibility of a non-accidental fall is for the commission to weigh. Likewise the circumstance that the employee may have given a less complete version of the incident when questioned by an investigator is for the commission to weigh.

Because the claimant's own testimony supports the commission's finding of accident, we need not consider the admissibility of her description of the incident to her physician as set out in a medical report received in evidence.

II. Who is the Employer? ²

In Mid-America's next point it suggests that the commission erred because there was not sufficient competent evidence to establish that it was liable as the employer. It argues that the employee contacted Chappell, was paid by Chappell, and was reimbursed by Chappell for expenses relating to the maintenance of the truck. Therefore, it concludes, the employee was the employee of Chappell, or at least the joint employee of Chappell and Mid-America.

The lease from Chappell to Mid-America contained the following clause:

LESSOR'S drivers, under LESSEE'S control and direction, shall operate said equipment during the term hereof; and LESSOR is responsible for the payment of all tolls, ferries, loading and unloading of the vehicle if applicable, drivers wage or salaries, all payroll deductions, including unemployment compensation, social security and withholding taxes due to reason of wage or earning of drivers; and LESSEE assumes Workers' Compensation Liability on drivers operating the lease equipment. (Emphasis added).

Cleaning the cab relates to the operation of the equipment within the control of Mid-America, not to maintenance for which Chappell was responsible. Section 287.130, RSMo 1986, moreover, recognizes the right of joint employers to provide for a distribution of their proportionate contributions under the Workers' Compensation Law. If claimant were determined to be a joint employee, Mid-America would not be relieved of any part of its burden. Mid-America was properly determined to be the responsible employer under the Workers' Compensation Law. Bradshaw v. Richardson Trucks, Inc., 467 S.W.2d 945 (Mo. banc 1971); Dickhaut v. Bilyeu Refrigerated Transport Corporation, 441 S.W.2d 54 (Mo.1969).

III. The Rate of Compensation

(a) The "basis for computing the compensation" (§ 287.250)

The commission found that the claimant's compensation was properly determined pursuant to subdivision (5) of § 287.250. It computed her "average daily earnings" at $57.36, based on 18 days of employment for total compensation of $1,032.52, yielding annualized earnings of $11,472 under the 200-day rule and an "average weekly wage" of $220.62.

The first six subdivisions of § 287.250 read as follows:

(1) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages, or earnings if in the employment of the same employer continuously during the year next preceding the injury;

(2) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident uninterrupted by absence from work due to illness or any other unavoidable cause;

(3) If the injured person has not been engaged in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same employment and same location (or if that be impracticable, of neighboring employments of the same kind) have earned during the period;

(4) As to employees in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as three hundred times the average daily earnings in the computation;

(5) As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, that number, if the annual earnings are not otherwise determinable, shall be used instead of three hundred as a basis for computing the annual earnings; provided, the minimum number of days which shall be so used for the basis of the year's work shall be not less than two hundred;

(6) In the case of injured employees who earn either no wage or less than the earnings of adult day laborers in the line of employment in that locality, the yearly wage shall be reckoned according to the average annual earnings of adults of the same class in the same (or if that is impracticable then of neighboring) employments;

* * * * * *

The first five of these subdivisions are concerned with compensated employees. Our cases, consistently over the years, have held that subdivisions (1), (3), (4) and (5) are to be applied in descending order, and that these subdivisions collectively are designed to provide a basis for computation of the compensation for every employee who works for wages or salary. ³ (Subdivision (2) is definitional, and subdivision (6) has to do with uncompensated or minimally compensated employees.)

Subdivision (1) applies to employees with one year of full time service to the present employer. It was early held in Coble v. Scullin Steel Co., 54 S.W.2d 777 (Mo.App.1932), that this subdivision applied only to full time employees, and that employees who worked regularly but only part time did not work "continuously" within the compass of subdivision (1)...