Seeley v. Anchor Fence Co.

• Decision Date: 11 December 2002
• Docket Number: No. 24855.,24855.
• Citation: 96 S.W.3d 809
• Parties: Scott SEELEY, Respondent, v. ANCHOR FENCE COMPANY, Appellant, Allied Mutual Insurance Company, Insurer.
• Court: Missouri Court of Appeals

96 S.W.3d 809

Scott SEELEY, Respondent, v. ANCHOR FENCE COMPANY, Appellant Allied Mutual Insurance Company, Insurer.

No. 24855.

Missouri Court of Appeals, Southern District, Division One.

December 11, 2002.

Motion for Rehearing or Transfer Denied January 2, 2003.

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Mark R. Rudoff, St. Louis, for appellant.

Paul F. Reichert, Margaret A. Schlachter, Springfield, for respondent.

ROBERT S. BARNEY, Judge.

Anchor Fence Co., and Allied Mutual Insurance Co., (collectively "Employer" or "Employer Anchor Fence") appeal the award in favor of Scott Seeley ("Employee"), entered by the Labor and Industrial Relations Commission ("Commission"). In its award, the Commission affirmed the decision of the associate administrative law judge ("ALJ") which determined Employee was entitled to compensation for his temporary partial disability and permanent partial disability and disfigurement, together with payment of his past and future medical expenses.¹ Employer appeals, raising four points of Commission error discussed below. We affirm.

The record shows that Employer was engaged in erecting residential and commercial fencing in Southwest Missouri. In the words of its chief executive officer, Steven Jacobson, in pursuing its usual business, Employer furnished "everything, the materials, the labor, everything that's required to do a complete job." When Employer sold a fence, Employer would either have its own employees or independent contractors install the fence. Indeed, Mr. Jacobson testified that 50% of Employer Anchor Fence's work was performed by independent contractors.

Also, Employer's supervisor would, with regular frequency, come out to the job site to inspect the project for compliance with the plans and specifications as set out by Employer and would suggest modifications or changes as the project progressed.

Before the commencement of any project, Employer's supervisor would see that the materials and equipment were loaded onto a trailer at Employer's business site where installers would thereafter transport the fencing materials from Employer's facility on south Campbell Avenue in Springfield, Missouri, to the construction site where a fence was being put in place.

Employee began working with Lane Neal assisting in building a fence in the summer of 1996, while Employee was still in high school. Later, in the spring of 1997, Employee began working with Jason Neal, the son of Lane Neal, building fences for Employer Anchor Fence. Employee's primary job duties consisted of being a laborer. The average time to complete a fence project was two or three days.

Jason Neal paid Employee in cash. Employee received no W-2 form for 1997 from Jason Neal. Hourly pay was based on $7.00 an hour, based on six, ten-hour days per work week plus a bonus of $50.00 for every 25 posts set in the ground. Employee testified that in the summer of 1997, prior to his accident and injury, he never saw Lane Neal on any project.

Employee also testified that on July 28, 1997, he and Jason Neal traveled to Employer's business site on Highway 160 (Campbell Avenue) in the south part of Springfield, Missouri, so that Jason Neal could pick up his check from Employer for the week's work. On this particular day they were in Employee's pick-up truck. Jason Neal's truck was broken down, and Employee had been driving his own truck going to and from fence construction sites for the week or two prior to the July 28, 1997, accident. Once paid, the usual procedure was for Jason Neal to then pay Employee for the work he had performed.

On that particular day, while at Employer's facility, one of Employer's employees requested Employee to hook up a tandem trailer with Employee's pickup truck so as to carry a load of materials to a job site so that the materials would be available on the following Monday to begin work. The tandem trailer did not belong to Employee, but he credibly testified that it belonged to Employer Anchor Fence. Employee agreed to assist in the delivery because it would save time the following Monday by allowing Employee and Jason Neal to travel directly to the fence construction site where they were scheduled to work. Employee testified that he had towed similar trailers containing fencing material on other occasions for Employer with Employee's own pickup truck without encountering any hazard or difficulty.

Employer's employees loaded the trailer with bags of cement, fence supplies, posts and equipment. As Employee and Jason Neal began to leave they were stopped by another of Employer's employees and several more bags of cement were loaded on the rear of the trailer. Thereafter Employee and Jason Neal proceeded south on Campbell Avenue, and after a short distance the tandem trailer began unexpectedly weaving from side to side. Before Employee could slow the speed down from 40 miles an hour, the tandem trailer jackknifed with the pickup and Employee lost control of the vehicle.

Employee suffered severe injuries which required him to stay in the hospital for 16 days. He had a complete separation of the right sacroiliac joint; a non-displaced fracture of the superior dome of the right acetabulum; a fracture of the left pelvic iliac wing; and a fracture of the mid aspect of the left scapula.

Employee went through two surgeries to repair damages from the fractures involving a reduction of the right sacroiliac joint with open reduction and internal fixation applied to the area of the fracture. The second surgery involved an open reduction with internal fixation with the plate and screws inserted in the left iliac wing of Employee's hip. Thereafter, Employee developed a complication of right foot drop, which condition continued to exist at the time of the hearing.²

"Our review of the [Commission's] findings is limited to a review of questions of law." Loyd v. Ozark Elec. Coop., Inc., 4 S.W.3d 579, 583 (Mo.App. 1999). "This court will modify, reverse, remand or set aside an award only if the Commission acted without or in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant the making of the award." Id.; see § 287.495, RSMo 2000. "When reviewing the sufficiency of the evidence, this court is limited to determining whether the Commission's award is supported by competent and substantial evidence on the whole record." Loyd, 4 S.W.3d at 583. "The evidence and inferences are reviewed in the light most favorable to the award, and the Commission's findings will be set aside only when they are clearly contrary to the overwhelming weight of the evidence." Id. at 583-84.

Our review essentially involves a two-step process. Lorentz v. Missouri State Treasurer, 72 S.W.3d 315, 318 (Mo. App.2002); Davis v. Research Med. Ctr., 903 S.W.2d 557, 570 (Mo.App.1995). "We must first determine whether the whole record, viewed in the light most favorable to the award of the Commission, contains sufficient competent and substantial evidence to support the Commission's award." Lorentz, 72 S.W.3d at 318. "If we find that it does, then we make a determination as to whether the award is against the overwhelming weight of the evidence." Id. In this second step, all the evidence in the record is considered, including that unfavorable to the award by the Commission. Id. We defer to the Commission on issues of credibility of witnesses and the weight given to the testimony. Id. "`Conflicts in the evidence are to be resolved by the Commission.'" Id. (quoting Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178 (Mo.App.1995)). As always, the criteria should be applied liberally in favor of compensation of the claimant. Lorentz, 72 S.W.3d at 318; Leutzinger v. Treasurer, 895 S.W.2d 591, 593 (Mo.App. 1995).

In its first point, Employer maintains that the ALJ and Commission lacked jurisdiction to render a final award "subject to review by [Commission], as the [ALJ's] award was rendered more than ninety (90) days from the date of the hearing as provided by 8 CSR 50-2.010(14)(D)."

According to Employer, the record demonstrates that although the hearing was conducted on November 9, 2000, the ALJ's "award" was not entered until June 27, 2001, clearly exceeding the time limitation for an entry of an award mandated by the applicable rule.³

In our review, we first note that the "Commission, like all administrative bodies, maintains only limited jurisdiction as is conferred upon it by statute." Sodipo v. University Copiers, 23 S.W.3d 807, 810 (Mo.App.2000). The Commission has the power to enact regulations covering its proceedings in connection with the exercise of its quasi-judicial functions, including all regulations necessary to the efficient internal management of the Department of Labor and Industrial Relations. See § 286.060.1(4) and (8), RSMo 2000; Doe Run Co. v. Brown, 918 S.W.2d 303, 306 (Mo.App.1996), overruled on other grounds by Farmer v. Barlow Truck Lines, 979 S.W.2d 169 (Mo. banc 1998). The "Commission has exclusive jurisdiction in the first instance as to matters covered by the Workers' Compensation Act, and if the Commission issues an award, judicial review proceeds directly to the appellate courts." Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6, 9-10 (Mo. banc 1992); see §§ 287.470 and 287.480, RSMo 2000.

Secondly, we observe that "Mules of a state administrative agency duly promulgated pursuant to properly delegated authority have the force and effect of law and are binding upon the agency adopting them." Missouri Nat'l Edu. Ass'n v. Missouri State Bd. Of Mediation, 695 S.W.2d 894, 897 (Mo. banc 1985). "In interpreting statutes and rules, the same principles of construction are used." Morton v. Missouri Air Cons. Comm'n, 944 S.W.2d 231, 238 (Mo.App.1997). "Words used are given their plain and ordinary meaning." Id.

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