Wilmeth v. TMI

• Decision Date: 12 September 2000
• Parties: (Mo.App. S.D. 2000) Dick Wilmeth, Claimant-Respondent, v. TMI, Inc., and State Treasurer as Custodian of the Second Injury Fund, Appellants. 23525 and 23546 0
• Court: Missouri Court of Appeals

26 S.W.3d 476 (Mo.App. S.D. 2000)

Dick Wilmeth, Claimant-Respondent, v. TMI, Inc., and State Treasurer as Custodian of the Second Injury Fund, Appellants.

23525 and 23546

Missouri Court of Appeals Southern District

09/12/2000

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: John C. Banning

Counsel for Respondent: Kevin Hays Dunaway

Opinion Summary: None

Shrum and Montgomery, JJ., concur.

John E. Parrish, Presiding Judge

TMI, Inc., (TMI) and the state treasurer, as custodian of the Second Injury Fund, each appeal a final award of the Labor and Industrial Relations Commission (the commission) to Dick Wilmeth (claimant)¹ for disability compensation and medical benefits. TMI's appeal is No. 23525. The Second Injury Fund's appeal is No. 23546. The appeals have been consolidated.

The commission's final award adopted the administrative law judge's award and decision. The commission found that "claimant was an employee of [TMI] and the parties were operating under and subject to The Workers' Compensation Law for the State of Missouri." It found:

On or about March 11, 1994 [claimant] suffered a motor vehicle accident while driving a truck for [TMI]. At the time of the accident [claimant] was hauling an empty trailer from Booneville [sic], Missouri to Crescent, Iowa to pick-up [sic] a load for [TMI]. [Claimant] was operating the truck at the direction of Mr. Van Winkle of [TMI]. The evidence is lacking of any indication that [claimant] was not where he should be, or that he was engaged in activity, [sic] different from which he had been retained to perform.

The commission concluded "that the accident arose out of and in the course of [claimant's] employment with [TMI]"; that "claimant is thus entitled to and [TMI] is responsible for providing benefits under Chapter 287, RSMo." The commission further found, "Similarly, pursuant to Section 287.220.5, RSMo, the Treasurer of Missouri, as the custodian of the Second Injury Fund, is liable for payment of medical care and expenses causally related to the accident of March 11, 1994."Scope of Review

In its review this court views the evidence and legitimate inferences that arise from that evidence in the light most favorable to the commission's award. Johnson v. City of Kirksville, 855 S.W.2d 396, 398 (Mo.App. 1993). It will not substitute its judgment on issues of fact for that of the commission. Id. The commission's award will be set aside only if there is no substantial evidence to support it or it is clearly contrary to the overwhelming weight of the evidence. Id. All doubts in a workers' compensation case are resolved in the favor of the claimant. Id.Issues Common to Both Appeals

TMI presents two points on appeal. The Second Injury Fund presents five points. The first point in each appeal raises the same issue. Point II of TMI's appeal and Point III of the Second Injury Fund's appeal are directed to related issues.

Point I in each appeal asserts the commission erred in finding TMI was subject to The Workers' Compensation Law. TMI and the Second Injury Fund contend claimant failed to prove TMI had five or more employees as required by section 287.030.1(3)² in order to be deemed an employer for purposes of Missouri's workers' compensation law and thereby be subject to it. See section 287.040.

Claimant began working for TMI in 1990. S.G. Van Winkle, who was usually referred to as "Spud," called claimant about driving for TMI. Claimant was in Springfield, Missouri, when he received the call. Mr. Van Winkle called him from Sulphur Springs, Texas. Mr. Van Winkle wanted him to drive for TMI. Claimant had his own truck at the time. He was told to go to Boonville, Missouri, and sign a lease and pick up a trailer that TMI had leased for his use. He did that. A document entitled "Lease and Agreement" was introduced in evidence as the "lease" claimant originally signed. S.G. Van Winkle was designated as "Lessee." The agreement provided for claimant to be compensated by payment of a percentage of gross revenue produced by the trips he made. It was for a term "beginning on Jan, [sic] 2, 1990 and ending on Jan. 2, 1993."

Claimant testified that the agreement pursuant to which he performed services for TMI changed between 1993 and 1994. Claimant explained, "I was working -- was working on percentage, and it switched over to mileage when I started driving his -- his own truck." The date of claimant's accident was March 11, 1994. It was a one-vehicle accident. Claimant was driving a truck that belonged to TMI. The truck struck a guardrail and embankment.

At the time of the accident, claimant was being paid 30 cents a mile. TMI paid for motels. Claimant was responsible for his own meals. He explained that he usually carried $300 of the company's money for out-of-pocket expense; that when that money was used up, TMI would replace it.

During the time claimant worked for TMI, he had no other sources of income. Claimant would get assignments to haul particular loads from Mr. Van Winkle. He would call Mr. Van Winkle for instructions. Claimant would be gone "from three to as much as six weeks." He called the Texas office once a day to get instructions. He would be told where to go and directed what route to travel.

Claimant was asked if he was aware of other drivers in March of 1994 who were driving or hauling loads for TMI. He answered that he was and named Maynard Miller and Dewey Tomlinson. He added George Cole and himself. He stated that, to his knowledge, each driver was given assignments in the same manner he was. Claimant also had dealings with Louise Van Winkle. He said she occasionally dispatched and was the bookkeeper. At times claimant's son, Kevin Wilmeth, drove for TMI. Paul Smith had also worked for TMI as a driver.

Claimant testified that Mr. Van Winkle told him a disability insurance policy was being provided "in lieu of Workmen's Comp in Texas." Claimant explained, "He told me according to Texas law, he could either have Workmen's Comp or an insurance policy, and he opted for the insurance policy." He said, "Spud figured he was obligated to cover his employees with Workmen's Comp. That's the reason why he done it. That's what he told me."J. Nicholas Tegenkamp testified by deposition. He is employed with North American Special Risk Associates, Inc. (North American), the managing general underwriter for Monumental Life Insurance Company (Monumental Life). A subsidiary of North American, NASRA TPA, Inc., is third-party administrator on behalf of Monumental Life. Mr. Tegenkamp is vice-president of operations and chief financial officer of North American. He testified that a group-accident policy had been sold to TMI through one of North American's brokers, Templeton Southwest Agency. The agent's name who sold the policy was Bill Helmick. It was effective from April 7, 1993, to October 1, 1994.

Mr. Tegenkamp explained that the policy sold to TMI was not a workers' compensation policy. The policy states that it is an occupational-accident policy, not a workers' compensation policy. He provided two forms submitted by TMI that he referred to as "employee census forms." One was for April 8, 1994. The other was for March 24, 1993. He also provided a copy of TMI's application for insurance. He explained the application would have been completed by the agent who sold the policy and the insured. It was signed by TMI's president, S.G. Van Winkle, and witnessed by the agent, Bill Helmick. The application form includes the following statement:

In applying for this coverage, the applicant acknowledges that:

This policy is an employee benefit and does not provide Workers' Compensation Insurance Coverage.

This policy will not provide a legal defense nor indemnification for any suit brought against the employer for any reason.

. . .

The applicant has chosen not to subscribe to Workers' Compensation in the State of Texas.

The application form lists "TMI, Inc[.]" in the blank provided for "Employer's Name." It states the "Nature of Business" as "Truck Man." It states there are five full-time employees. It is dated "4-6-93."

The March 24, 1993, employee census form lists the following persons with the following dates of hire:

Dick Wilmuth [sic] 1988

Kevin Wilmuth [sic] 1988

Maynard Miller 5-92

Paul D. Smith 1-93

Ann Louise Van Winkle 1988

The April 8, 1994, employee census form lists the following persons with the following dates of hire:

Dick Wilmuth [sic] 1988

Kevin Wilmuth [sic] 1988

Maynard Miller 5-92

Paul Smith 1-93

Louise Van Winkle 1988

Dewey Tomlinson 3-94

It also has a column with the heading "Terminated." The date 5-94 appears in that column across from the name "Kevin Wilmuth [sic]." The date 3-93 appears in the column across from the name "Paul Smith."

Bill Helmick, the insurance agent who sold TMI the Monumental Life occupational-accident policy, testified by deposition. He completed the application form for the insurance policy on March 15, 1993, and sent it to Mr. Van Winkle. Mr. Van Winkle signed the form April 6, 1993. The information on the form about the number of employees was obtained from Van Winkle.

The issue with respect to Point I in each appeal is two-fold -- the employment status of claimant and the number of persons who worked for TMI. In order to be subject to The Workers' Compensation Law, TMI had to have five employees. TMI argues that claimant was an independent contractor and, even if claimant were determined to be an employee, his evidence did not establish that the other persons who performed work for TMI were employees.

"The facts of each case control whether the claimant is an independent contractor or an employee." Gaston v. J. H. Ware Trucking, Inc., 849 S.W.2d 70, 73 (Mo.App. 1993). The issue of whether claimant was an employee and whether TMI was shown to have five employees is a question as to the sufficiency of the evidence. When passing on the sufficiency of the evidence in a...