Wilmot v. Bulman

• Decision Date: 27 September 1995
• Docket Number: 19953,Nos. 19973,s. 19973
• Citation: 908 S.W.2d 139
• Parties: Linda WILMOT, Widow, and Christine, Jerome and Daniel Wilmot, Dependents of Thomas A. Wilmot, Deceased, Respondents, v. Kathryn BULMAN, d/b/a Exterior Design, Employer-Appellant, and Missouri State Treasurer, Custodian of the Second Injury Fund, Appellant.
• Court: Missouri Court of Appeals

Page 139

908 S.W.2d 139

Linda WILMOT, Widow, and Christine, Jerome and Daniel Wilmot, Dependents of Thomas A. Wilmot, Deceased Respondents, v. Kathryn BULMAN, d/b/a Exterior Design, Employer-Appellant and Missouri State Treasurer, Custodian of the Second Injury Fund, Appellant.

Nos. 19973, 19953.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 27, 1995.

Joe W. Coleman, Mark S. Gunnison, McDowell, Rice & Smith, P.C., Kansas City, for Kathryn Bulman, employer-appellant.

Terry J. Brady, Jeffrey M. Pfaff, Gage & Tucker, L.C., Kansas City, for appellant, Mo. State Treasurer, Custodian of the Second Injury Fund.

Frank Eppright, Eppright and Schoeppey, Kansas City, Elizabeth Diane Baker, Connaughton, Boyd & Kenter, P.C., Kansas City, for respondents.

MONTGOMERY, Presiding Judge.

Kathryn Bulman (Bulman) and the Missouri State Treasurer, Custodian of the Second Injury Fund (SIF), both appeal a workers' compensation award to the surviving spouse and minor dependents of Thomas A. Wilmot, deceased. Mr. Wilmot was a siding applicator and became associated with Exterior Design, Inc. (EDI) in 1986. He died on November 10, 1988, when he fell from a roof while installing vinyl siding on a home in Rolla, Missouri.

A majority of the Labor and Industrial Relations Commission (Commission) found that Mr. Wilmot died as a result of an accidental injury which arose out of and in the course and scope of his employment with EDI. The Commission also found Bulman personally liable, along with EDI, as an employer because of her attempts "to hide under the corporate cloak to perpetrate a fraud." Because EDI was uninsured, the Commission found SIF liable to claimants under § 287.220 ¹ for weekly benefits and funeral expenses.

In her appeal, Bulman contends that the record lacks sufficient competent evidence to warrant piercing the corporate veil of EDI and holding her personally liable. SIF's appeal claims that (1) Mr. Wilmot was an independent contractor, not an employee as found by the Commission, and (2) the evidence does not support the award of weekly benefits to the claimants because § 287.220.5 only imposes liability on SIF for "fair, reasonable and necessary expenses in the manner required in Sections 287.240 and 287.241."

Appellate review of the Commission's award is governed by § 287.495, RSMo 1994, which reads, in pertinent part:

[I]n the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

In Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993), the court said:

Under Article V, § 18, of the Missouri Constitution we review the decision of the Commission to see that it is supported by competent and substantial evidence on the record as a whole. In that review, we defer to the Commission on issues involving the credibility of witnesses and the weight to be given testimony, and we acknowledge that the Commission may decide a case "upon its disbelief of uncontradicted and unimpeached testimony." Questions of law, of course, are the proper subject of our review. Section 287.495.1, RSMo 1986. (Citation omitted).

The award of the Commission may be overturned by this court only if it is not supported by substantial evidence or if it is clearly contrary to the overwhelming weight of the evidence. This court, viewing the record in the light most favorable to the findings of the Commission, must determine whether the Commission could have reasonably made its findings and award. Johnson v. City of Duenweg Fire Dep't, 735 S.W.2d 364, 366 (Mo. banc 1987).

SIF'S APPEAL

SIF first claims that the evidence fails to support the conclusion that Mr. Wilmot was an employee rather than an independent contractor. The injured person's employment status in a workers' compensation case usually involves a question of law which this Court may correct within our province of review. Miller v. Hirschbach Motor Lines, Inc., 714 S.W.2d 652, 654-55 (Mo.App.1986). The facts of each case control whether the claimant is an employee or an independent contractor. Gaston v. J.H. Ware Trucking, Inc., 849 S.W.2d 70, 73 (Mo.App.1993).

Here, Mr. Wilmot worked exclusively for EDI as a siding applicator for almost three years. Robert Koss, a co-worker with Mr. Wilmot, testified that EDI would terminate an applicator for "moonlighting" with a competitor. While Koss worked with Mr. Wilmot, EDI worked approximately eight siding crews which contained two or more persons per crew.

EDI gave Mr. Wilmot a work order for each job. He was paid upon completion of the job according to the square footage involved. Applicators, like Mr. Wilmot, were not paid hourly, punched no time clock, received no vacation, no holiday pay, and no health insurance benefits.

Mr. Wilmot used his own vehicle to transport materials to and from the job site and generally furnished his own tools. Generally, he set his own work hours after consulting with EDI's customer. An EDI representative occasionally visited the job site but did not supervise Mr. Wilmot's work. EDI was mainly concerned about a job satisfactory to the customer, not the method of application.

For two years before his death, Mr. Wilmot filed tax returns which reported the income from EDI as a profit or loss from his business and took deductions for truck expense, travel, small tools and protective clothing.

The workers' compensation law, § 287.020.1, at the time in question, defined "employee" as "every person in the service of any employer ... under any contract of hire, express or implied, oral or written, or under any appointment or election...." The term "independent contractor" has no statutory definition. However, the following judicial definition is generally accepted:

"An 'independent contractor' is one who, exercising an 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."

Miller, 714 S.W.2d at 656 (citing Vaseleou v. St. Louis Realty & Sec. Co., 344 Mo. 1121, 1126, 130 S.W.2d 538, 539 (1939)).

When the instant facts are viewed in light of these two definitions, no obvious outcome emerges. Arguably, as SIF contends, Mr. Wilmot could be viewed as an independent contractor because he generally performed each siding job according to his own methods, used his own tools, set his own hours, received payment by the job and was subject to little or no supervision. EDI was clearly most interested in the final result, i.e., a siding job satisfactory to the customer.

An Eastern District case, Cole v. Town & Country Exteriors, 837 S.W.2d 580 (Mo.App.1992), determined that the siding applicator there was an independent contractor because "claimant's group had full control over the installation and completed the installation at their own pace." Id. at 584. Cole has many facts in common with the instant case. However, Cole factually differs from the case before us in that Mr. Wilmot worked continuously and exclusively for EDI. In Cole, the independent contractor operated a firm that specialized in siding installation and performed jobs for various siding sales firms. For at least that reason, control or the lack thereof is not so obvious here as it was in Cole. Therefore, we conclude that our decision in this case is controlled by Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193 (Mo.App.1979).

Ceradsky held that when the evidence fails to clearly demonstrate the element of control in the work relationship, the "relative nature of the work test" determines employment status for purposes of workmen's compensation. Id. at 199.

Where by the very nature of the work relationship or other circumstance ... control is not conspicuous, the right to direct the detail of the work becomes only one indicium of control among others and the inquiry turns to the economic and functional relationship between the nature of the work and the operation of the business served. The inquiry, moreover, tends away from technical common law definitions to the public purpose of the scheme for workmen's compensation.

Id. at 198-99.

The purpose behind the workers' compensation law is addressed in Gaston, supra.

The purpose of workers' compensation is to make industry bear the burden of compensating employees for injuries arising out of the scope and course of employment. West v. Posten Constr. Co., 804 S.W.2d 743, 746 (Mo. banc 1991). The fundamental purpose of the law is to put on the industry the losses sustained by employees arising out of and in the course of employment. Wolfgeher v. Wagner Cartage Serv., Inc., 646 S.W.2d 781 (Mo. banc 1983). In addition, "the law is to be broadly and liberally interpreted ... and is intended to extend its benefits to the largest possible class ... any doubt as to the right of an employee to compensation should be resolved in favor of the injured employee." West, 804 S.W.2d at 746.

849 S.W.2d at 74.

Application of the nature of the work test requires consideration of these factors: (1) the character of the claimant's work or business--how skilled it is, (2) how much of a separate calling or enterprise it is, (3) to what extent it may be expected to carry its own accident burden and (4) 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...