Karen Eichelberger v. Gateway Preventive Dental Group, LLC.

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 14, 1998
5. State location where accident occurred or occupational disease was contracted: St. Louis City, Mo.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? No - Uninsured
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Tripped and fell over loose deck board. 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Left ankle 14. Nature and extent of any permanent disability: 40 % permanent partial disability of left leg above the ankle 15. Compensation paid to-date for temporary disability: None 16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Karen Eichelberger Injury No.: 98-123431 17. Value necessary medical aid not furnished by employer/insurer? \18,225.48 18. Employee's average weekly wages: \ 241.20 19. Weekly compensation rate: $\ 160.64 TTD/PPD 20. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 18,225.48

A hearing in this proceeding was held on April 26 and 27, 2004. The record was left open for the taking of additional deposition testimony. The deposition was filed on May 19, 2004. Both parties submitted proposed awards, the latter of which was received on June 20, 2004.

The parties stipulated that on or about October 14, 1998:

1. Gateway Preventive Dental Group, LLC, alleged employer, was operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the liability of Gateway Preventive Dental Group, LLC was uninsured;
3. the alleged employee's average weekly wage was 241.20;
4. the rate of compensation for temporary total disability was 160.64 and the rate of compensation for

permanent partial disability was $\ 160.64; and

1. the employee sustained an injury by accident occurring in St. Louis City, Missouri.

The parties further stipulated that:

1. the alleged employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;
2. no compensation has been paid; and
3. no medical expenses have been paid.

The issues to be resolved in this proceeding are: ${ }^{[1]}$

1. whether Karen Eichelberger, claimant herein, was an employee of Gateway Preventive Dental Group, LLC on October 14, 1998;
2. if claimant was an employee of Gateway Preventive Dental Group, LLC on October 14, 1998, whether the accident on that date arose out of and was in the course of that employment;
3. if employee sustained a compensable injury, whether she is entitled pursuant to Section 287.140 Mo. Rev. Stat. (1994) to be reimbursed for any medical expenses, which she may have incurred in obtaining treatment for his/her injuries;
4. if the employee sustained a compensable injury, whether he/she should be provided with any additional medical treatment for the injury; and
5. if employee sustained a compensable injury, whether and to what extent employee sustained any permanent partial disability which would entitle her to an award of compensation.

Claimant alleges that she was an employee of Gateway Preventive Dental Group, LLC (hereinafter referred to as "Gateway") on the date of the accident. Gateway contends that claimant was an independent contractor on the date of the accident.

Section 287.060 Mo. Rev. Stat. (1994) provides that "every employer and every employee" are subject to the provisions of Chapter 287 except as otherwise provided therein. Claimant must prove that he or she is within the provisions of the Workers' Compensation Act. Claimant must show that he or she is an employee of an employer both of whom are within the provisions of the Workers' Compensation Act. Huff v. Belford Trucking Co., 809 S.W.2d 71 (Mo. App. 1991); Hinton v. Bohling Van \& Storage Co., 796 S.W.2d 87 (Mo. App. 1990); Johnson v. Medlock, 420 S.W.2d 57 (Mo. App. 1967); Shireman v. Rainen Home Furnishers, Inc., 402 S.W.2d 64, 67 (Mo. App. 1966). The quantum of proof is reasonable probability. Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 199 (Mo. App. 1990); Banner Iron Works v. Mordis, 664 S.W.2d 770, 773 (Mo. App. 1983). "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986); Fischer at 198.

Section287.020.1 Mo. Rev. Stat. (1994) defines employee as "every person in the service of any employer, as defined in this chapter, under any contract of hire expressed or implied, oral or written, or under any appointment or election, including executive officers of corporations." Employer is defined by Section 287.030.1(1) as "every person ... using the service of another for pay...." These definitions are to be construed broadly in order to effectuate the intent of the legislature to afford compensation to an employee. Howard v. Winebrenner, 499 S.W.2d 389, 394 (Mo. 1973); Specie v. Howerton Electric Company, 344 S.W.2d 314, 315 (Mo. App. 1961).

The Supreme Court has defined an "independent contractor" as "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. However, if the employer has the right to direct the details of how the job is to be performed or the manner in which the work is to be done, then the status of the one doing the work is that of an employe[e]. and this is true though the employer does not exercise that right." Vaseleou v. St. Louis Realty \& Securities Co., 130 S.W.2d 538, 539-40 (Mo. 1939); Wilmot v. Bulman, 908 S.W.2d 139, 142 (Mo. App. 1995).

"[T]he law of master and servant and the relationship, duties, rights, and limitations arising out of the same" is applicable in construing and applying the statutory definition. Maltz v. Jackoway-Katz Cap. Co., 82 S.W.2d 909, 912 (Mo. 1934); Smith v. Thirty-Seventh Judicial Circuit 847 S.W.2d 755 (Mo. 1993); Howard, supra. The focus of the statutory definition is on service, which the courts have judicially construed to mean "controllable service". Maltz at 912; Hinton v. Bohling Van \& Storage Co., 796 S.W.2d 87, 89 (Mo. App. 1990). The most frequently applied test in determining the

existence of an employee-employer relationship is the "right of control" of the services of the alleged employee by the alleged employer. Lawson v. Lawson, 415 S.W.2d 313, 319 (Mo. App. 1967). Services has been defined as the "performance of labor for the benefit of another." Langley v. Imperial Coal Co., 138 S.W.2d 696, 698 (Mo. App. 1940). If the alleged employer has the right to control the means and manner of the performance of the services as distinguished from the results of the services, then an employee-employer relationship exists. Gass v. White Superior Bus Company, 395 S.W.2d 501, 504 (Mo. App. 1965); Hutchison v. St. Louis Altenheim, 858 S.W.2d 304, 305 (Mo. App. 1993). The central question is "whether the alleged employer had the right to control the employee's conduct of the work at the time of the accident." Huff v. Belford Trucking Co., 809 S.W.2d 71, 72 (Mo. App. 1991). In determining whether an employee-employer relationship exists, the courts have focused on the following factors: "the extent of control, actual exercise of control, duration of employment, right to discharge, method of payment for services, furnishing of equipment, whether the work is part of the regular business of the employer, and the contract of