Clarence Krusen v. Maverick Transportation

telephone conversation between himself and a recruiter for the employer. This telephone conversation occurred approximately two weeks before employee's orientation with the employer in Arkansas. Employee was in Missouri when this telephone conversation took place. Employee testified that the recruiter for the employer, during this telephone conversation, told the following to the employee: "you got the job". Employee did not adduce any evidence corroborating this alleged statement.

The Vice President of Human Resources testified in behalf of the employer. As to the issue of the employer's employment practices and procedures, we find the testimony of the Vice President of Human Resources, cogent and probative, as well as more credible, trustworthy, persuasive and believable, when compared and contrasted to the testimony of the employee.

In summary fashion, the Vice President of Human Resources testified to the following: she was extremely familiar with the employment practices of the employer; she was adamant that no driver for the employer was ever hired or would be hired sight unseen; that the employer receives and processes applications for hire; once applications have been processed and completed, and driving requirements have been validated, a recruiter of the employer contacts any would-be applicant and extends an invitation to come to the employer's principal place of business in Arkansas, for pre-employment orientation. The employer's recruiters do not have any authority to hire an individual.

The Vice President of Human Resources further testified the employer's recruiter contacts an applicant and invites an applicant to come to Arkansas for pre-employment orientation; while in Arkansas the applicant must take and successfully complete a driving test; must pass a drug test; must pass a physical; must pass a road test; and complete all additional orientation prior to any employment or hiring.

In the case at bar, the exact same procedure was applicable, and any offer of employment was dependent upon the employee successfully participating in and completing the employer's orientation in Arkansas. In the case at bar, after employee successfully completed the orientation in Arkansas, an employment contract was executed in Arkansas.

As stated above, the Commission finds the testimony of the Vice President of Human Resources more credible, persuasive and worthy of belief, as to the issue of employment. In light of this finding, the Commission does not find credible or worthy of belief the testimony of the employee that the recruiter allegedly told the employee that "you got the job"; and, consequently, render the fulfillment and completion of orientation in Arkansas meaningless.

Accordingly, the Commission finds that the employer never extended an unconditional offer of employment to the claimant as alleged; that the employee was only told to report to Arkansas for the completion of all necessary tests and orientation for employment; and it was only after employee arrived in Arkansas and successfully completed the various tests and orientation as described above, that the last act necessary to complete the contract to be performed was fulfilled. All of these activities/actions occurred in Arkansas, not in Missouri.

Accordingly, the last act necessary to complete the employment contract was performed in Arkansas and the Missouri Workers' Compensation Law does not apply.

The award and decision of Administrative Law Judge Holden, issued January 3, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of October 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be reversed.

The Commission majority concludes that the last act necessary to form employee's contract of employment occurred in Arkansas. I disagree. The facts of this case are similar to the facts in Whiteman v. Del-Jen Constr., Inc., 37 S.W.3d 823 (Mo. App. 2001).

Courts deem a contract to have been made where the parties to the contract perform the last act necessary to complete the contract. The last act necessary for the formation of the employment contract in this case was Mr. Whiteman's acceptance of Del-Jen's offer of employment. Where an applicant accepts an offer of employment over the telephone while the applicant is in Missouri, the employment contract is deemed to have been made in Missouri.

Whiteman, 37 S.W.3d at 831 (Mo. App. 2001)(citations omitted).

Employee testified that, two weeks before reporting for training in Arkansas, he had a telephone conversation with employer's recruiter while employee was in Missouri. During the phone conversation, employer's recruiter informed employee "[y]ou've got the job." Employee immediately accepted recruiter's offer of employment. Accordingly, the last act necessary to complete the employment contract occurred in Missouri. Id.

The Commission majority finds that employee adduced no evidence to corroborate the recruiter's alleged statement. Employee produced a multitude of evidence tending to corroborate the statement:

- Employee quit his job at Ford after the conversation;

- Employer began paying employee June 17, 2002 - before the written contract was signed;

- Employer reported employee's hire date as June 17, 2002, on the Report of Injury;

- Employer reported employee's hire date as June 17, 2002, on the wage statement.

Employer offered no evidence to rebut employee's testimony regarding recruiter's statement.

As in the Whiteman case, employer's own records, which identify employee's hire date as June 17, 2002, belie employer's assertion that employee's contract was not made until June 21, 2002.

I find credible employee's testimony that the recruiter told employee he had the job - an unconditional job offer -and that employee accepted recruiter's job offer during the telephone conversation.

The majority places undue emphasis on employer's requirement that employee pass a driving test and DOT physical. Employer's requirement that employee meet certain qualifications to maintain his employment is not inconsistent with the formation of a contract during the telephone conversation. Employee's failure to meet the qualifications is merely a condition subsequent which could divest employee of his employment. This conclusion is consistent with employee's testimony that employer would fire him if he failed to pass the driver's test administered during his orientation/training. This conclusion is also consistent with employer adding employee to the payroll and beginning to pay him on June 17, 2002.

Based upon the foregoing, I conclude that the Division of Workers' Compensation has jurisdiction to consider employee's claim.

Employee credibly testified that he suffered an injury by accident arising out of and in the course of his

employment. Employee has shown he is in need of further medical treatment to cure and relieve the effects of his work injury. Employee has shown that he is unemployable in his current condition and is entitled to temporary total disability benefits.

I would reverse the award of the administrative law judge. I would issue a temporary award of medical treatment, temporary total disability, and costs as required by § 287.203 RSMo.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Employee: Clarence Krusen

Injury No. 02-141643

Dependents: N/A

Employer: Maverick Transportation

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Liberty Mutual Fire Insurance Company

Hearing Date: $\quad 10 / 20 / 04$

Checked by: MEH

1. Are any benefits awarded herein? NO
2. Was the injury or occupational disease compensable under Chapter 287? NO
3. Was there an accident or incident of occupational disease under the Law? NO
4. Date of accident or onset of occupational disease: N/A
5. State location where accident occurred or occupational disease was contracted: MICHIGAN
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? N/A
9. Was claim for compensation filed within time required by Law? YES
10. Was employer insured by above insurer? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A