Michael Klein v. Community Asset Management Company (CAMCO) / Colonial Village Partnership, LP

decedent, without any withholding; (4) Michael Klein, the decedent, had various employees assisting him in performing work and/or services at the Colonial Village Apartments; (5) Michael Klein set his own work schedule for himself and his employees at Colonial Village Apartments; (6) Michael Klein owned the equipment he used while performing services at Colonial Village Apartments; and (7) Michael Klein died due to an accident while performing services at Colonial Village Apartments on May 28, 2003.

The only witness to present live trial testimony was Pamela Krause, mother of dependent. In summary fashion, Ms. Krause testified to the following: the dependent, her son, was born July 17, 1996; the only person with whom Ms. Krause had sexual relations with for the year next preceding her son's birth was the decedent; Ms. Krause and decedent never married; and Ms. Krause testified that claimant's Exhibit A, a certified birth certificate of her son, contained accurate information.

Between March 25, 2003 and May 28, 2003, Ms. Krause observed decedent performing maintenance duties at Colonial Village Apartments; Ms. Krause also occasionally performed labor and services at the apartment complex at the request of decedent and she received remuneration from the decedent for labor performed; Ms. Krause did not have access to any personal or business bank accounts of decedent; Ms. Krause was aware that decedent did not file state or federal income taxes for several years; Ms. Krause did not possess any documentation concerning remuneration decedent received for performing labor and/or services at the apartment complex; Ms. Krause had no knowledge of the existence of any payroll records concerning decedent, and Ms. Krause did not have any knowledge concerning expenses incurred by decedent in the operation of his business.

Ms. Krause testified that the decedent performed the following maintenance duties at the apartment complex: cutting grass; installing bathroom/toiletry items; various repairs such as installing a new door; repairing a faucet; repairing a kitchen countertop; painting; etc. The activities performed by Ms. Krause were cleaning apartments for decedent in order to ready the apartment for a would be tenant.

Decedent and Ms. Krause also both worked at what she termed, other CAMCO facilities at other locations; Ms. Krause further testified that decedent's business was remunerated by CAMCO for services performed.

Dependent offered into evidence Exhibits B-F which were admitted without objection. Dependent offered Exhibit A, the certified birth certificate of the dependent, and employer/insurer objected to its admission. The administrative law judge made no ruling as to the admissibility of Exhibit A.

As to the instant appeal, Exhibit A, the certified birth certificate of the dependent and Exhibit F, a summary of payments made by CAMCO to decedent, are the most relevant for purposes of this appeal.

Section 287.240 (4)(b) RSMO provides in pertinent part as follows:

The word 'dependent' as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his or her wages at the time of the injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee, and any death benefit shall be payable to them to the exclusion of other total dependents:

A natural, posthumous, or adopted child or children, whether legitimate or illegitimate, under the age of eighteen years, or over that age if physically or mentally incapacitated from wage earning, upon

the parent legally liable for the support or with whom he, she, or they are living at the time of the death of the parent. . . .

Employer/insurer contends that the minor, Austin Klein, failed to prove that he was a dependent of the decedent, Michael Klein, as defined by the provisions of section 287.240 RSMo, as paternity was not established.

The Uniform Parentage Act provides means to which the issue of paternity may be determined. VAMS, sections 210.817-210.852. Furthermore, where there is no presumed paternity under the Uniform Parentage Act, the issue of paternity is ripe for decision prior to any workers' compensation order. VAMS sections 210.817-210.852.

The Commission, as well as the Division of Workers' Compensation (Division), is precluded from determining paternity. Poole Truck Lines, Inc. v. Coates, 833 S.W.2d 876 (Mo. App. E.D. 1992); Mikel v. Pott Industries, 896 S.W.2d 624 (Mo. banc 1995).

Claimant's Exhibit A, a certified copy of the birth certificate of dependent, was offered into evidence subject to objection made by the employer/insurer. The objection made by the employer/insurer was that the certified copy of the birth certificate did not comply with the statutory provisions of section 490.692 RSMo, concerning the offering of business records into evidence. The Commission overrules the objection made by employer/insurer and admits into evidence claimant's Exhibit A. The Commission is of the opinion that the statutory provisions of section 193.255.2 RSMo supersede the business records statute requisites contained in 490.692 RSMo. Section 193.255.2 RSMo provides as follows:

A certified copy of a vital record or any part thereof, issued in accordance with subsection 1 of this section, shall be considered for all purposes the same as the original and shall be prima facie evidence of the facts stated therein, provided that the evidentiary value of a certificate or record filed more than one year after the event, or a record which has been amended, shall be determined by the judicial or administrative body or official before whom the certificate is offered as evidence.

There was no evidence adduced at the hearing refuting the authenticity of the certified copy of dependent's birth certificate, claimant's Exhibit A. The mother of the dependent testified that all the information contained in claimant's Exhibit A was correct, including the decedent, Michael W. Klein, shown to be the father of Austin Klein.

The Commission, in reviewing the provisions of the Uniform Parentage Act as well as the statutes concerning vital statistics contained in Chapter 193, RSMo, is obligated to conclude that paternity has been properly determined. See sections 193.085 RSMo; 193.215 RSMo; 193.255 RSMo; and 210.823 RSMo. The Commission in concluding that minor dependent, Austin Klein, is the son of Michael Klein, decedent, is merely accepting the legal determination made pursuant to the Uniform Parentage Act.

It is clear that claimant's Exhibit A, dependent's birth certificate, could not include the name of the father, Michael Klein, unless either one of two events had occurred: there was an acknowledgement of paternity by the father; or paternity was determined by a court of competent jurisdiction or by an administrative order of the family support division. Section 193.085.7 RSMo. In reading sections 193.085 RSMo, 193.215 RSMo and 210.823 RSMo, in pari materia, the Commission can come to no other conclusion. The paternity of the dependent has been properly determined by law and the Commission is obligated to accept the proper determination.

Consequently, the minor child, Austin Klein, is a total dependent of the decedent, Michael Klein, as defined by section 287.240 (4)(b) and there is no evidence of any additional total dependent or total dependents eligible for workers' compensation death benefits.

B. Employment Relationship Between Michael Klein and CAMCO

Every employer subject to the provisions of Chapter 287 is liable to furnish compensation under the provisions of this chapter for death of an employee by accident arising out of and in the course of the employee's employment. Section 287.120 RSMo.

In the instant case, the dependent is not contending that there was a direct employer/employee relationship between CAMCO and Michael Klein. Rather, the dependent contends the employment relationship existed due to

the fact that the decedent qualified as a statutory employee pursuant to the provisions of section 287.040.1 RSMo.

Paraphrasing section 287.040.1 RSMo, three conditions must be met to qualify one as a statutory employee: (1) the work must be performed under contract; (2) the injury must have occurred on or about the premises of the employer; and (3) the injury must have occurred while performing work normally done in the usual course of business of the employer.

The presence of a contractual relationship between the employee and the employer is to be liberally construed. The contract does not have to specify the scope of the work to be performed or expressly delegate the employer's usual business activity to the contractor, and it does not need to be in writing. McGuire v. Tenneco, Inc., 756 S.W.2d 532 (Mo. banc 1988); Employers Ins. of Wausau v. Patton, 842 S.W.2d 208 (Mo. App. E.D. 1992). The contract may be express or implied, oral or written.