Donald Roberts v. Leggett & Platt, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by §287.480 RSMo. Because of a potential due process problem, the Commission remanded this matter to the Division of Workers’ Compensation (Division) on June 24, 2008. In satisfaction of such remand, the Division conducted a supplemental hearing on October 14, 2008.

Having reviewed the evidence, read the briefs, and considered the entire record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to §286.090 RSMo, the Commission affirms the award and decision (Award) of Administrative Law Judge L. Timothy Wilson dated January 11, 2008. Except as indicated otherwise below, this Commission adopts the Findings of Fact as set forth in the Award. The Award is attached hereto and incorporated herein by reference.

Administrative Law Judge Wilson concluded that the Division had no jurisdiction over this case because its facts did not fit into any of the jurisdictional circumstances set forth in §287.110 RSMo. The administrative law judge’s decision, thus, denied employee’s claim for benefits. Employee filed an Application for Review with the Commission.

As indicated in the administrative law judge’s decision, §287.110 RSMo extends jurisdiction under the Missouri Workers’ Compensation Law to injuries received and occupational diseases contracted in three circumstances:

1. When such injuries are contracted in this state;
2. When such injuries are contracted outside this state under contract of employment made in this state (unless the contract provides for jurisdiction in another state); or
3. When such injuries are contracted outside this state but the employee’s employment was principally localized in this state.

We agree with the administrative law judge that neither one nor two above apply in the case before us.

Employee's injuries were sustained outside this state, and he had virtually no work contact with this state (other than his paycheck and about one meeting at corporate headquarters per year). He performed his work primarily in the northeast part of our country.

The question, then, is whether employee's contract of employment was made in Missouri or in another state. "As a rule, the place where the contract is made is considered to be the place where the offer is accepted or where the last act necessary to complete the contract is performed." Krusen v. Maverick Transportation, 208 S.W.3d 339, 342-343 (Mo.App. S.D. 2006).

The best evidence from the record establishes the following series of events (in chronological order) in connection with the contract created between employee and employer:

- During the time employee began his employment with employer in 2000, he lived in Noble, Arkansas.

- Employee met employer's witness, Roger Bougher, in Poplar Bluff, Missouri. Mr. Bougher did not offer employee a job. Mr. Bougher said he would talk with his supervisor and get back with employee.

- Employee recalled that Bill Ellis called employee at his home in Noble and offered a job during that conversation. Employee accepted. Employee understood, however, that there were still conditions on his employment. He knew he must pass a drug test.

- Mr. Bougher called employee at his home during this same period of time and said that employer was going to move forward with employee's employment if he was still interested, which employee indicated he was. Mr. Bougher told employee that employer would put the job offer, along with details, into a letter that it would send to employee.

- On August 3, 2000, employer sent a letter to employee's home in Noble offering him employment. The letter concluded with the statement, "Don, the above offer is contingent on the passing of a company drug test."

- Sometime after employee received this letter, he spoke with employer and accepted the offer. Since Noble had no facility for a drug test, the parties made arrangements for employee to take the drug test in Bettendorf, Iowa, where employee had family. Employee complied with these arrangements and passed his test.

- By the time employee came to employer's facility in Carthage for training, he was already considered an employee. Employer paid him his agreed salary for the two weeks of training time.

These facts are similar to those presented to the court in the Krusen case cited above. In Krusen, the employee claimed he had already accepted the truck driving position during conversations on the telephone in Missouri. But just as in our case, even if that were true, there were conditions precedent to the employee beginning his employment. Krusen had to go to Arkansas for orientation that included successfully completing a driving test, drug test, physical examination, and road test. The court found that the last act necessary for the completion of the contract was the employee's satisfaction of such conditions.

In fact, Missouri's courts have decided this jurisdictional issue for a number of truck drivers who were injured in other states but filed a claim under this state's Workers' Compensation Law. Another case very similar to the one at hand is Scott v. Elderlite Express, 148 S.W.3d 860 (Mo.App. E.D. 2004). In that case, the claimant testified that employer offered her the job and she accepted over the telephone while she was in Missouri. The best evidence in that case showed, though, like in our case, that such offer was contingent; the claimant still had to pass a drug test and a road test. Accordingly, the Scott court concluded that the contract was made in Indiana, where the last acts necessary for the formation of a contract -- drug and road tests -- were completed.

In the case at hand, both parties agreed that claimant had a condition he had to satisfy in order to become employed for employer. He had to take and pass a drug test. Employee completed that last step in Iowa,

not Missouri.

Thus, none of the jurisdictional requirements set forth in §287.110 RSMo were met in the facts of this case.

Accordingly, since employee has not proved the essential element of jurisdiction in this state, we affirm the administrative law judge's decision to deny him benefits.

The Commission affirms the decision of the administrative law judge dated January 11, 2008, and awards no compensation.

Given at Jefferson City, State of Missouri, this 25th day of March 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Don Roberts

Injury No. 02-147473

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Leggett \& Platt, Inc.

Additional Party:

N/A

1. Are any benefits awarded herein? NO
2. Was the injury or occupational disease compensable under Chapter 287? N/A
3. Was there an accident or incident of occupational disease under the Law? N/A
4. Date of accident or onset of occupational disease: N/A
5. State location where accident occurred or occupational disease was contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? N/A
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
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: -0-
16. Value necessary medical aid paid to date by employer/insurer? -0-
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages:
19. Weekly compensation rate: $329.42
20. Method wages computation: STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: -0-

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

1. Second Injury Fund liability: NO

Total: -0-

1. Future requirements awarded: NO

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Don Roberts

Injury No. 02147473

Dependents: N/A

Employer: Leggett \& Platt, Inc.

Additional Party:

Second Injury Fund

Insurer: United States Fidelity \& Guaranty

The above-referenced workers' compensation claim, which involved the joining of two workers' compensation cases for hearing, was heard before the undersigned Administrative Law Judge on October 22, 2007. The parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about November 28, 2007.

The employee, Donald Roberts, appeared personally and through his attorney, Ronald Caimi, Esq. The employer, Leggett \& Platt, Inc., and its insurer, United States Fidelity \& Guaranty Company, appeared through their attorney, Ronald Sparlin, Esq. The Second Injury Fund appeared through its attorney, Christina Hammers, Assistant Attorney General. (The Second Injury Fund is an additional party in Injury No. 02151658; but it is not a party in Injury No. 02-147473.)

The parties entered into a stipulation of facts in Injury No. 02-151658. The stipulation is as follows:

(1) On or about April 1, 2002, Leggett and Platt, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by United States Fidelity \& Guaranty Company.

(2) On the alleged injury date of April 1, 2002 Donald Roberts was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged accident occurred in Jasper County, Missouri. The parties agree to venue lying in Joplin (Newton) County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section, 287.420, RSMo.

(6) At the time of the alleged accident the employee's average weekly wage was sufficient to allow a compensation rate of $\ 329.42 for temporary total and permanent disability compensation.

(7) The employer and insurer have not provided medical treatment or temporary disability compensation to the employee.

The issues to be resolved by hearing in Injury No. 02-151658 include:

- Whether the Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo?

- Whether the claimant sustained an accident on or about April 1, 2002; and, if so, whether the alleged accident arose out of and in the course of employment?

- Whether the alleged accident of April 1, 2002 caused the injuries and disabilities for which benefits are now

- Whether the employee sustained any permanent disability