Randy Davidson v. Butler County Fire Protection District

The findings of fact and stipulations of the parties were accurately recounted in the award of the administrative law judge and are hereby adopted and incorporated in this award by the Commission.

First of all, it is important to note that employee's injury occurred on July 24, 2005. Therefore, this case falls under the purview of the pre-2005 amendments to the Missouri Workers' Compensation Law, as the 2005 amendments did not go into effect until August 28, 2005.

As the administrative law judge correctly stated, the primary issue submitted for consideration under the facts of this case is whether or not an injured employee can receive second job wage loss benefits under § 287.220.9 RSMo (2000) when his secondary wage loss is derived from employment as an owner-operator of a motor vehicle.

Section 287.220.9 RSMo provides the following:

Any employee who at the time a compensable work-related injury is sustained is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer's employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury....

Section 287.020.1 RSMo defines the term "employee," for workers' compensation purposes, as follows:

The word 'employee' as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations....The word 'employee' shall not include an individual who is the owner and operator of a motor vehicle which is leased or contracted with a driver to a for-hire common or contract motor vehicle carrier operating within a commercial zone....

Lastly, § 287.030.1(1) RSMo defines the term "employer" for workers' compensation purposes. That section defines "employer" in pertinent part, as:

Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a

Enployee: Randy A. Davidson

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deceased employer, and every other person, ... using the service of another for pay....

The administrative law judge found that because employee's position with the Butler County Fire Protection District met the definition of "employee," as defined by § 287.020.1 RSMo, employee is entitled to second job wage loss benefits from the Second Injury Fund. The administrative law judge reasoned that, under § 287.220.9 RSMo, an employee need only meet the definition of "employee" with one employer to qualify for second job wage loss benefits and, therefore, his "employee" excluded status of owner-operator with Randy Davidson Trucking does not exempt him from receiving second job wage loss benefits. We disagree with the administrative law judge's conclusion.

Section 287.220.9 RSMo specifically states that in order to be eligible for second job wage loss benefits, an employee who suffers a compensable work-related injury must be "employed by more than one employer." Further, in discussing the Second Injury Fund's liability, § 287.220.9 RSMo states that Second Injury Fund liability shall be derived from "any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur...."

While there is no argument that employee was an "employee," as defined by § 287.020.1 RSMo, of Butler County Fire Protection District when injured, the aforementioned statutory language clearly requires that an individual be an employee of a second employer in order to qualify for second job wage loss benefits. Employee did not prove that he was employed by a second employer. Further, § 287.020.1 RSMo unequivocally excludes owner-operators of motor vehicles from the definition of "employee."

In *Emery v. Wal-Mart Stores, Inc.*, 976 S.W.2d 439, 449 (Mo. banc 1998), the Missouri Supreme Court stated that "when statutory language is clear, effect to the language must be given as written." In finding that once an individual qualifies as an employee of some employer, they automatically qualify as an employee for second job wage loss purposes, the administrative law judge did not give effect to the statutory language as written. The administrative law judge's interpretation of § 287.220.9 RSMo implies an illogical intent on the part of the legislature. Giving plain meaning to the language in § 287.220.9 RSMo, makes clear that the legislature intended for second job wage loss benefits to only apply to individuals that meet the definitional requirements of "employee," as defined by § 287.020.1 RSMo, for two different "employers," as defined by § 287.030.1 RSMo. In this case, employee only proved an employment relationship with one employer and, therefore, is not entitled to second job wage loss benefits from the Second Injury Fund.

For the foregoing reasons, we reverse the administrative law judge's award and find that employee is not entitled to second job wage loss benefits.

The award and decision of Administrative Law Judge Gary L. Robbins, issued July 6, 2009, is attached hereto for reference.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

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 Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

John J. Hickey, Member

Employee: Randy A. Davidson

Injury No. 05-074912

Dependents: N/A

Employer: Butler County Fire Protection District

Additional Party: Second Injury Fund

Insurer: Missouri Employer's Mutual Insurance Company

Hearing Date: May 13, 2009

Checked by: GLR/kh

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? July 24, 2005
5. State location where accident occurred or occupational disease contracted: Butler County, Missouri
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? Yes

On, May 13, 2009, the employee, Randy A. Davidson, appeared in person and by his attorney, Jeffrey P. Gault, for a hearing for a final award. The employee had