Thomas Roemisch v. Greene County, Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-079319

Employee: Thomas M. Roemisch

Employer: Greene County, Missouri

Insurer: Missouri Association of Counties c/o Gallagher Bassett Services

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms and adopts the award and decision of the administrative law judge dated September 23, 2010.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued September 23, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $14^{\text {th }}$ day of April 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED

Alice A. Bartlett, Member

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 (ALJ) should be reversed and the respondent in this case should not be considered an employee under § 287.020.1 RSMo.

Under § 287.020.1 RSMo, an employee is "every person in the service of any employer, ... express or implied, oral or written, or under any appointment or election...." In no way can it be said that by abiding by the legal summons to appear for jury duty respondent became an employee.

The question of whether a potential juror is an employee of the county under Missouri Workers' Compensation Law has not been decided by Missouri Courts. However, several other jurisdictions have rejected the argument. In Metropolitan Dade County v. Glassman, 341 S.O.2d 995 (Fla. 1977), the claimant was not chosen for jury duty, but was ordered to return the following day. Id. at 996. Upon return, the claimant suffered a skull fracture after being knocked down by a crowd leaving an elevator. Id. In reversing the Florida Industrial Relations Commission's award of benefits to the claimant, the Supreme Court of Florida stated, "[c]ourts have no power to extend the provisions of the Workmen's Compensation Act to classes not clearly contemplated by it. There is no class of county employees that may be compared to a citizen called on to perform such a duty as is involved [here]." Id. The court then pointed out that this is the view in New Jersey, North Carolina, Michigan, New Mexico, Colorado, and Ohio.

In this case, the ALJ examined the definition of "employee" to determine whether or not respondent would qualify as an employee of Greene County on February 13, 2007, when he fell in the parking lot outside of the Greene County Courthouse prior to appearing/checking in for jury duty. Much focus was given to the phrase "in the service of" that is contained in the definition of employee. In interpreting said phrase, the ALJ pointed to the definition of "in the service of" contained in Howard v. Winebrenner, 499 S.W.2d 389 (Mo. 1973). In Howard, the Court defined "in the service of" as "the performance of labor for the benefit of another." Id. at 395. The ALJ pointed out that this interpretation appears to be consistent with the plain and ordinary meaning of the word and, thus, consistent with statutory construction. The ALJ found that jurors of Greene County assume a role that benefits and provides valuable labor for Greene County and, therefore, concluded that respondent was an employee of Greene County when the accident occurred. I disagree.

Respondent provided no labor for the benefit of Greene County. On February 13, 2007, respondent did not do anything other than have his jury duty postponed until July 30, 2007. Respondent did not appear in any designated area where jurors would collectively meet prior to going through the selection process, nor was respondent subject to voir dire in February 2007. For the foregoing reasons, it is illogical to conclude that he met the definition of "in the service of" as interpreted in Howard.

The ALJ also concluded that a juror is "appointed" because they are selected from a pool of qualified voters, and summoned to appear and provide jury service for Greene County. In this case, respondent was not appointed, as contemplated by § 287.020.1 RSMo. His name was picked from a random list of qualified potential jurors. Even if he had been selected to serve jury duty, he still would not have been considered appointed because he would not have been designated to perform the duties of an office as the term "appointed" generally implies.

For the foregoing reasons, I disagree with the administrative law judge's conclusion that respondent is an employee for purposes of $\S 287.020 .1$ RSMo. As such, I would reverse the temporary or partial award of the administrative law judge.

I respectfully dissent from the decision of the majority of the Commission.

Alice A. Bartlett, Member

Employee: Thomas M. Roemisch

Injury No. 07-079319

Dependents: N/A

Employer: Greene County, Missouri

Insurer: Missouri Association of Counties c/o Gallagher Bassett Services

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

Hearing Date: August 12, 2010

Checked by: LTW

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? This issue is deferred for further proceedings.
3. Was there an accident or incident of occupational disease under the Law? This issue is deferred for further proceedings.
4. Date of accident or onset of occupational disease: Alleged accident occurred on February 13, 2007
5. State location where accident occurred or occupational disease contracted: Alleged accident occurred in Greene 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? This issue is deferred for further proceedings.
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 happened or occupational disease contracted: As a juror, summoned to appear for jury duty, Employee exited his vehicle and began walking toward the courthouse with his hands placed in the pockets of his jacket, which he kept in his pockets to keep warm. While walking to the courthouse and still in the parking lot owned or controlled by Employer, Employee slipped on ice in the parking lot and fell to the ground, falling directly on concrete and hitting his right elbow. The adjudication of whether these facts constitute a compensable accident under Section 287.020, RSMo is deferred.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: The slip and fall on ice caused Employee to sustain an injury to his right upper extremity. The adjudication of whether the slip and fall is a compensable injury under Section 287.020, RSMo is deferred.

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None
3. Value necessary medical aid not furnished by employer/insurer? This issue is deferred for further proceedings.
4. Employee's average weekly wages: This issue is deferred for further proceedings.
5. Weekly compensation rate: This issue is deferred for further proceedings.
6. Method wages computation: N/A

1. Amount of compensation payable: This issue is deferred for further proceedings.

TOTAL: N/A

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

Employee: Thomas M. Roemisch

Injury No. 07-079319

Dependents: N/A

Employer: Greene County, Missouri

Insurer: Missouri Association of Counties c/o Gallagher Bassett Services

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on August 12, 2010. The parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about August 24, 2010.

The employee, Thomas M. Roemisch, appeared personally and through his attorney, Ann R. Littell Mills, Esq. The alleged employer, Greene County, Missouri (a governmental entity), and its insurer, Missouri Association of Counties, appeared through their attorney, Jared P. Vessell, Esq. The Second Injury Fund did not appear at the proceeding by agreement of the parties, and in light of the employee seeking only a Temporary or Partial Award.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about February 13, 2007, Greene County, Missouri (a governmental entity) was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Association of Counties c/o Gallagher Bassett Services (TPA).

(2) The alleged employment and accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

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

(4) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(5) Temporary disability benefits have not been provided to the claimant.

(6) The employer and insurer have not provided medical treatment to the claimant.

The parties further stipulated that the sole issues to be resolved by this hearing include:

(1) Whether the claimant Thomas Roemisch was an employee of Greene County, Missouri (a governmental entity) on or about February 13, 2007?

(2) Whether the claimant sustained an accident on or about February 13, 2007; and, if so, whether the accident arose out of and in the course of employment?

(3) Whether the alleged employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\ 49,256.38 ?

(4) What is the applicable compensation rate?

(5) Whether the claimant is entitled to temporary disability benefits? (The claimant seeks payment of temporary total disability compensation for the periods of February 13, 2007 to March 20, 2007, and September 12, 2007 to September 20, 2007?)

The parties jointly offered for admission into evidence the following joint exhibit:

Exhibit A-1 Deposition of Anthony Rodebusch

Joint Exhibit A-1 was received and admitted into evidence.

The claimant Thomas Roemisch testified at the hearing in support of his claim. Also, the claimant offered for admission the following exhibits:

Exhibit A

(Not Offered for Admission)

Exhibit B

Copies of Invoices (Medical Expenses)

Exhibit C

Medical Records

Exhibits B and C were received and admitted into evidence.

The alleged employer and insurer did not p