Maribel Vega-Rivera v. Hyatt Corporation d/b/a Hyatt Regency Crown Center

Employer filed an Application for Review alleging the administrative law judge erred: (1) in awarding benefits to employee; (2) in finding employee was an "employee" under the Missouri Workers' Compensation Law; (3) in finding employee sustained an injury arising out of and in the course of employment and that that employment was the prevailing factor in the employee's injury and resulting disability; (4) in finding employee sustained a disability to each upper extremity; (5) in assigning a load factor for permanent disability in contravention to strict construction of the Missouri statute; (6) in finding employee entitled to payment of medical aid in that the benefit was not authorized, was paid through employee's private health insurance that was funded by the employer, and the amount found by the administrative law judge was incorrect; and (7) in finding employee entitled to temporary total disability benefits.

We affirm the award of the administrative law judge as supplemented herein.

Employee was working as an "employee" of employer for purposes of section 287.020, RSMo Employer alleges employee is an illegal alien and that she was therefore not an "employee" of employer for purposes of the Missouri Workers' Compensation Law. We write this supplemental decision to make clear that we consider employee covered under the statute, regardless of her alleged illegal status. Section 287.020.1, RSMo, defines "employee" 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. Except as otherwise provided in section 287.200, any reference to any employee who has been injured shall, when the employee is dead, also include his dependents, and other persons to whom compensation may be payable. The word "employee" shall also include all minors who work for an employer, whether or not such minors are employed in violation of law, and all such minors are hereby made of full age for all purposes under, in connection with, or arising out of this chapter. The word "employee" shall not include an individual who is the owner, as defined in subsection 43 of section 301.010, and operator of a motor vehicle which is leased or contracted with a driver to a for-hire motor carrier operating within a commercial zone as defined in section 390.020 or 390.041 , or operating under a certificate issued by the Missouri department of transportation or by the United States Department of Transportation, or any of its subagencies.

It was employee's burden to present evidence to show she was an "employee" for purposes of the Law. Bethel v. Sunlight Janitor Service, 551 S.W.2d 616, 620 (Mo. 1977). Employee testified that she worked for employer ${ }^{1}$ for twelve years as a

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[^0]: ${ }^{1}$ Employer concedes it is an "employer" as defined in section 287.030, RSMo.

Improvee: Maribel Vega-Rivera

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housekeeper. Employee worked from 8:00 to 4:00 cleaning rooms, changing beds, and scrubbing bathrooms. Employer paid employee about $1,200 bi-weekly for her services. Clearly, employee, a "person," was "in the service of" employer, as she was changing employer's beds and scrubbing employer's bathrooms, and she was subject to supervision by an agent of employer in the performance of these duties. Employee's regular provision of services in exchange for regular payment also indicates the existence of a "contract of hire," as there is no indication employee was working for employer for purposes of her own enjoyment or edification irrespective of any agreement that she be paid for her services. This evidence is sufficient to satisfy employee's burden, as the owner-operator exclusion is not at issue in this matter.

But employer alleges employee cannot come within the definition of "employee" under section 287.020.1, RSMo, because she is an illegal alien. We view employer's allegation that employee is an illegal alien as presenting an affirmative defense. "The burden of establishing any affirmative defense is on the employer." Section 287.808 RSMo. It was therefore employer's burden to prove that employee was, in fact, an illegal alien during the relevant time periods. We note that employer has failed to cite us to any authority that supports its contention that employee's testimony, on its face, means she is an illegal alien. Employer cites 8 U.S.C. 1546(b), but this section does not deal with the issue whether an individual is an illegal alien, but rather prohibits employees from working under false documents. This section of the United States Code does nothing to aid our analysis as to whether employee was an illegal alien when she sustained an occupational disease while working for employer, and employer fails to provide any other citation to legal authority. To the extent employer asks us to comb the United States Code on its behalf for the relevant sections to aid in its case, we will not do so in an effort to avoid becoming an advocate for the employer.

But regardless whether employee was an illegal alien when she sustained the work injuries at issue in this case, we are convinced employer's argument fails as a matter of law, and that employee is covered under the statute. This result is required under a strict construction of Chapter 287.

[A] strict construction of a statute presumes nothing that is not expressed. The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009) (citations omitted).

Allows for the Committee to be involved in the process of the meeting.

Above, we have set forth, in full, the language of section 287.020.1 RSMo. The clear, plain, obvious, and natural import of that language provides no support whatsoever for employer's argument that the legislature intended to exclude illegal aliens from the Missouri Workers' Compensation Law. Rather, the language makes clear that "every person" in the service of "any employer" under "any contract of hire" is an "employee." The language also makes clear that minors are employees even if they are employed in violation of law. Finally, the language specifically excludes one class of workers: owner-operators who meet the various criteria set forth in the section. The language does not exclude any other class of worker.

Employer acknowledges the mandate of strict construction under section 287.800.1 RSMo, but asks us to carve out an additional exclusion that is not clearly within the scope of the language used by the legislature. Employer directs us to the proviso that "[t]he word 'employee' shall also include all minors who work for an employer, whether or not such minors are employed in violation of law ..." Employer argues this language means the legislature intended to exclude from coverage under the statute anyone over the age of 18 working in violation of law. But the language used by the legislature is that of inclusion (namely, minors working in violation of law), not exclusion, and employer's argument asks us to presume something that is not expressed (namely, that illegal aliens over the age of 18 are not "employees" under the statute).

We also note that employer's construction of the statute produces what is arguably an absurd result: that illegal aliens are covered under the statute-but only until they reach the age of 18, at which point they are no longer "employees." The fundamental principles of statutory construction prohibit us from reading the language of Chapter 287 so as to work unreasonable, oppressive, or absurd results. Kincade v. Treasurer of Mo., 92 S.W.3d 310, 311 (Mo. App. 2002). We decline employer's invitation to assume the legislature meant to provide workers' compensation coverage to illegal aliens only if they are under the age of 18. Even if we could imagine a tender-hearted legislature seeking to protect minors regardless of their immigration status, the very process involves undue speculation and takes us, once again, outside the realm of strict construction and into the act of inferring a legislative intent that is not expressed by the plain language of the statute.

In sum, employer asks us to ignore strict construction and to presume something that is not clearly expressed within the terms of section 287.020.1. This we are not permitted to do. We affirm the administrative law judge's finding that employee met her burden of proving she is an "employee" for purposes of section 287.020.1.

Employer failed to prove employee's liability for past medical expenses is extinguished Employee presented her medi