Philip Riley v. Don Julian Builders

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-116993

Employee: Philip L. Riley

Employer: Don Julian Builders

Insurer: Kansas Building Industry Workers' Compensation Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole 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 of the administrative law judge dated September 25, 2012. The award and decision of Administrative Law Judge Emily Fowler, issued September 25, 2012, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $30^{\text {th }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge is in error, and should be reversed.

The parties presented conflicting evidence as to the facts surrounding employee's hiring with employer. It is agreed that employee contacted employer about a job; that employer advised employee to contact David Hill, a project manager with employer; that employee did so, and thereafter Mr. Hill interviewed employee in Lenexa, Kansas, on August 2, 2002, and offered employee a job with employer at $\ 12.00 per hour; that employee demanded $\ 14.00 per hour; that Mr. Hill told employee he did not have authority to offer him a job at $\ 14.00 per hour; and that Mr. Hill informed employee he would check with his supervisor and get back to employee. At this point, the testimony of the witnesses begins to deviate.

Employee testified that later that day, Mr. Hill called him at his home and offered him the job at $\ 14.00 per hour, and that he accepted. Meanwhile, Jeffrey Horn, production manager for employer, testified that Mr. Hill had no such authority, but that instead employee was required to report to employer's offices in Lenexa, Kansas, to undergo a second interview to determine whether it was worth it to pay employee $\ 14.00 an hour. Mr. Horn explained that laborers were generally only paid $\ 12.00 per hour, and that he wanted to meet with employee and question him regarding his background, customer relations skills, and general experience in light of his lack of experience in the construction industry. Mr. Horn testified that he interviewed employee in employer's offices in Lenexa, Kansas, and that thereafter he decided to hire employee and gave Mr. Hill authorization to offer the job to employee.

It was employee's burden to prove that jurisdiction over this workers' compensation claim properly lies in Missouri. Liberty v. Treasurer for Mo., 218 S.W.3d 7, 11 (Mo. App. 2007). I disagree with the majority's finding that employee offered the more credible testimony regarding the circumstances of his hiring with employer. I find it highly unlikely that Mr. Horn would authorize Mr. Hill to offer employee a job at $\ 14.00 per hour where the uncontested evidence reveals that employee had no background in construction or home building. I would instead credit the testimony from Mr. Horn and find that employee was not offered employment by Mr. Hill over the phone on August 2, 2002, but instead that Mr. Hill instructed employee to report to employer's offices in Lenexa, Kansas. I find that a second interview took place there, at which employee, Mr. Horn, and Mr. Hill were all present in the conference room. I find that after the interview, Mr. Horn stepped outside of the conference room with Mr. Hill and authorized Mr. Hill to offer employee a job at a rate of pay of $\ 14.00 per hour. I find that Mr. Hill did so, and that employee accepted.

Given these facts, it's obvious that the last act necessary to complete this employment contract took place in Kansas, when employee accepted employer's offer of employment. "Under Missouri law, a contract is deemed to have been made where the parties perform the last act necessary to complete the contract." Liberty v. Treasurer

for Mo., 218 S.W.3d 7, 10 (Mo. App. 2007). It follows that there is no jurisdiction over this workers' compensation claim in Missouri.

For the foregoing reasons, I would reverse the award of the administrative law judge and enter a final award dismissing employee's claim for lack of jurisdiction. Because the majority has determined otherwise, I respectfully dissent.

James G. Avery, Jr., Member

Issued by: Division of Workers' Compensation

Employee: Philip Riley

Injury No. 02-116993

Employee: Philip L. Riley

Injury No. 02-116993

Dependants: N/A

Employer: Don Julian Builders

Insurer: Kansas Building Industry Workers' Compensation Fund

Additional Party: N/A

Hearing Date: August 20, 2012

Checked by: ESF/pd

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: October 9, 2002
5. State location where accident occurred or occupational disease was contracted: Olathe, Kansas
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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee fell off of a ladder and suffered a spinal cord injury

COMPENSATION PAYABLE

1. Amount of compensation payable: The Employer/Insurer shall pay permanent total disability benefits starting on October 9, 2002 to the present at the rate of 396.23, subject to a credit for TTD benefits already paid in the amount of 125,818.95. Thereafter, Employee is entitled to a weekly amount of $396.23 and continuing on for as long as Employee remains permanently totally disabled.

Said payments are payable and 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 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ms. Brianne Thomas.

Injury No. 02-116993

On August 20, 2012, the Employer and the Employee appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, Philip Riley, appeared in person and with counsel, Ms. Brianne Thomas. The Employer and Insurer appeared through their attorney, Mr. Rex Henoch. The Second Injury Fund was not a party to this case.

At the hearing on August 20, 2012 the Employee and the Employer stipulated to the following:

1. That on or about October 9, 2002, Don Julian Builders was an Employer operating under the provisions of the Missouri workers’ compensation law and that their liability under said law was fully insured by Kansas Building Industry Workers' Compensation Fund;
2. That on or about October 9, 2002, Philip Riley was an employee of Don Julian Builders and was working under the provisions of the Missouri workers’ compensation law;
3. That his Claim for Compensation was filed within the time prescribed by law;
4. That the Claimant’s average weekly wage was $\ 594.40 and the applicable compensation rate for permanent total disability is $\ 396.23;
5. That temporary total disability benefits in the amount of $\ 125,818.95 have been paid by the Employer; and
6. That medical aid has been furnished by the Employer in the amount of $\ 3,097,835.84.

The issue to be determined by this hearing is:

1. Whether Missouri has jurisdiction over this claim.

The following exhibits were admitted into evidence on behalf of the Claimant:

Claimant's Exhibit A - Claim for Compensation Injury No. 02-116993

Claimant's Exhibit B - Application for Employment

Claimant's Exhibit C - Employee's Withholding Allowance Certificate, Forms W-4 and I-9

Claimant's Exhibit D - Copies of Claimant's Social Security card and Driver's License

Claimant's Exhibit E - Don Julian Builders Safety Responsibilities

Claimant's Exhibit F - Wage Statement

Claimant's Exhibit G - Portions of the Employee's Deposition

Claimant's Exhibit H - Document from the Employer's File

The following exhibits were admitted into evidence on behalf of the Employer/Insurer:

Employer/Insurer's Exhibit No. 1 - Portions of the Employee's Deposition

The only issue to be determined at this hearing is whether Missouri has jurisdiction over the Claimant's injury and his Missouri Claim for Compensation. For the reasons set forth below, I find that the Claimant was hired in Missouri and therefore, Missouri jurisdiction exists for his workers' compensation claim.

The Claimant testified at the hearing that on approximately Monday, July 29, 2002 he called the offices of Don Julian Builders in response to an ad in the Kansas City Star he had seen in the Sunday edition of that publication. He was given Dave Hill's contact information. He called Dave Hill, the project manager who was hiring a laborer to work for him at Don Julian. The Claimant left Dave Hill a voice message and sometime later that week, Mr. Hill returned his call. A formal interview was scheduled for Friday, August 2, 2002 at 10 a.m. at a gas station in Cedar Creek Subdivision in Lenexa, Kansas. The Claimant testified that the interview lasted approximately 45 minutes. The Claimant gave Mr. Hill his resume and they went over all of his qualifications. Mr. Hill admitted he considered it a formal interview. The Claimant considered it a formal interview. The Claimant told him about his self-taught electrical, plumbing, sheetrock, and carpentry experience. The Claimant did have some formal training at the Electronics Institute. Dave Hill testified that he was impressed with Mr. Riley and offered him the position of his laborer at Don Julian at $\ 12 per hour. Mr. Hill testified that at the time of the interview, he had the f