Howard Saunders v. Steve Bowen d/b/a Steve Custom Builders

Employee did not perform any work during the winter months in late 2006 and early 2007. At some point in March 2007, employee called Mr. Bowen to inquire whether there was any work to perform. The phone call took place at about 8:00 p.m. Employee was in Kansas when he made the phone call. Employee called Mr. Bowen's cell phone. Employee believes that Mr. Bowen was at home at his business location in Missouri, because Mr. Bowen is usually at home by that time. But employee admits he doesn't know where Mr. Bowen was physically located when he answered employee's phone call. Employee also admits that he wasn't friends with Mr. Bowen and did not associate with Mr. Bowen to the extent he knew his daily habits.

We view employee's testimony to lack persuasive force as to the question where Mr. Bowen was located during the March 2007 telephone call. We find the evidence on this record too speculative and insubstantial to support any finding of fact as to Mr. Bowen's location during the telephone call.

During the telephone call, Mr. Bowen informed employee he was doing a project at a residence above a bar called Fat Max in Kansas City, Kansas. Mr. Bowen told employee to come out to work at that location. Employee did not perform any work in the days or weeks leading up to the Fat Max job; employee started working there about a week before March 19, 2007, the date of the alleged accident.

On March 19, 2007, employee was working in the residence above Fat Max when the nail gun he was using double-fired and shot a nail into his left hand. Employee informed Mr. Bowen of his injury, then went into the bar, where he accepted two shots of whiskey from Mr. Bowen. Mr. Bowen then took employee to the emergency room at KU Hospital. During the ride, Mr. Bowen asked employee not to tell anyone he'd been working for him when he was injured. Employee arrived at the hospital, where he received multiple injections of Morphine and Ativan.

Employee's next memory is waking up in the hospital on a respirator machine. Employee later learned that he'd been involved in a motor vehicle accident after having been discharged from the hospital. Employee suffered injuries in the motor vehicle accident including a broken hip and broken bones in the right foot and ankle.

Section 287.110 RSMo provides, in relevant part, as follows:

1. This chapter shall apply to all injuries received and occupational diseases contracted in this state, regardless of where the contract of employment was made, and also to all injuries received and occupational diseases contracted outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide, and also to all injuries received and occupational diseases contracted outside of this state where the employee's employment was principally localized in this state within thirteen calendar weeks of the injury or diagnosis of the occupational disease.

In order to establish jurisdiction under the foregoing section where (as here) the injury occurs outside the State of Missouri, the employee must show that either (a) the contract of employment was made in Missouri, or (b) the employee's work was principally localized in Missouri within 13 weeks preceding the injury. Employee failed to demonstrate that his work was principally localized in Missouri in the 13 weeks preceding the injury, as he testified (and we have found) that he did not work during the winter months of late 2006 and early 2007, or in the weeks preceding his going to work at the Fat Max bar. Accordingly, Missouri jurisdiction turns on the question whether employee proved he formed an employment contract in Missouri.

Under the relevant case law, employee was required to provide evidence of where he accepted employer's offer of employment or accomplished the last act necessary to complete the contract. "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 Transp., 208 S.W.3d 339, 342-343 (Mo. App. 2006). "[T]he issue of where an employment contract is concluded is one of fact, the claimant having the burden of proof and persuasion on the question." Redden v. Dan Redden Co., 859 S.W.2d 207, 209 (Mo. App. 1993). We conclude that employee failed to meet his burden.

Applying the foregoing principles, it's clear that if the last act necessary to complete the employment contract was employee's acceptance, while on the phone in Kansas, of an employment offer from Steven Bowen, there is no jurisdiction in Missouri. To avoid this result, employee argues that the last act necessary to complete the employment contract was Mr. Bowen's acceptance of his offer to come work for Mr. Bowen. Employee suggests that because he called Mr. Bowen to inquire about work, it was his offer which Mr. Bowen accepted when he instructed employee to meet him at the work location the next morning.

But even if we accept employee's argument and view Mr. Bowen's instruction that employee report to the job site as the last act necessary to complete the employment contract, employee has failed to provide persuasive evidence to reveal where Mr. Bowen was located during the phone call. We have found that the evidence on this record is too speculative and insubstantial to support any finding of fact as to Mr. Bowen's location during that phone call.

Because employee has failed to provide evidence that would support a finding that the last act necessary to complete the employment contract occurred in Missouri, it follows that employee has failed to establish jurisdiction in Missouri.

We conclude that under § 287.110 RSMo, there is no jurisdiction in Missouri over this claim for compensation.

We reverse the award and decision of the administrative law judge. Employee has failed to prove Missouri jurisdiction over this workers' compensation claim. For this reason, we deny the claim.

All other issues are moot.

The award and decision of Chief Administrative Law Judge Nelson G. Allen, issued April 11, 2012, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $\qquad 20^{\text {th }} \qquad$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

BISSENTING OPINION

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 administrative law judge's award finding Missouri jurisdiction and awarding benefits is correct, and should be affirmed.

I acknowledge employee's admission that he doesn't know for sure where his employer, Steven Bowen, was located during the phone call that established the employment contract in this case. I note however, that employee testified credibly that Mr. Bowen was usually at home at that time, and that Mr. Bowen "turns in early." Transcript, page 60, 61. After carefully reviewing employee's testimony, I believe there is enough credible circumstantial evidence to affirm the administrative law judge's finding of an employment contract in Missouri.

Because I otherwise agree with the administrative law judge's findings and conclusions, I would affirm the award of temporary total and permanent partial disability benefits, as well as the administrative law judge's finding that employee is entitled to his past medical expenses from the Second Injury Fund.

Because the majority has determined otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: Howard Michael Saunders

Injury No. 07-051137

Employer: Steve Bowen d/b/a Steve Custom Builders

Additional Party: The Treasurer of the State of Missouri as

Custodian of the Second Injury Fund

Insurer: None

Hearing Date: February 2, 2012

Checked by: NGA

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: Yes.
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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 was a carpenter and was using a nail gun. The nail gun misfired and drove a nail into his left hand.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Body as a whole.

1. Nature and extent of any permanent disability: 50 % body as a whole.
2. Compensation paid to-date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer? None.
4. Value necessary medical aid not furnished by employer/insurer? $\ 176,132.83.
5. Employee's average weekly wages: $\ 440.00.
6. Weekly compensation rate: $\$ 293.33 / 293.33$.
7. Method wages computation: Section 287.250 RSMo.

1. Amount of compens