Steven Florea v. UPS Freight

judge. On direct examination by his attorney, employee testified that the hiring process involved the following steps:

(1) Employee filled out an application for employment in Kansas.

(2) About a week later, someone with employer called employee at his home in Missouri; during that phone call, employer offered employee a job, and employee accepted the offer.

(3) Employee then reported to work at employer's location in Kansas.

Transcript, pages 12-3.

On cross-examination, however, employee agreed that after he received the phone call from employer, he was required to complete a physical and undergo a drug test, and that these tasks were performed in Kansas. He further agreed that employer's initial offer of employment was conditional upon his completion of these steps, and that notwithstanding his acceptance of the conditional offer of employment, he was required to complete these additional steps before he could go to work for employer. When we add employee's concessions on cross-examination, it appears that the hiring process actually involved the following steps:

(1) Employee filled out an application for employment in Kansas.

(2) About a week later, someone with employer called employee at his home in Missouri; during this call, employee accepted a conditional offer of employment.

(3) After the call, employee underwent a physical and drug test in Kansas.

(4) After successfully completing the physical and drug test, employee was employed by employer.

Transcript, pages 54-5.

Under the foregoing, we would find that the last act necessary to complete the employment contract between employer and employee was employee's act of successfully completing the physical and drug test in Kansas. To avoid this result, employee directs us to his deposition testimony.

Turning to employee's deposition, we find employee testifying to the following series of steps in the hiring process:

(1) Employee filled out an application for employment in Kansas.

(2) Employer called employee a couple of days later, requesting employee come for an interview in Kansas. Employee did not identify where he was when he received this phone call.

(3) Employee underwent an interview in Kansas, where he also filled out paperwork.

(4) After the interview, employee submitted to a drug test in Kansas.

(5) Employee then received a second call from an individual named Donna Lemmons, requesting that employee report to employer's

premises for a three-day orientation. Once again, employee did not identify where he was when he received this phone call.

(6) For three days, employee watched safety films at employer's location in Kansas, and also filled out additional paperwork, including a forklift certification; afterward, employer told employee that employer would get in touch with him.

(7) A couple days later, employer called employee (again, employee did not say where he was when he received this call) and asked which shift he wanted to work; employee chose the night shift.

Transcript, page 1319.

As noted above, employee did not provide any testimony to identify where he was when he received any of the three phone calls identified in his deposition testimony. In this age of ubiquitous cell phones and where fewer and fewer individuals maintain "landline" telephone services at their homes, we cannot assume that employee was at his home in Missouri when he received each of these calls, nor can we base any factual findings on our own assumptions or speculation regarding where employee might have been if he received the phone calls on a cell phone. As a result, even if we accepted employee's deposition testimony as more persuasive than his testimony at the hearing before the administrative law judge, employee's deposition testimony does nothing to establish that any phone conversation occurred in Missouri that would constitute the last act necessary to complete the employment contract between himself and employer.

Ultimately, we find employee's testimony before the administrative law judge, including his concessions on cross-examination, to be the best evidence regarding the hiring process. We find that the last act necessary to complete the employment contract between employer and employee occurred when employee successfully completed the drug test, physical, and background check in Kansas.

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

performed his work for employer at its location in Kansas City, Kansas. Accordingly, Missouri jurisdiction turns on the question whether employee proved he formed an employment contract in Missouri.

"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 have found that the last act necessary to complete the employment contract between employer and employee occurred in Kansas, because employee was required to successfully complete a physical and drug test in Kansas before employee was permitted to go to work. See Whitney v. Country Wide Truck Serv., 886 S.W.2d 154 (Mo. App. 1994) (holding that where an employee is required to complete steps such as drug tests before going to work, those acts are properly considered the last necessary to complete the employment contract). We conclude, therefore, 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 Administrative Law Judge Lisa Meiners, issued January 29, 2014, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of December 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Steven Florea

Injury No. 07-085292

Dependents: N/A

Employer: UPS Freight

Insurer: Liberty Mutual Insurance Company/Gallagher Bassett Services

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

Hearing Date: October 23, 2013

Checked by: LM/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: May 11, 2007
5. State location where accident occurred or occupational disease was contracted: Contract of hire in 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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While working in the course and scope of employment, Employee sustained occupational exposure lifting and unloading freight on a repetitive basis that caused injury of his low back.
12. Did accident or occupational disease cause death? No Date of death? N/A