John Harrington v. Employer Solutions Staffing

For the reasons stated below, we modify the award of the administrative law judge referable to the issue of (1) employer's liability for temporary total disability benefits from June 28, 2012, to May 21, 2013; and (2) doubling of temporary total disability benefits under $\S 287.510$ RSMo.

In her award, the administrative law judge listed employer's insurer as "unknown." On August 19, 2014, employee filed an objection to employer's application for review requesting that we dismiss employer's application on the ground that employer did not post a bond as required under § 287.480.2 RSMo. On September 4, 2014, we issued an order denying employee's request that we dismiss employer's application for review, and directing employer, pursuant to $\S 287.300$ RSMo, to produce and furnish to us within 20 days a copy of its policy of insurance, if any, covering this claim.

On October 7, 2014, employer filed with the Commission a "Second ${ }^{1} Supplemental { }^{2}$ Response of Employer to Commission Order" to which was attached a certified copy of a policy of insurance issued by Travelers Property Casualty Company of America (Travelers) for the policy period May 22, 2012, through May 22, 2013. On October 10, 2014, we issued an order directing all interested parties to show cause within 20 days why the Commission should not admit into evidence the certified copy of the Travelers policy. We sent our October 10, 2014, order to employee, employer, and their respective counsel. Unfortunately, however, we failed to send our October 10, 2014, order to Travelers, owing to inadvertent error on the part of our clerical staff.

On November 6, 2014, we issued an order noting that we did not receive any response to our order of October 10, 2014; admitting into evidence the certified copy of the policy of insurance described above; and finding that on the date of employee's injury, the workers' compensation liability of employer was insured by Travelers. We additionally directed the Secretary to the Commission to add Travelers as a party to this case. However, owing to additional error on the part of our clerical staff, the Secretary to the Commission did not send to Travelers correspondence pertaining to the briefing schedule or oral arguments in this matter.

On January 21, 2015, the Commission heard oral arguments in this matter. Counsel for employee and employer participated. On January 22, 2015, counsel on behalf of Travelers filed an entry of appearance with the Division in this matter; on January 27, 2015, counsel for Travelers provided the Commission with a copy of her entry of appearance. As a result, we provided to counsel for Travelers copies of each of the parties' filings and correspondences, as well as copies of all correspondence to the parties and orders of the Commission in this matter, and temporarily suspended our review of employer's application for review in order to permit Travelers an opportunity to respond.

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[^0]: ${ }^{1}$ Employer's earlier "Supplemental Response of Employer to Commission Order" of October 1, 2014, had provided an uncertified copy of an insurance policy.

${ }^{2}$ Employer's initial "Response of Employer to Commission Order" of September 24, 2014, had provided a copy of an insurance policy which, on its face, purported to cover employer's liability from March 5, 2013, to March 5, 2014, where the date of injury in this matter was June 13, 2012.

**Injury No. 12-051309**

**Employee:** John M. Harrington

On February 17, 2015, Travelers filed its "Motion for Remand." Therein, Travelers alleged that it was not provided notice of all proceedings as required by statute, and denied that the insurance policy at issue provides workers' compensation coverage in this matter. Travelers requested that the Commission determine that the awards issued by the administrative law judge are void, and remand this matter for additional proceedings including a determination as to whether the Travelers policy provides coverage in this matter. Notably, Travelers's Motion for Remand did not include any prima facie factual allegations supporting its contention that the insurance policy at issue does not provide workers' compensation coverage in this matter.

On February 23, 2015, employee filed "Employee's Response to Travelers Property Casualty Co. of America's Motion for Remand." Therein, employee alleged that his counsel had been informed that Travelers is defending this case under a reservation of rights agreement with employer, and argued that it is inconsistent for Travelers to do so while simultaneously seeking a remand for further proceedings. Employee requested that the Commission deny Travelers's Motion and affirm the administrative law judge's awards.

On February 26, 2015, employer filed "Response of Employer Solution Staffing to Motion for Remand of Travelers Property Casualty Company of America." Therein, employer indicated that it does not oppose a remand to an administrative law judge for resolution of contested insurance coverage issues, as long as such remand is without prejudice to its right to seek Commission review of the prior awards upon resolution of the coverage issues.

On April 10, 2015, the Commission issued an order directing Travelers to provide within 30 days factual allegations sufficient to make a prima facie showing that the workers' compensation liability of employer was not insured by Travelers as of the date of employee's injury. Our order indicated that if Travelers was able to provide such allegations, we would set aside our order of November 6, 2014, temporarily suspend review of employer's application for review, and remand this matter to the Division for an evidentiary hearing regarding the issue of insurance coverage. Our order also stated that if Travelers was not able to provide such allegations, our order of November 6, 2014, would remain in full force and effect, and we would issue, in due course, a final award resolving the issues raised in employer's application for review.

On May 11, 2015, the Commission received "Travelers Property Casualty Company of America's Memorandum in Support of its Motion for Remand." Therein, Travelers admits that a Missouri policy of insurance existed insuring employer for the time period in question, but alleges that the policy does not satisfy § 287.280.1 RSMo, because it does not insure the employer's entire liability under Chapter 287 where it does not insure for extra-territorial injuries. In support of this reading of the policy, Travelers refers us to the Limited Other States Endorsement contained within the policy, and argues employee did not satisfy that endorsement's definition of "Missouri employee."

We appreciate Travelers's forthright admission that the policy of insurance in question was effective on the date of injury in this matter. We are not, however, persuaded by its argument against coverage, for a number of reasons. First, the Limited Other States Endorsement, by its own terms, applies only "in situations when a Missouri employee is

entitled to workers' compensation benefits of a state other than Missouri." See Travelers Policy, Missouri Limited Other States Endorsement, page 1. Obviously, we are not concerned here with the question of employee's entitlement to workers' compensation benefits in a state other than Missouri, so the terms of the Limited Other States Endorsement are irrelevant.

Second, we are of the opinion that any definition of "employee" in this matter must be governed by the definition set forth in § 287.020.1 RSMo, rather than the language of an insurance policy. Indeed, the policy itself states that, "Terms of this insurance that conflict with the workers compensation law are changed by this statement to conform to that law." See Travelers Policy, page 2. To the extent the policy would exclude coverage for the injuries at issue in this matter by narrowing the scope of what constitutes a "Missouri employee," the terms of the policy must yield to the definition set forth in § 287.020.1, which employee unquestionably satisfies. ${ }^{3}

Finally, the plain language of \S 287.280 .1$ RSMo (which Travelers, ironically, invokes in its Memorandum) precludes Travelers's attempt to limit the scope of coverage by interpretation of the policy's terms. The version of $\S 287.280 .1$ applicable to this claim provides, in relevant part, as follows:

Every employer subject to the provisions of this chapter shall, on either an individual or group basis, insure his entire liability thereunder ... with some insurance carrier authorized to insure such liability in this state ...

(emphasis added).

Section 287.310.1 RSMo additionally provides, in relevant part, as follows:

Every policy of insurance against liability under this chapter shall be in accordance with the provisions of this chapter ...

(emphasis added).

The Missouri courts have construed the foregoing provisions to prevent an insurer from limiting, via the terms of an insurance policy, the scope o