Bobby Mock v. Superclean Services Company, LLC; Superclean Services LTD; Klean Rite Maintenance, Inc.

1. The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses.

The foregoing language charges an employer with the duty to provide employee's treatment and unequivocally grants to the employer control over the selection of a medical provider. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. App. 1995). The section also states that an employee is allowed to select his own doctors, but if he does so, he assumes liability for those expenses.

An exception to this rule exists where an employer has notice of an employee's need for treatment but fails to provide it; in such circumstances the courts have held that the employee is entitled to pursue his own course of treatment while later seeking an order from an administrative law judge or this Commission holding the employer liable for his past medical expenses. Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 847-48 (Mo. App. 2007). However, the courts have never recognized (and the plain language of the statute does not support) a theory that by once failing to provide care, an employer should be deemed as forever waiving the right to direct it in the future. ${ }^{1}$

If, going forward, there are disputes with regard to the treatment that flows from the work injury, the parties may petition the Commission to resolve such issues. See State ex rel. ISP Minerals, Inc. v. Labor \& Indus. Rels. Comm'n, 465 S.W.3d 471 (Mo. 2015). We note also that $\S 287.140 .2$ remains available to the parties in cases where the employee's life, health, or recovery may be endangered by the treatment (or lack thereof) furnished by Superclean and/or Klean Rite. We can envision circumstances wherein an employer's chronic failure to provide timely, reasonable and necessary medical care might warrant rescission of its right to direct medical treatment pursuant to the broad authority granted by $\S 287.140 .2$ RSMo, but we find insufficient evidence at this time to take such action.

The administrative law judge determined that employee was a statutory employee of Superclean based on an application of $\S 287.040$ RSMo, which provides, in relevant part, as follows:

1. Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed

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[^0]: ${ }^{1}$ We acknowledge the case of Balsamo v. Fisher Body Division-General Motors Corp., 481 S.W.2d 536 (Mo. App. 1972), which used the language of "waiver" to conclude that an employer was obligated to pay an employee's wife for future nursing services. A careful reading of Balsamo, however, reveals that the employer there actually "refused no medical care, and ... even paid for the doctor and hospital selected by the employee, something not required by the statute." Id. at 538. The court reasoned that after previously acceding to and paying for treatment selected by the employee, the employer could not reassert its right to direct treatment. Id. at 538-9. The Balsamo decision, in our judgment, does not support a theory that an employer's denial of treatment amounts to a de facto "waiver" of the right to direct it going forward.

on or about the premises of the employer while doing work which is in the usual course of his business.

1. The provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished, altered or repaired by an independent contractor but such independent contractor shall be deemed to be the employer of the employees of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work.
2. In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney's fees and expenses of the suit. Such recovery may be had on motion in the original proceedings. No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer.

Superclean appeals, arguing that the administrative law judge was prevented from finding employee was its statutory employee unless it was first determined that Klean Rite (the entity under whose immediate direction employee worked) was an "employer" for purposes of $\S 287.030 .1$ RSMo, which provides, in relevant part, as follows:

The word "employer" as used in this chapter shall be construed to mean:

(1) Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay;

(3) Any of the above-defined employers must have five or more employees to be deemed an employer for the purposes of this chapter unless election is made to become subject to the provisions of this chapter as provided in subsection 2 of section 287.090, except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for the purposes of this chapter if they have one or more employees. An employee who is a member of the employer's family within the third degree of affinity or consanguinity shall be counted in determining the total number of employees of such employer.

We are not persuaded, for a number of reasons. First, we note that Superclean relies on the language set forth in the third subsection under $\S 287.040$ that "[i]n all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer" (emphasis added) for its argument that employee cannot be its statutory employee unless every intermediate entity is proven to be an "employer" as defined under $\S 287.030$. Superclean argues Klean Rite did not have five employees on the date employee was injured, and thus cannot be deemed an employer for purposes of $\S 287.030 .1(3), and for this reason, \S 287.040 .1$ cannot be applied to determine that employee was a statutory employee of Superclean.

The courts, however, have specifically considered and unequivocally rejected the argument that the language of $\S 287.040 .3$ in any way affects the determination whether a statutory employment relationship exists:

This subsection does not involve the determination of statutory employment and does not affect the statutory employer's liability as to the statutory employee. Instead, it merely serves to prioritize the obligations of contractors and subcontractors by determining the order of liabilities when more than one party is potentially liable for payment of workers' compensation benefits. The purpose of this subsection is to protect the employees of financially irresponsible subcontractors.

Chouteau v. Netco Constr., 132 S.W.3d 328, 335 (Mo. App. 2004)(citations omitted).

[T]he clause does not say that the immediate employer must be liable to the employee under the act in order to make the principal contractor liable to the employee. The obvious purpose and intent of the clause is, not to disturb or effect the liability of the principal contractor to the employee, as clearly provided for and defined by the other clauses of the subsections, but to merely give the principal contractor recourse on the immediate employer for compensation paid to the employee, in case the immediate employer is liable to the employee under the act. If the principal contractor does not have recourse in every case, it is because of a situation which the contractor itself has created by subcontracting with a minor employer who does not accept, and is therefore not subject to the provisions of the act. Of this the contractor has no right to complain.

Pruitt v. Harker, 43 S.W.2d 769, 772 (Mo. 1931)(citation omitted).

As the Chouteau and Pruitt courts make clear, § 287.040.3 has no bearing on the determination whether the statutory employment relationship exists given a particular factual situation; rather, it merely prioritizes the liabilities of the various entities involved. As the parties are undoubtedly aware, we are required to strictly construe the provisions of Chapter 287 by virtue of $\S 287.800 .1$ RSMo, and "a strict construction of a statute presumes nothing that is not expressed." Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009). Consistent with this mandate, we cannot presume that the designator "shall be liable as an employer" under $\S 287.040 .3$ manifests an implied legislative intention to

Injury No. 10-053380

Employee: Bobby Mock

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incorporate the definition of emp