Timothy Mealer v. Russ Jackson Transportation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award of Administrative Law Judge by Separate Opinion)

**Injury No.:** 13-085074

**Employee:** Timothy Mealer

**Employer:** Russ Jackson Transportation

**Insurer:** N/A

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This 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, read the petitioner's brief, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award of the administrative law judge by separate opinion.

Employee filed a claim for compensation in this case alleging he sustained a compensable injury on October 25, 2013, in Cahokia, Illinois, while working for employer. Employer did not file an answer to employee's claim for compensation.

Employee appeared for a hearing before an administrative law judge on December 14, 2015. Employer did not appear at that hearing. At the hearing, employee's attorney asserted¹ that: (1) employee was in the employment of employer on October 25, 2013; (2) employee sustained an accident arising out of and in the course of the employment; (3) employee's claim is subject to the jurisdiction of the State of Missouri and Division of Workers' Compensation (Division); (4) employee is entitled to the maximum compensation rate of $446.85; (5) employer and employee were operating under the provisions of the Missouri Workers' Compensation Law; (6) employer's liability was not insured; (7) employer had notice of the injury; and (8) the claim for compensation was filed within the time prescribed by law. Employee's attorney asked the administrative law judge for a favorable ruling finding employer liable to employee for permanent partial disability benefits, as well as past and future medical expenses.

The administrative law judge determined as follows: (1) employee was an employee of employer; (2) employee suffered an injury which arose out of and in the course of his employment on October 25, 2013; (3) employer and employee operated under the Missouri Workers' Compensation Law; (4) employer's liability was not insured; (5) it is not clear from the evidence how many employees worked for employer on October 25, 2013; (6) jurisdiction is proper in St. Louis County; (7) the claim for compensation was

¹ We note that the administrative law judge asked the employee's attorney, at the outset of the hearing, to "please testify" as to various elements of employee's claim. Transcript, page 7. Employee's attorney was not sworn, however, and did not offer her own testimony at the hearing as to any of the elements of employee's claim; instead, she provided assertions announcing the employee's position with respect to each element or issue identified by the administrative law judge.

Injury No.: 13-085074

Employee: Timothy Mealer

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timely filed; (8) employer is not liable for past medical expenses because employee failed to meet his burden of proving the bills in evidence related to his work injury; (9) an award of permanent partial disability benefits cannot be made because employee failed to meet his burden of proving he had reached maximum medical improvement; and (10) future medical benefits cannot be determined because employee did not prove he had reached maximum medical improvement.

Employee filed a timely application for review alleging the administrative law judge erred: (1) in finding there was no compensable injury; (2) in denying payment of past medical expenses; (3) in denying Second Injury Fund Liability; (4) in not awarding permanent partial disability and disfigurement benefits; and (5) in not awarding future medical treatment. Employee alternatively argued that the administrative law judge should have entered a temporary or partial award, given her finding that employee had not reached maximum medical improvement.

On October 12, 2016, the Commission issued an order remanding this matter to the Division to conduct an evidentiary hearing for the taking of evidence regarding: (1) the issue whether the Division and Commission have jurisdiction to decide employee's claim for compensation; and (2) the medical expenses employee has incurred since the prior hearing, to the extent employee alleges any such medical care and related expenses were reasonable and necessary to cure and relieve him of the effects of the work injury.

The Division conducted the remand hearing on February 2, 2018, and returned the file to the Commission. For the reasons set forth herein, we affirm the award denying compensation, because we conclude employee was not working for an "employer" subject to the Missouri Workers' Compensation Law on October 25, 2013.

Findings of Fact

Employee worked for employer as a truck driver hauling grain from St. Clair, Missouri, to Madison, Illinois. He suffered the injuries for which he claims compensation herein on October 25, 2013. Employee testified that his supervisor, Russ Jackson, told him employer didn't have workers' compensation insurance, because employer did not have five employees. Apart from this testimony from employee, there is no other evidence on this record as to the number of employees working for employer on October 25, 2013, or at any other time.

Consequently, there is no evidence on this record that would support a factual finding by this Commission that employer had five or more employees on October 25, 2013. Nor is there any evidence on the record that would support a finding that employer made an election to become subject to the provisions of the Missouri Workers' Compensation Law. Finally, there is no evidence on this record that would support a finding that employer was engaged in the construction industry as of October 25, 2013.

We find that employer did not have five or more employees on October 25, 2013; that employer did not make an election to become subject to the provisions of the Missouri

Injury No.: 13-085074

Employee: Timothy Mealer

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Workers' Compensation Law; and that employer was not engaged in the construction industry as of October 25, 2013.

**Conclusions of Law**

The Missouri courts have made clear that the existence of an employment relationship subject to the Missouri Workers' Compensation Law is one of subject-matter jurisdiction, and that, as such, the issue cannot be determined by consent, stipulation, or (as in this case) any default in the employer's answer or appearance:

> Jurisdiction has many meanings depending on the context used. Subject-matter jurisdiction is defined as the authority to determine the general question involved; if a petition states a claim belonging to a general class over which the authority of the court extends, that court has subject-matter jurisdiction. ... However, subject-matter jurisdiction cannot be conferred by consent or agreement of the parties, by appearance or answer, or by estoppel.

*Sodipo v. Univ. Copiers*, 23 S.W.3d 807, 809 (Mo. App. 2000).

In *Sodipo*, the court held that the Commission was required to determine whether it had subject-matter jurisdiction over the claim, where the Second Injury Fund raised, for the first time on appeal before the Commission, the argument that the Missouri Workers' Compensation Law did not apply to the underlying employment relationship. *Id.* at 810. As the court explained: "the Commission exercises limited jurisdiction, and if the legislature exempts any cases from the Commission's purview, then Claimant's workers' compensation claim falls outside such class of cases over which the Commission maintains jurisdiction." *Id.* The court concluded that, on the record before it, the employee's claim was excluded from coverage by operation of § 287.090 RSMo, and that the Commission was therefore required to dismiss the claim. *Id.*

Here, despite our interlocutory order remanding this matter to the Division for the express purpose of giving employee an opportunity to establish that we have jurisdiction over this claim, the record does not contain evidence sufficient to allow us to so conclude. This is because, as further discussed below, employee has failed to advance evidence sufficient to permit us to conclude that employee sustained his injuries in the context of an employment relationship subject to the Missouri Workers' Compensation Law.

Section 287.120.1 RSMo provides, in relevant part, as follows:

> Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment.

Injury No.: 13-085074

Employee: Timothy Mealer

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Pursuant to the foregoing, we are authorized to issue an award of compensation only in cases where the employer is "subject to the provisions" of the Missouri Workers' Compensation Law. Consequently, it is incumbent upon the employee, in any proceeding for compensation, to demonstrate that he was working, at the time he was injured, for an employer subject to the provisions of the Missouri Workers' Compensation Law.

Section 287.030.1 RSMo defines an "employer" as follows:

1. 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;

(2) The state, county, municipal corporation, township, school or road, drainage, swamp and levee districts, or school boards, board of education, regents, curators, managers or control commission, board or any other political subdivision, corporation, or quasi-corporation, or cities under special charter, or under the commission form of government;

(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 have found that employer did not have five or more employees on October 25, 2013; that employer did not make election to become subject to the provisions of Chapter 287 as provided in § 287.090.2 RSMo; and that employer was not engaged in the construction industry. As a result, we must conclude that employer cannot be deemed an "employer" pursuant to § 287.030, that employer was not operating subject to the Missouri Workers' Compensation Law on October 25, 2013, and that employer cannot be held liable for any compensation herein pursuant to § 287.120.

Accordingly, we are constrained to dismiss this claim for lack of subject-matter jurisdiction. All other issues are moot.

**Employee:** Timothy Mealer

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Employee's claim is dismissed because he was not working for an employer subject to the Missouri Workers' Compensation Law at the time he sustained the injuries for which he claims compensation herein.

The award and decision of Administrative Law Suzette Carlisle is attached solely for refer