I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's denial of compensation in this case.
Based on the employee's propensity to exaggerate and minimize details of his criminal history, the majority finds he is not credible. Relying on employer's witnesses, the majority concludes that the employee is not a covered worker and that employer Ginger C is not subject to the Workers' Compensation Law.
At hearing, the parties stipulated that "[O]n June 26, 2013, while in the employment of Ginger C, LLC, claimant sustained an injury by accident in Columbia, Missouri (emphasis added)."[^1]
The majority makes the following fact-findings relating to events surrounding the employee's relationship with employer Ginger C and his undisputed June 26, 2013, work injury:
- Nahkle Asmar, owner of Ginger C, has been a professor at the University of Missouri for 30 years ... [H]e created Ginger C as a side rental business several years ago and currently owns approximately 20 rental houses and apartments.
- The company's sole income is rent. Ginger C does not perform construction ... [It] hires contractors to repair and remodel its buildings for rental on an as needed basis.
- Ginger C had no employees in 2013 and did not issue any W2s.
- Claimant worked sporadically for Ginger C from April 1, 2013, through July 2013. His work ranged from changing light bulbs to full remodels ... Claimant's hours worked were erratic and typically less than 40 hours a week.
- Roland Nabhan ... began working as an independent contractor for Ginger C in 2013. ... Mr. Nabhan had his own tools and bid jobs for Ginger C. He was free to take jobs from other companies and turn down jobs from Ginger C. He worked from job to job, was paid by the job and sometimes paid for the materials. Mr. Asmar did not control how Mr. Nabhan performed his job.
- In June 2013, Mr. Asmar purchased the Hinkson property, the site of the injury in question. A contractor gave him a bid to repair the basement floor. Claimant and Roland Nabhan described themselves as concrete experts and outbid the initial contractor.
- Mr. Nabhan worked with Claimant and [another worker named] Mr. Magee on the Hinkson property concrete job. Mr. Nabhan arranged for delivery of the concrete and tools.
[^1]: Transcript, 5.
Injury No.: 13-104894
Employee: Rommae Hayes
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- On June 26, 2013, Mr. Magee was pouring the concrete into the basement, and as Claimant smoothed it out, some of the concrete got in his boots and burned him.
- [Mr. Asmar] was not present when the concrete work was performed, and he did not control the way Claimant did this job, or any job. Mr. Asmar did not provide the tools, did not own any tools or machines, and did not control the hours worked.
- [Employee] went to the Emergency Room and was diagnosed with alkali burns. Claimant was admitted to the burn unit and had skin grafts performed on both legs. Claimant spent four days in the hospital, and had follow up care with a burn specialist.²
Section 287.030.1 defines "employer" for purposes of the Workers' Compensation Law as:
(1) Every person, partnership, association, corporation, limited liability partnership or company ... 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 purposes of this chapter... except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for purposes of this chapter if they have one or more employees.
Based on the above-cited facts, the majority concludes employee was not an "employee" under the Workers' Compensation Law. The majority presumably bases its decision on a finding that employee was acting as an independent contractor at the time of his June 26, 2013, injury.
The majority further concludes that Ginger C is not an employer under the Law. In so finding, it cites the following: (1) Typically only three men worked on Mr. Asmar's properties; (2) Ginger C did not hire any full-time employees; (3) Ginger C's primary business purpose and sole income is apartment rental; (4) Ginger C did not build new construction or rehab and "flip" houses; and (4) Ginger C was not hired to perform construction work.³ Based on these facts the majority affirms the administrative law judge's finding that, pursuant to § 287.030.1, Ginger C does not have five or more employees and is not a construction industry employer.
Section 287.040.1 provides:
- 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
² See ALJ's Award, pp. 4-7.
³ Id., p. 9.
Implyeer: Rommae Hayes
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chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.
In *McCracken v. Wal-Mart Stores East, LP*, 298 S.W. 3d 473, 480 (Mo. 2009) the Missouri Supreme Court noted:
> [Section 287.040.1] is designed to prevent employers from evading the Act's requirements by hiring independent contractors to perform work the employer otherwise would hire ordinary employees to perform. *Bass*, 911 S.W.2d at 619. It does so by defining the company that hires the independent contractor as a statutory employer. This allows an injured employee to recover workers' compensation from the company if injured, just as if the work had not been farmed out to an independent contractor (emphasis added). *Huff v. Union Elec. Co.*, 598 S.W.2d 503, 511 (Mo. App. 1980). The party asserting the existence of statutory employee status bears the burden of proving that the injured person was a statutory employee of the purported statutory employer. *Martinez v. Nationwide Paper*, 211 S.W.3d 111, 115 (Mo. App. 2006). One is a statutory employee if (1) the work is performed pursuant to a contract, (2) the injury occurs on or about the premises of the alleged statutory employer and (3) the work is in the usual course of the alleged statutory employer's business. *Bass*, 911 S.W.2d at 619.
The Commission has previously held that a determination of statutory employment is not predicated on a minimum number of employees, and that an employee's status as an independent contractor does not preclude finding of a statutory employer/employee relationship.
The following evidence in this case demonstrates proof of all three elements of above-cited statutory employment test: