On January 2, 2018, an administrative law judge (ALJ) issued an award with respect to the employee's claim against the Second Injury Fund (SIF) in Injury No. 09-029009.¹
At hearing, the ALJ identified the following disputed issues:
- Liability of the SIF; and
- Whether Kathie Lane was an employee of named employer Via Bancourier at the time of her January 29, 2009, injury.
The ALJ denied the employee's SIF claim on the basis that the employee failed to prove she was an employee under the Workers' Compensation Law pursuant to § 287.020 RSMo. The ALJ found that the employee was not a covered worker because she was self-employed. Employee filed a timely application for review, alleging she was a statutory employee of Via Bancourier pursuant to § 287.040.1 RS Mo.² We supplement the ALJ's decision with the following findings on the issue of a statutory employer/employee relationship.
Employee worked for employer Via Bancourier as a pick-up and delivery driver. Employee used her own car and was responsible for all maintenance, upkeep and insurance on the vehicle. Employer reimbursed twenty percent of her gasoline expenses. Employee entered into an employment contract with employer that provided she was an independent contractor. Employer issued employee a 1099 form at the end of each year. On January 29, 2009, she
1 The employee settled her claim against the alleged employer/insurer in this case by a Stipulation for Compromise Settlement approved by an ALJ on August 30, 2016.
2 The ALJ's award includes a finding that employee filed no claims against employer Via Bancourier relating to other work-related accidents in 2007 and 2008. Award, 4. We take administrative notice of Division of Workers' Compensation records documenting claim numbers 07-135482 and 08-121343, involving employee Kathie Lane and alleged employer Via Bancourier. A Division ALJ approved stipulations for compromise settlement of both claims on August 30, 2016.
Injury No.: 09-029009
Employee: Kathie Lane
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sustained injury while delivering items for employer when a school bus turned into the path of her automobile.
Section 287.040.1 of the Missouri Workers' Compensation Law 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 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 business.
The parties agree that at the time of her January 29, 2009, work injury employee was working pursuant to a contract with alleged employer Via Bancourier and performing courier work in the usual course of employer's business. The only dispute is whether employee's injury occurred "on or about the premises of the employer," the second component of the three-prong statutory employment test.
Employee cites *Sargent v. Clements, Simpson v. New Madrid Stave Co.*, and *Wilson v. C. C. Southern, Inc.*³, in support of her contention that the term "premises" in § 287.040.1 should not be given a narrow or refined construction but rather be liberally construed and applied. Employee argues that because the general public did not have the right to use employee's personal vehicle or to access the items she delivered, employer's premises must be considered mobile.
The SIF cites the Eastern District case *Cole v. Town & Country Exteriors*⁴, which held:
> [P]remises does not extend to public roads used by independent contractors to get to the job site. The general public has the same right to travel on a public road as did claimant. Accordingly, injuries suffered by claimant while travelling to the job site did not occur on the premises. *Id.* at 585.
In reliance on *Cole*, the SIF urges that Ms. Lane's work injury on a public highway did not occur on or about the premises of Via Bancourier.
The above-cited cases were decided prior to the 2005 changes in the law that require all administrative tribunals and any reviewing court to strictly construe provisions of the Workers' Compensation Law. The 2005 amendments to § 287.800 RSMo departed from the prior law which specifically called for provisions of the Workers' Compensation Law to be liberally construed.⁵
As explained by the court in *Allcorn v. Tap Enterprises, Inc.*, 277 S.W.3d 823 (Mo. App. 2009):
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³ *Sargent v. Clements*, 88 S.W.2d 174, 178 (Mo. 1935); *Simpson v. New Madrid Stave Co.*, 62 S.W.2d 615 (Mo. App. 1932) and *Wilson v. C. C. Southern, Inc.*, 140 S.W.3d 115 (Mo. App. 2004).
⁴ *Cole v. Town & Country Exteriors*, 837 S.W.2d 580 (Mo. App. 1992).
⁵ Prior to the 2005 amendments, § 287.500 read:
> All of the provisions of this chapter shall be liberally construed with a view to the public welfare, and a substantial compliance therewith shall be sufficient to give effect to rules, regulations, requirements, awards, orders or decisions of the division and the commission, and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto.
Implyyee: Kathie Lane
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'[A] strict construction of a statute presumes nothing that is not expressed.'
3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6TH ED. 2008). The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. 82 C.J.S. Statutes § 376 (1999). Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. 3 SOUTHERN STATUTORY CONSTRUCTION § 58:2 (6TH ED. 2008). The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions. 3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6th ed. 2008). Id. 828.
Applying strict construction pursuant to Allcom standard, the terms of § 287.040.1 do not affirmatively point out that a work injury sustained on a public highway should be construed as having occurred "on or about the premises of the employer." Id. Webster's dictionary defines premises in the employment context as "The place of business of an enterprise or institution (emphasis added)." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1789 (Unabridged, 2002). The conclusion that an employer's premises include public highways is inconsistent with the generally accepted definition of the term. Such an interpretation is clearly outside of the scope of the clear, plain, and obvious language of § 287.040.1. We find that the circumstances of the employee's injury do not clearly fall within the provisions of § 287.040.1 and that a fair application of the statute does not lead to a finding of a statutory employment relationship in this case.
Decision
We affirm the administrative law judge's award denying all compensation. We affirm and adopt the award of the administrative law judge as supplemented herein.
The award and decision of Administrative Law Judge Mark S. Siedlik, issued January 2, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.
Given at Jefferson City, State of Missouri, this 31st day of October 2018.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
Robert W. Cornejo, Chairman
Reid K. Forrester, Member
DISSENTING OPINION FILED
Curtis E. Chick, Jr., Member
Attest:
Pamela M. Hofmann/JHK
Secretary