Milton Wilson v. Liquid Environmental Solutions Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge

With Supplemental/Corrected Opinion)

Injury No.: 11-109554

**Employee:** Milton Wilson

**Employer:** Liquid Environmental Solutions Corporation

**Insurer:** New Hampshire Insurance Company

**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 briefs, 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 and decision of the administrative law judge with this supplemental opinion.

The administrative law judge decided this matter on the basis of a lack of jurisdiction under the Missouri Workers' Compensation Act. The administrative law judge cited numerous facts related to the jurisdictional question under the heading, RULINGS OF LAW - B. Jurisdiction. We adopt all the facts stated within that section of the Award as our own findings of fact.

We further find that employee's testimony was inconsistent between his initial deposition in April 2011, and his final deposition, (in lieu of hearing testimony), given in July 2017. In April 2011, employee indicated that he worked mostly in Missouri and Arkansas, and did a lot of work in Kansas, with some trips to Nebraska. He gave no indication of the proportionate share of work, the number of miles or the number of days in each state. At all times during his employment, the employer's principal office operations were located in Kansas, and employee was required each day to begin and end his routes by picking up and dropping off his truck at the headquarters of employer in Kansas. At the time of his deposition in April 2011, employee lived in Kansas City, Missouri, and indicated he had lived there for five years.

In contrast, by July 2017, employee had altered his report of his work location indicating it was mostly Missouri.

**Q:** Where did you do most of your work?

**A:** Missouri.

**Transcript, page 16.**

There was no other development of the testimony about work location at the July 2017 deposition, aside from this single question at his deposition in lieu of hearing testimony. This inconsistency with his earlier testimony, appearing after the issues of the case became more apparent, diminishes employee's credibility on the issue. It also is inconsistent with his testimony that it wasn't until the last month or so of his employment, in January 2011, that he

1 Although employee gave no specifics, he indicated this was routine except for occasions when he may have an overnight route.

Injury No.: 11-109554

Employee: Milton Wilson

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mostly worked in the metro area of Kansas City, between Kansas and Missouri, while he was filling in for someone with an injury. We find that the evidence does not establish that employee worked mostly in Missouri. On the contrary, it shows the routes he drove encompassed Missouri, Kansas, Arkansas and Nebraska, but with one single consistent location on an almost daily basis, being at the employer's headquarters in Kansas. The employer's Kansas headquarters was also the place where he received assignments, reported his paperwork, and from where it appears that payment for his services was initiated. Employer had three dumpsites within the state of Kansas for employee's daily use in performing his duties, and only one in the southwestern corner of Missouri for dumping when in that area and Arkansas.

**Supplemental Conclusions of Law**

We agree with the administrative law judge that employee did not establish that jurisdiction over his claim falls under the Missouri Workers' Compensation Law. Employee suffered a slip and fall injury on January 28, 2011, in Bonner Springs, Kansas. He stopped working at this point. On March 16, 2011, he was diagnosed with mild bilateral carpal and mild cubital tunnel syndromes. Subsequent objective testing in the two years following the end of employment were unchanged from this diagnosis. These objective findings and the opinions of Dr. Erich Lingenfelter and Dr. O. Allen Guinn III persuade us that work was not the prevailing factor in the development of repetitive motion disease, in part because when work exposure ceased, there was no improvement. Transcript, pages 780, 782-785.

Section 287.110.2 RSMo provides that jurisdiction shall apply in Missouri:

> ... to all injuries received and occupational disease contracted in this state, regardless of where the contract of employment was made, and also to all injuries received and occupational diseases contracted outside of this state under contract of employment made in this state, ... and to all injuries received and occupational diseases contracted outside of this state where the employee's employment was principally localized in this state within thirteen calendar weeks of the injury or diagnosis of the occupational disease.

None of these jurisdictional provisions related to occupational disease have been established in the record. First, the record does not address the origination of a contract of employment. Second, employee did not establish that he contracted an occupational disease in the state of Missouri. Finally, employee did not establish that his employment was principally localized in Missouri within thirteen calendar weeks of his injury or diagnosis,[^2] nor at any time prior to that period. We reject employee's argument that he need not show his employment was "principally localized in this state within thirteen calendar weeks of the ... diagnosis" of the disease. Such a ruling would ignore the plain words of the statute which provide for exactly this situation where the place of contracting a disease may be unclear. Our mandate to strictly apply the provisions of the statute include giving meaning to all its provisions.

Employee appears to argue that his deposition testimony is sufficient to prove that he did most of his work in Missouri; therefore, it would follow that his repetitive motion disease was contracted in Missouri. In effect, he asks us to draw an inference from his testimony. However,

[^2]: Employee's initial claim filed May 2012, identified a date of injury as March 16, 2011. This was amended at the hearing to January 28, 2011. Employee was diagnosed with mild bilateral carpal tunnel syndrome and cubital tunnel syndrome as of March 16, 2011. January 28, 2011 was the date that employee fell at work. He did not work after that date. Regardless of which date is used, employee has not shown his employment was principally localized in Missouri or that his occupational disease was contracted here.

Injury No.: 11-109554

Employee: Milton Wilson

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we conclude that employee did not prove the employment was principally localized or that the substantial bulk of his work was in Missouri. We have not found his testimony persuasive on this issue.

As noted by the administrative law judge, the Missouri Workers' Compensation Act does not define the term "principally localized." In addition to the Black's Law Dictionary definition relied on by the judge, there are other resources which offer guidance in the context of the employment relationship.

Some of the important factors considered in determining whether employment is localized in a state include:

- Where the work day starts and ends.

- Whether the employer has an office in the state claimed.

- Whether the duties performed in a state are merely incidental to the position.³

- Where does the employee receive orders, pay, and supervision.

- If the employee's duties require travel, does the evidence establish that most miles are within a certain state.

- Is there a base of operations in the claimed state.⁴

The National Commission on State Workers' Compensation Law Model Act offers a definition of "localized." However, Missouri has not adopted these provisions of the Model Act. The Model Act generally would suggest that the question of jurisdiction should consider whether employer has a place of business in the state and employee regularly works from that location; or employee is domiciled in the state and spends a substantial part of his working time in the state.⁵ Missouri's legislature has not adopted this simple test for determining localization of a business for coverage under the statute. The best approach may be to review the various factors stated above, for a more refined definition of "principally localized."

The Commission has looked to the Model Act on this question in the past, but has also considered factors beyond the limited inquiry proposed in the Model Act. For example, an over-the-road driver whose contract of employment was in Wisconsin, but who regularly worked from and was required to use a Missouri terminal for truck maintenance, was found to be covered by the Missouri law, where he spent 55% of his travel time throughout Missouri. *Earl Cable v. Schneider Transportation, Inc.*, Injury No. 88-183019 (LIRC, Mr. 7, 1997). In the instant matter before us, none of these factors are present to support Missouri jurisdiction.

In considering the localization question in an Illinois workers' compensation case involving an over-the-road driver, the court noted employee spent 48% of his time driving in Illinois, but he received his orders and pay, and was hired in Missouri, where the principal terminal that he reported to was also located. In that matter, the Illinois court found the employment principally localized in Missouri. *Patton v. Industrial Commission*, 498 N.E. 2d 539 (Ill. App. 1986). In the instant matter before us, none of these factors would favor a finding of Missouri as the principal location.

Cases from other states have focused on where the employee primarily begins and ends his day, despite the fact that the position involved driving through other states.⁶

³ See Missouri Employment Security Law § 288.034.4 RSMo.

⁴ See Missouri Employment Security Law § 288.034.2 RSMo.

⁵ *Earl Cable v. Schneider Transportation, Inc.*, Injury No. 88-183019 (LIRC, Mr. 7, 1997).

⁶ *Johnson v. United Airlines*, 550 So. 2d 134 (Fla. 1st DCA 1989); *Holland v. Workmen's Comp. Appeal Bd. (Pep Boys)*, 137 Pa. Commw. 22, 586 A.2d 988 (1990)

Injury No.: 11-109554

Employee: Milton Wilson

-4-

Regardless of all the guidance that may be available on interpreting the phrase chosen by Missouri's legislature as employment that is "principally localized in this state," (§ 287.110.2) we are constrained by Section 287. 800 to construe the statute strictly.

Employee did not show that the majority of his time, miles, days, or work duties were spent in Missouri or that the employer was principally operating its business in Missouri, as opposed to the several other states where employee drove to perform services. We agree with the administrative law judge in concluding that employee's employment was not proven to be "principally localized" in Missouri and that employee's testimony was insufficient to establish Missouri jurisdiction. Furthermore, we are not persuaded that employee has proven that an occupational disease was contracted in Missouri.

Because we find jurisdiction has not been proven, we must deny the claim. All other issues are moot.

Corrections

In regard to the facts recited by the administrative law judge reporting the opinion of Dr. Michael Poppa, we correct the quoted statement as follows.

Award, page 6, first full paragraph states:

He concludes that Employee, "...is probably or more than unlikely unable to access the open labor market in any capacity."

We correct that statement to read:

He concludes that E