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Otte v. Langley's Lawn Care11/13/2001
Appeal From: Labor and Industrial Relations Commission
Opinion Vote: AFFIRMED IN PART AND DISMISSED IN PART. Teitelman, P.J., and Gaertner, J., concur.
David Otte (claimant) was paralyzed following an automobile accident on June 16, 1995. He filed a workers' compensation claim against his employer, Langley Lawn Care, Inc. (employer). The Administrative Law Judge (ALJ) found that the accident did not arise in or out of the course of claimant's employment and denied the claim. The Labor and Industrial Relations Commission (commission), one commissioner dissenting, reversed the ALJ's decision and found that the accident did arise in and out of the course of claimant's employment. The commission found employer liable for past medical expenses, future medical care, and temporary total and permanent partial disability benefits. The commission further found that employer allowed its workers' compensation insurance through Travelers Insurance Company (insurer) to lapse and that the Second Injury Fund (SIF), under section 287.220.5 RSMo (1994) , was liable for claimant's past and future medical expenses. Employer, claimant, and the SIF appeal. We affirm in part and dismiss in part.
The facts in the light most favorable to the award are as follows. Claimant began working as a laborer for employer three days prior to the accident. During the employment negotiations, Mr. Langley, president of employer, offered claimant a wage of $7.50 per hour although claimant was earning $8.00 per hour at his then current job. Claimant testified that he discussed the difference with Mr. Langley and to compensate for the difference between the wages claimant could ride with his brother, who also was employed by employer, in a truck loaned to the brother by Mr. Langley. The truck was owned personally by Mr. Langley but the truck had signs on it that advertised employer, employer paid for the vehicle's maintenance and insurance, and the truck was used occasionally by employer at work sites and to carry tools and equipment of employer.
On June 16, the brothers finished their work for the day but delayed leaving until they had received their paychecks. On their way home, in the truck loaned by Mr. Langley, the brothers were in an accident. Claimant was paralyzed from the waist down.
There was also a dispute concerning whether employer had workers' compensation insurance at the time of the accident. Insurer had provided workers' compensation insurance for employer since 1991 under a series of annual policies, which renewed on June 3 each year. On March 23, 1995, insurer sent employer a notice that the policy expiration date was June 3, 1995 and a quotation showing an estimated renewal premium of $5,300 and that a renewal payment of $3,976 was due by June 2, 1995. The premium amount was based on payroll classification information and was approximately seventy-five percent of the annual premium.
The notice stated:
IN ORDER TO AVOID A LAPSE IN COVERAGE, YOUR RENEWAL PAYMENT MUST BE RECEIVED BY THE DUE DATE SHOWN ABOVE. DEPENDING ON THE PLAN REQUIREMENTS, IF PAYMENT IS NOT RECEIVED BY THE DUE DATE, EITHER THE POLICY WILL BE ISSUED WITH A LAPSE IN COVERAGE OR YOUR PREMIUM CHECK WILL BE RETURNED AND NO POLICY WILL BE ISSUED.
The premium was not paid by the June 2, 1995 due date. Employer issued a check dated June 15 which was mailed in an envelope with a postage meter date and taken to a post office where the postage meter date was cancelled with a postal mark date stamp. The parties disputed whether the date of mailing was June 15 or 16. The commission found that the envelope was mailed June 16. The check was received by insurer on June 20 and on
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