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Busselle v. Wal-Mart1/31/2001
Wal-Mart ("Appellant" or "Wal-Mart") appeals from the April 11, 2000 Labor and Industrial Relations Commission's Final Award Allowing Compensation, which affirmed and incorporated the December 7, 1999 award and decision of the Administrative Law Judge that found that Wal-Mart was, under § 287.040.1, RSMo 1994, the statutory employer of Joe Busselle ("Respondent" or "Busselle").
Appellant contends that the Labor and Industrial Relations Commission ("Commission") erred as a matter of law in holding Wal-Mart liable as a statutory employer because Busselle, an independent electrical contractor with special expertise, was at the time of his injury doing electrical work outside the usual course of Wal-Mart's business of retail sales and thus was not under Wal-Mart's "employment" for purposes of the statute.
Joe Busselle had worked as an electrician since 1940. In the year prior to his accident, Busselle worked between twenty and thirty hours per week for a variety of customers, doing electrical contracting. In addition to the Wal-Mart store in Bolivar, Missouri, where the injury occurred, Busselle also performed occasional electrical work at the Wal-Mart in Buffalo, Missouri. He had separate agreements with each store.
Busselle first performed electrical work for Wal-Mart when he was engaged to install electrical wiring in the Buffalo store prior to its opening. He later made agreements with the Buffalo store and the Bolivar store to change ballasts in fluorescent lighting fixtures as-needed after Wal-Mart's home office instructed Wal-Mart store managers to permit only licensed electricians to perform such tasks. Prior to this change in policy, Wal-Mart employees changed the ballasts.
There was no regular schedule for Busselle to inspect or change the ballasts at the Bolivar Wal-Mart. Busselle came in to change the ballasts when Wal-Mart contacted him. Mark Harmsworth, manager of the Bolivar Wal-Mart, testified that Busselle was contacted to change the ballasts "usually once a month or once every two months," although the store included the expense of Busselle's services in its monthly budget. Busselle testified that he performed the work " henever they called me," which was "usually about every week or two."
The Bolivar Wal-Mart at the time of Busselle's injury was lighted by "probably more than hundreds" of fluorescent lights. Wal-Mart has the ballasts and fluorescent light bulbs changed at the same time, whenever the light bulbs "burn out." Pursuant to Wal-Mart's contract with Busselle, Wal-Mart provided the ballasts and light tubes, the ladder, and an employee to assist Busselle. Busselle used his own pliers and screwdrivers to change the lighting fixtures. The Wal-Mart employee would assist Busselle by moving the ladder and handing the light tubes and ballasts to Busselle.
Busselle's injury occurred on December 7, 1994, when he was trying to change a lighting fixture in the autobay in the automotive section of the Bolivar store. The ceiling in the autobay is higher than in the other areas of the Wal-Mart store, and the ladder Wal-Mart provided was not high enough for Busselle to reach the lighting fixture. Busselle attempted to reach the fixture by standing on a concrete block a Wal-Mart employee placed on top of the ladder. While Busselle was standing on the block to fix the light fixture, the block shifted. Busselle fell from the ladder and was injured.
Busselle's injuries and medical bills are not in dispute. The only issue on appeal is whether Wal-Mart was the statutory employer of Busselle under § 287.040.1, RSMo 1994, and thus liable to Busselle for workers' compensation.
Decisions of the Labor a
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