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Busselle v. Wal-Mart1/31/2001
nd Industrial Relations Commission must be upheld if supported by competent and substantial evidence on the whole record. Leslie v. School Services & Leasing, Inc., 947 S.W.2d 97, 99 (Mo.App. 1997). Findings and awards of the Commission which are based on the interpretation of law, rather than the determination of facts, are subject to correction by the court. Id. "Where the facts are not in dispute as to the nature of the agreement and the work required by it, the existence or absence of statutory employment is a question of law for the courts to decide." Bass v. National Super Markets, Inc., 911 S.W.2d 617, 621 (Mo.banc 1995), cert. denied, 517 U.S. 1208 (1996).
Section 287.040.1, RSMo 1994, provides that
ny 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 . . . when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.
The purpose of this section is "to prevent employers from circumventing the requirements of the Act by hiring independent contractors to perform work the employer would otherwise perform." Bass at 619. The courts are to construe the statute liberally, "deciding close cases in favor of workers' compensation coverage." Id. See also Leslie, 947 S.W.2d at 99 (liberal construction of Missouri's Workers' Compensation Act required "so as to extend its benefits to the largest possible class").
A court may find that an employer is a "statutory employer" if the injured party performed the work pursuant to a contract, the injury complained of occurred on or about the premises of the alleged statutory employer, and the work performed by the injured party was in the usual course of business of the alleged statutory employer. See Bass at 619 (Mo.banc 1995); DiMaggio v. Johnston Audio/D & M Sound, 19 S.W.3d 185, 189 (Mo.App. 2000).
The first two elements are not at issue in this case. The parties agree that Wal-Mart orally contracted with Busselle to change the ballasts and light tubes on its fluorescent lighting fixtures and that Busselle was injured while performing such tasks within the Wal-Mart store. However, the parties dispute whether the work that Busselle performed was in the usual course of Wal-Mart's business.
The term "usual business" as used in ยง 287.040.1, RSMo 1994, refers to
those activities (1) that are routinely done (2) on a regular and frequent schedule (3) contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time (4) the performance of which would require the statutory employer to hire permanent employees absent the agreement. Bass, 911 S.W.2d at 621; see also DiMaggio, 19 S.W.3d at 189-90.
In Bass, the court found that a supermarket was the statutory employer of the employee of a company who had an agreement with the supermarket to perform janitorial duties on a routine basis. The employee, who was killed during a robbery, was found to be performing work within the usual course of the supermarket's business when the injury occurred. The court noted that the supermarket "would have had either to assign floor care duties to its staff or to hire a staff specifically to maintain its floors" absent its agreement with the independent contractor, as maintaining clean facilities was required by the Department of Health regulations under which the supermarket operated. Id. at 622.
By requiring that the activities be done on a regular and frequent schedul
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