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Busselle v. Wal-Mart1/31/2001
e as contemplated in their agreement, the court in Bass excluded "specialized or episodic work that is essential to the employer but not within the employer's usual business as performed by its employees." Appellant argues that because there was no "set" routine or schedule by which Busselle would change the light tubes and ballasts, his work was not routine or frequent.
We do not think that a "set" routine is required to meet this element of the test enunciated in Bass. Busselle's work was routine in that he was routinely contacted whenever enough lights had burned out to make his time worthwhile, which, although the testimony differs, appears to have been at least once a month. Busselle would spend several hours changing the tubes and ballasts on each occasion that he came. Wal-Mart clearly anticipated that this work would be needed on a regular basis, as it included the expense in its monthly budget. The sheer number of lighting fixtures used in the store, and the necessity that they remain lit when the store was open suggest that the store would need to have the bulbs and ballasts changed repeatedly throughout the year.
Cases following the routine/frequent test that the Bass court cited in its opinion are instructive. See Bass at 620-21. Unanticipated repairs, remodeling, and episodic maintenance, such as painting water storage tanks, were all held to be outside the usual business of the employer. See id. These tasks clearly could not be "contemplated . . . to be repeated over a relatively short span of time." In contrast, guard services, full-time maintenance of heating and air-conditioning units, and floor sweeping were all tasks found to be within the usual business of the putative employer. See id. Although the facts here may fall in between these extremes, we believe that the work Busselle performed can more accurately be classified as "routine" in nature, as opposed to episodic. Close cases are decided for workers' compensation coverage. See id. at 621
A case recently decided by the Eastern District that addresses the routine/frequent test merits consideration here. In that case, Tullman v. St. Louis Science Center, No. ED77535, slip op. (Mo.App. January 2, 2001), the court held the Missouri Workers' Compensation Law did not apply to Midwest Woodworking's employee, Tullman's, claim for damages for injuries sustained at work because the work performed was not the usual business of the putative employer, St. Louis Science Center. Tullman's employer, Midwest Woodworking, an independent contractor, did a variety of carpentry work for St. Louis Science Center, some of which was needed routinely, such as building exhibit walls, and other which was episodic. There was no formal contract or agreement for the work; rather, a separate work order would be drawn up for each particular job. The Eastern District held that because there was no agreement contemplating the work to be performed, nor a regular and frequent schedule for the work, Midwest's work was not the usual business of St. Louis Science Center.
The facts of the present case are distinguishable from those in Tullman. Here, there was a clear agreement between Wal-Mart and Busselle that Busselle would change the light tubes and ballasts at Wal-Mart as needed. The parties do not dispute that there was such an agreement, or that the work Busselle performed was the work contemplated by the agreement. The agreement did not have to be in writing. Although on one or two occasions, Busselle may have been contacted to do skilled electrical work not contemplated in his agreement with Wal-Mart, that is irrelevant here, as Busselle was injured while doing the work contemplated by the agreement.
The final fact
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