 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Wilmeth v. TMI9/12/2000
TMI, Inc., (TMI) and the state treasurer, as custodian of the Second Injury Fund, each appeal a final award of the Labor and Industrial Relations Commission (the commission) to Dick Wilmeth (claimant) for disability compensation and medical benefits. TMI's appeal is No. 23525. The Second Injury Fund's appeal is No. 23546. The appeals have been consolidated.
The commission's final award adopted the administrative law judge's award and decision. The commission found that "claimant was an employee of and the parties were operating under and subject to The Workers' Compensation Law for the State of Missouri." It found:
On or about March 11, 1994 [claimant] suffered a motor vehicle accident while driving a truck for . At the time of the accident [claimant] was hauling an empty trailer from Booneville , Missouri to Crescent, Iowa to pick-up a load for . [Claimant] was operating the truck at the direction of Mr. Van Winkle of . The evidence is lacking of any indication that [claimant] was not where he should be, or that he was engaged in activity, different from which he had been retained to perform.
The commission concluded "that the accident arose out of and in the course of [claimant's] employment with "; that "claimant is thus entitled to and is responsible for providing benefits under Chapter 287, RSMo." The commission further found, "Similarly, pursuant to Section 287.220.5, RSMo, the Treasurer of Missouri, as the custodian of the Second Injury Fund, is liable for payment of medical care and expenses causally related to the accident of March 11, 1994."
Scope of Review
In its review this court views the evidence and legitimate inferences that arise from that evidence in the light most favorable to the commission's award. Johnson v. City of Kirksville, 855 S.W.2d 396, 398 (Mo.App. 1993). It will not substitute its judgment on issues of fact for that of the commission. Id. The commission's award will be set aside only if there is no substantial evidence to support it or it is clearly contrary to the overwhelming weight of the evidence. Id. All doubts in a workers' compensation case are resolved in the favor of the claimant. Id.
Issues Common to Both Appeals
TMI presents two points on appeal. The Second Injury Fund presents five points. The first point in each appeal raises the same issue. Point II of TMI's appeal and Point III of the Second Injury Fund's appeal are directed to related issues.
Point I in each appeal asserts the commission erred in finding TMI was subject to The Workers' Compensation Law. TMI and the Second Injury Fund contend claimant failed to prove TMI had five or more employees as required by section 287.030.1(3) in order to be deemed an employer for purposes of Missouri's workers' compensation law and thereby be subject to it. See section 287.040.
Claimant began working for TMI in 1990. S.G. Van Winkle, who was usually referred to as "Spud," called claimant about driving for TMI. Claimant was in Springfield, Missouri, when he received the call. Mr. Van Winkle called him from Sulphur Springs, Texas. Mr. Van Winkle wanted him to drive for TMI. Claimant had his own truck at the time. He was told to go to Boonville, Missouri, and sign a lease and pick up a trailer that TMI had leased for his use. He did that. A document entitled "Lease and Agreement" was introduced in evidence as the "lease" claimant originally signed. S.G. Van Winkle was designated as "Lessee." The agreement provided for claimant to be compensated by payment of a percentage of gross revenue produced by the trips he made. It was for a term "beginning on Jan, 2, 1990 and ending on Jan. 2, 199
Page 1 2 3 4 5 6 7 8 Missouri Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|