No. 11-076364 (Mo. Lab. & Indust. Rel. Comm’n. August
28, 2018 )
Full Opinion: [Michale Densmore v. Barnes Industrial Group, INC.]
Code(s): C019 Employment
Factual
Background:
Employer was attempting to expand his concrete automation
business into installation and welding projects. Employer contacted Claimant and discussed the
terms of the Columbia job. They addressed the job to be performed and the rate
of pay to be received. Negotiations regarding Claimant receiving a work phone
and benefits were continued. The Columbia job was scheduled on a weekend to
accommodate Claimant’s schedule. While on the job, Claimant’s middle finger was
smashed by a steel pipe which resulted in amputation. Claimant was paid $50/hr
and his equipment was used. After the accident Employer decided not to proceed
with Claimant for the expansion of his business but instead hired two other
employees.
ALJ Decision:
The ALJ found Claimant had failed to establish a contract
for hire existed because negotiations were still ongoing. Claimant failed to
satisfy the right to control factors (1) The extent of the control, (2) the
actual exercise of control, (3) the duration of employment, (4) the right of
discharge,(5) the method of payment, (6) the degree to which the alleged
employer furnished the equipment, and (8) the employment contract. Hutchinson v. St. Louis Altenheim, 858
S. W. 2d 304, 305(Mo. App. E.D. 1993)
Analysis/Holding:
The LIRC affirmed the decision of the ALJ with a
supplemental opinion. The LIRC agreed with the ALJ decision that the parties’
relationship was not subject to the Missouri Workers’ Compensation Act. They
found nothing within the language of section 287.020.1 to suggest or require a
conclusion that there was no contract of hire where the parties contemplate
further negotiation. They held Claimant
failed to establish sufficient facts to show the employer had control because Employer
worked around Claimant’s schedule, Employer did not control performance, and
the job was limited in duration.
The Takeaway:
The Act does not cover a Claimant when no promises were made
for continued employment, the job was limited in duration, performance of the
job wasn’t controlled by Employer, and Claimant chose the days he would work.