Atkinson v. Timothy Peterson/T & P Foundation

962 S.W.2d 912, 1998 Mo. App. LEXIS 287, 1998 WL 63548
CourtMissouri Court of Appeals
DecidedFebruary 18, 1998
DocketNo. 21653
StatusPublished
Cited by3 cases

This text of 962 S.W.2d 912 (Atkinson v. Timothy Peterson/T & P Foundation) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkinson v. Timothy Peterson/T & P Foundation, 962 S.W.2d 912, 1998 Mo. App. LEXIS 287, 1998 WL 63548 (Mo. Ct. App. 1998).

Opinion

PARRISH, Judge.

Timothy Peterson (employer) appeals an award of the Labor and Industrial Relations Commission (the commission) awarding Gary Atkinson (claimant) benefits. Employer did not have workers’ compensation insurance when claimant was injured. Employer contends he was not subject to the Workers’ Compensation Law (the act). He further contends, alternatively, that the commission erred in finding an accident that occurred March 8, 1992, caused claimant’s injuries. This court affirms.

Employer owns and operates a concrete construction business known as Tim Peterson Construction. It operates, generally, from early spring until November or December. [914]*914Cold weather prevents concrete from being poured. Claimant and other employees experience seasonal lay-offs.

At the end of 1991 employer had two employees, claimant and Pat Murphy. Employer discontinued operating his concrete business at the end of November. He resumed those operations in March 1992.

While claimant and Murphy were laid off, they did farm labor for employer. Neither was paid salaries or hourly wages for the work done on employer’s farm. Each was given a heifer for his work. Employer explained, “I was fixing to have a sale of cattle in the spring and it required a lot of extra work and we was feeding, worming, vaccinating and everything getting these cattle ready to sell to — and they was taking a heifer for the work that they was doing for me.”

On February 17, 1992, claimant was helping load hay onto a trailer from a truck. He explained, “[W]e had to back up to hit the ramps to get the hay on it and I swung around to see if my wheels was going to hit the ramps to go on the trailer and I pulled a muscle or something. I got a crick at that time.”

In March, Tim Peterson Construction was pouring concrete at a ballpark in Mountain Grove. On March 8, while unloading 2 x 12 boards to set a foundation to pour a concrete floor, claimant felt a pain shoot down his right arm. Later that day he told employer that he needed to see a doctor. Employer gave him the name of a doctor.

The next day claimant saw the doctor employer had suggested, Dr. Ball. Dr. Ball diagnosed claimant’s injury as a cervical strain. He referred claimant to Dr. Fred McQueary.

Claimant saw Dr. McQueary on March 12, 1992. The records of Dr. McQueary’s examination state, “I am suspicious that Gary’s pain may [sic] is secondary to cervical radicu-lopathy.” Dr. McQueary prescribed “a cervical traction unit” and medication. Claimant was told to check back in a week. He was told to be off work until March 20. Claimant did not keep the follow-up appointment Dr. McQueary scheduled.

The day after he consulted Dr. McQueary, claimant was treated by Dr. Biesemeyer, a chiropractor. On follow-up, Dr. Biesemeyer recommended that claimant see an orthopedic specialist. On March 25, claimant consulted another chiropractor, Dr. Cook.

On March 81, 1992, claimant went to a hospital emergency room complaining of pain. He was diagnosed with “[p]robable herniated disc at C5-6 on the right.” On April 2, 1992, Dr. H. Mark Crabtree performed an anterior cervical discectomy to correct a herniated disc at C5-6.

Claimant was examined by Dr. David Paff on December 21,1993, for a disability rating. Dr. Paffs opinion was that claimant had “about a twenty percent (20%) permanent partial disability to his body as a whole” following his surgery. A disability rating was also obtained from Dr. Crabtree. Dr. Crabtree rated claimant’s disability at 10% permanent partial disability of the body as a whole.

Claimant filed a claim for workers’ compensation benefits. Following a hearing, the administrative law judge found that claimant sustained a compensable injury in March 1992. The administrative law judge found that claimant sustained a 15% permanent partial disability of the body as a whole as a result of the injury. The commission affirmed the award.

Employer contends the commission erred in making an award because (1) the business he operated as Tim Peterson Construction was not subject to the act, and (2) even if Tim Peterson Construction were subject to the act, claimant failed to prove the injury he sustained was a result of that employment.

In Point I employer argues the commission erred in finding the injury was com-pensable because he had only two employees in 1992; that § 287.090.1(2)1 exempted him from the provisions of the act.

Section 287.060, RSMo 1986, provides:

Every employer and every employee, except as in this chapter otherwise provided, shall be subject to the provisions of this [915]*915chapter and respectively to furnish and accept compensation as herein provided.

Section 287.020.1, RSMo 1986, defines “employee”:

The word “employee” as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations. Any reference to any employee who has been injured shall, when the employee is dead, also include his dependents, and other persons to whom compensation may be payable. The word “employee” shall also include all minors who work for an employer, whether or not such minors are employed in violation of law, and all such minors are hereby made of full age for all purposes under, in connection with, or arising out of, this chapter.

“Employer,” as applicable to this case, is defined in § 287.030:

1. The word “employer” as used in this chapter shall be construed to mean:
(1) Every person ... using the service of another for pay;
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(3) Any of the above defined employers must have five or more employees to be deemed an employer for the purposes of this chapter unless election is made to become subject to the provisions of this chapter as provided in subsection 2 of section 287.090, except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for the purposes of this chapter if they have one or more employees. [Emphasis added.]
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The commission, adopting findings of fact and conclusions of law entered by the administrative law judge who heard claimant’s case, found that claimant sustained an accident on February 17, 1992, that was not compensable under the act because claimant was engaging in farm labor at that time. See § 287.090.1(1).

The commission further found that on March 8, 1992, claimant sustained another injury that was compensable. It concluded that the provision of § 287.030.1(3) that deems construction industry employers with one or more employees an “employer” for purposes of the act applied.

Employer contends this was error in view of § 287.090.1 that states, in pertinent part:

This chapter shall not apply to:
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Loven v. Greene County
63 S.W.3d 278 (Missouri Court of Appeals, 2001)
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Cite This Page — Counsel Stack

Bluebook (online)
962 S.W.2d 912, 1998 Mo. App. LEXIS 287, 1998 WL 63548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-timothy-petersont-p-foundation-moctapp-1998.