Busselle v. Wal-Mart

37 S.W.3d 839, 2001 Mo. App. LEXIS 191, 2001 WL 77078
CourtMissouri Court of Appeals
DecidedJanuary 31, 2001
DocketNo. 23660
StatusPublished
Cited by5 cases

This text of 37 S.W.3d 839 (Busselle v. Wal-Mart) 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
Busselle v. Wal-Mart, 37 S.W.3d 839, 2001 Mo. App. LEXIS 191, 2001 WL 77078 (Mo. Ct. App. 2001).

Opinion

PREWITT, Judge.

Wal-Mart (“Appellant” or “Wal-Mart”) appeals from the April 11, 2000 Labor and Industrial Relations Commission’s Final Award Allowing Compensation, which affirmed and incorporated the December 7, 1999 award and decision of the Administrative Law Judge that found that Wal-Mart was, under § 287.040.1, RSMo 1994, the statutory employer of Joe Busselle (“Respondent” or “Busselle”).

Appellant contends that the Labor and Industrial Relations Commission (“Commission”) erred as a matter of law in holding Wal-Mart liable as a statutory employer because Busselle, an independent electrical contractor with special expertise, was at the time of his injury doing electrical work outside the usual course of Wal-Mart’s business of retail sales and thus was not under Wal-Mart’s “employment” for purposes of the statute.

Joe Busselle had worked as an electrician since 1940. In the year prior to his accident, Busselle worked between twenty and thirty hours per week for a variety of customers, doing electrical contracting. In addition to the Wal-Mart store in Bolivar, Missouri, where the injury occurred, Bus-selle also performed occasional electrical work at the Wal-Mart in Buffalo, Missouri. He had separate agreements with each store.

Busselle first performed electrical work for Wal-Mart when he was engaged to install electrical wiring in the Buffalo store prior to its opening. He later made agreements with the Buffalo store and the Bolivar store to change ballasts in fluorescent lighting fixtures as-needed after Wal-Mart’s home office instructed Wal-Mart store managers to permit only licensed electricians to perform such tasks. Prior to [841]*841this change in policy, Wal-Mart employees changed the ballasts.

There was no regular schedule for Bus-selle to inspect or change the ballasts at the Bolivar Wal-Mart. Busselle came in to change the ballasts when Wal-Mart contacted him. Mark Harmsworth, manager of the Bolivar Wal-Mart, testified that Bus-selle was contacted to change the ballasts “usually once a month or once every two months,” although the store included the expense of Busselle’s services in its monthly budget. Busselle testified that he performed the work “[w]henever they called me,” which was “usually about every week or two.”

The Bolivar Wal-Mart at the time of Busselle’s injury was lighted by “probably more than hundreds” of fluorescent fights. Wal-Mart has the ballasts and fluorescent fight bulbs changed at the same time, whenever the fight bulbs “burn out.” Pursuant to Wal-Mart’s contract with Bus-selle, Wal-Mart provided the ballasts and fight tubes, the ladder, and an employee to assist Busselle. Busselle used his own pliers and screwdrivers to change the fighting fixtures. The Wal-Mart employee would assist Busselle by moving the ladder and handing the fight tubes and ballasts to Busselle.

Busselle’s injury occurred on December 7, 1994, when he was trying to change a fighting fixture in the autobay in the automotive section of the Bolivar store. The ceiling in the autobay is higher than in the other areas of the Wal-Mart store, and the ladder Wal-Mart provided was not high enough for Busselle to reach the lighting fixture. Busselle attempted to reach the fixture by standing on a concrete block a Wal-Mart employee placed on top of the ladder. While Busselle was standing on the block to fix the fight fixture, the block shifted. Busselle fell from the ladder and was injured.1

Busselle’s injuries and medical bills are not in dispute. The only issue on appeal is whether Wal-Mart was the statutory employer of Busselle under § 287.040.1, RSMo 1994, and thus liable to Busselle for workers’ compensation.

Decisions of the Labor and 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, 116 S.Ct. 1825, 134 L.Ed.2d 930 (1996).

Section 287.040.1, RSMo 1994, provides that

[a]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 [842]*842construction 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 Bus-selle 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 § 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.

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Cite This Page — Counsel Stack

Bluebook (online)
37 S.W.3d 839, 2001 Mo. App. LEXIS 191, 2001 WL 77078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/busselle-v-wal-mart-moctapp-2001.