                                        In the
                        Missouri Court of Appeals
                                 Western District
 ROMMAE HAYES,                               )
                                             )
                Appellant,                   )   WD82256
                                             )
 v.                                          )   OPINION FILED:
                                             )   September 3, 2019
 GINGER C, LLC AND TREASURER                 )
 OF THE STATE OF MISSOURI,                   )
 CUSTODIAN OF THE SECOND                     )
 INJURY FUND,                                )
                                             )
              Respondents.                   )

            Appeal from the Labor and Industrial Relations Commission

Before Division One: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and
                                Alok Ahuja, Judge


      Rommae Hayes ("Hayes") appeals from the Labor and Industrial Relations

Commission's ("Commission") final award denying his claim for workers' compensation

benefits. Hayes asserts that the Commission's denial of benefits was erroneous because:

(1) the overwhelming weight of the evidence established that, at the time of his accident,

Ginger C, LLC ("Ginger C") was a construction industry employer having at least one

employee or alternatively an employer with five or more employees, and that Hayes was
an employee of Ginger C; and (2) the overwhelming weight of the evidence established

that a statutory employment relationship existed between Hayes and Ginger C. Finding no

error, we affirm.

                            Factual and Procedural History

       Nakhle Asmar ("Asmar") is the owner of Ginger C. Ginger C owns houses and

apartments that it rents to students, low-income residents, and veterans in the Columbia,

Missouri area. Ginger C's sole source of income is rent paid by tenants.

       In February 2013, Hayes was released from prison on an early release program, and

lived at Reality House in Columbia, Missouri. Hayes was required to be employed at least

forty hours a week. Another Reality House resident, Weston Magee ("Magee"), performed

renovation, repair, and maintenance work on Ginger C's rental properties. Hayes's parole

officer asked Magee to assist Hayes in obtaining a job with Ginger C. Hayes had forty

years of experience in construction, including experience paving and performing concrete

and highway work.

       Hayes began performing renovation, repair, and maintenance on Ginger C's rental

properties in April 2013. Asmar testified that Ginger C does not undertake to perform any

construction work beyond renovating, repairing, or conducting maintenance on its own

rental properties. Asmar testified that in 2013, Ginger C used independent contractors to

perform this work. Asmar testified that he advised persons hired to work on Ginger C's

rental properties that they were independent contractors working by the job. Ginger C

issued 1099 forms to persons hired to perform renovation, repair, or maintenance work on

its rental properties, and did not withhold taxes from checks paid for work performed.

                                            2
Ginger C did not provide health insurance, vacation days, or sick leave to any of the persons

hired to perform renovation, repair, or maintenance work on its rental properties.

       Asmar testified that Hayes was not always available to perform renovation, repair,

or maintenance work on Ginger C's rental properties because Hayes worked independently

on other properties, including projects in Moberly. Asmar testified that when Hayes was

available, Hayes would either submit a bid for work that needed to be performed, or he

would bill Ginger C at an hourly rate. Asmar testified that if Hayes did not first bid for a

job, Hayes received $12 per hour, plus the cost of any materials provided. Ginger C also

reimbursed Hayes for the use of his personal truck. Asmar testified that he received all

calls for maintenance from Ginger C's tenants, and that he would direct maintenance calls

to various independent contractors, including Hayes. Asmar testified that Hayes was not

obligated to accept a request to perform maintenance work. Asmar testified that Hayes

always provided his own tools, and that if Hayes needed a tool to perform work for Ginger

C, it would be purchased for him with the cost deducted from Hayes's check.

       Hayes testified that Asmar did not tell him he was an independent contractor, or that

he worked job to job. Hayes testified that at the beginning of his employment relationship

with Ginger C, he was paid $10 per hour and worked at least forty hours per week. Hayes

testified that after two weeks on the job, Ginger C increased his pay to $12 per hour and

compensated him for the use of his truck. Hayes testified that Asmar would pay him every

Friday by check for work completed during the week, and that Asmar would write another

check on Monday morning for work completed by Hayes on Saturday and Sunday. Hayes

testified that he "never missed a week" of work with Ginger C. Hayes produced no pay

                                             3
stubs in support of his claims about the amount he was paid per hour or about the number

of hours worked, though he claimed they were available.

        Hayes testified that the work he did for Ginger C ranged from changing light bulbs

to fully renovating rental properties. Hayes explained that Asmar would call him every

morning to tell him what work needed to be done on Ginger C's rental properties before

meeting Hayes and other workers at a local hardware store to buy the materials needed.

Hayes testified that, while he had "simple tools" from his forty years in the construction

industry, he did not have all of the tools necessary for the work he did for Ginger C. Hayes

confirmed that Asmar would purchase any tools he needed from a local hardware store and

that the cost of these tools were deducted from his weekly checks.

        Hayes testified that Asmar never told Hayes how to do work he was asked to

perform, and that Asmar relied on Hayes to assess each job to determine whether he was

qualified to perform requested work. Hayes claimed that over time, he began receiving

maintenance calls directly from Ginger C's tenants and that he began carrying the keys to

all of Ginger C's properties.

        In June 2013, Ginger C purchased a triplex at 1500 Hinkson in Columbia ("Hinkson

property"). The Hinkson property required repairs, including replacement of the concrete

basement floor, before it could be rented to tenants. Ginger C solicited a bid from

Columbia Maintenance Company for the concrete work. Hayes and Roland Nabhan

("Nabhan")1 (Asmar's brother-in-law who also did renovation, maintenance, and repair


        1
          The transcript of the hearing before the Administrative Law Judge indicates that Nabhan's named is
spelled "Nabahan," but in a deposition entered into evidence, Nabhan spelled his last name as "N-a-b-h-a-n" for the
court reporter. We use the spelling provided by Nabhan himself.

                                                         4
work for Ginger C) learned of the quote, and offered to perform the work for less than

Columbia Maintenance Company's bid. Asmar testified that "Hayes claimed to be an

expert in concrete laying and he said, 'We can do a much better job much cheaper for you,'"

without giving a more precise bid. Nabhan's testimony supported Asmar's recollection.

Nabhan testified that Asmar solicited a bid from "somebody else," but that he and Hayes

said they could do the job for cheaper. Hayes testified to a different version of events, and

claimed that Nabhan told Asmar, "No, no. Don't you do that. We're going to do it now."

Hayes testified that he and Magee "griped about it" because neither had the skills necessary

to perform concrete work.

       On June 26, 2013, Nabhan arranged for the delivery of concrete and necessary tools

to the Hinkson property so that he, Magee, and Hayes could replace the concrete floor in

the basement. Nabhan worked outside with the concrete mixer truck, pouring concrete into

a wheelbarrow. Magee moved the wheelbarrow where needed and dumped concrete on

the floor. Hayes smoothed the concrete before it set up. At some point, concrete got into

Hayes's boots, but he continued working.

       After the job was complete, Hayes took off his boots to find that he had concrete

burns on his legs. Hayes initially went to a local pharmacy and purchased a burn ointment,

but later went to the hospital. Hayes was admitted to the burn unit, where he was diagnosed

with third-degree burns. Skin grafts were required on both of Hayes's legs. Hayes spent

four days in the hospital. Hayes testified that he missed two to three weeks of work as a

result of his injuries. Hayes did not receive any further medical treatment for his injuries

after mid-2013.

                                             5
         Hayes filed a claim for workers' compensation benefits on May 21, 2015, seeking

compensation for injuries to his lower extremities and body as a whole, and seeking

benefits from the Second Injury Fund because Ginger C failed to insure itself against claims

for workers' compensation.2 Hayes's claim was heard by an Administrative Law Judge

("ALJ") on August 29, 2017, and September 6, 2017. At the beginning of the hearing, the

parties advised the ALJ they had stipulated that: (1) "[O]n June 26, 2013, while in the

employment of Ginger C . . . , [Hayes] sustained an injury by accident in Columbia,

Missouri;" (2) "[Ginger C] had notice of the injury and a claim for compensation that was

timely filed;" and (3) "[Ginger C] has paid no benefits to date." In addition, the parties

confirmed with the ALJ that the agreed upon issues to be determined included whether

Hayes's injury by accident "ar[ose] out of and in the course of employment," and whether

the Second Injury Fund had liability given Ginger C's uninsured status.3

         During the hearing, Hayes, Asmar, and Nabhan testified and the ALJ received

exhibits. Following the hearing, the ALJ issued a written decision on December 6, 2017,

denying Hayes's claim ("ALJ Award"). The ALJ Award described the parties' stipulations,

framing the first as whether "[Hayes] sustained an injury by accident while doing work for

Ginger C . . . on June 26, 2013, in Columbia, MO."4 The ALJ Award made numerous


         2
           Section 287.220.5 provides that if an employer fails to insure or self-insure against liability for workers'
compensation claims, funds from the Second Injury Fund may be withdrawn to cover the fair, reasonable, and
necessary expenses relating to an employee's injury or death. All statutory references are to RSMo 2000 as
supplemented through June 26, 2013, the date giving rise to Hayes's workers' compensation claim, unless otherwise
indicated.
         3
           The additional agreed upon issues to be determined were medical causation, liability for past medical
expenses, and the amount and type of compensation to be paid assuming a compensable claim.
         4
           The stipulation spread on the record at the beginning of the hearing before the ALJ was that on "June 26,
2013, while in the employment of Ginger C . . . , [Hayes] sustained an injury by accident." (Emphasis added.)
Hayes does not argue on appeal, however, that the stipulation spread on the record before the ALJ hearing is

                                                           6
findings of fact, including a finding that Hayes was not credible and his testimony could

not be relied on, because "[h]is testimony was full of false statements and exaggerations."

The ALJ Award found that Asmar and Nabhan were credible witnesses.

         The ALJ Award concluded that Hayes's injury did not occur in the course and scope

of his employment because Hayes was not an "employee" as defined by the Workers'

Compensation Law,5 and that even if Hayes was an employee as defined by the Workers'

Compensation Law, Ginger C was not an "employer" subject to the Workers'

Compensation Law. The ALJ thus concluded that Ginger C was not required to have

workers' compensation insurance and that the Second Injury Fund had no liability to Hayes.

         Hayes appealed the ALJ Award to the Commission. By a 2-1 vote, the Commission

affirmed the ALJ Award and incorporated it by reference into the Commission's final award

("Final Award"). The dissenting commissioner concluded that Hayes's injury was

compensable because, pursuant to section 287.040.1, a statutory employment relationship

existed between Ginger C and Hayes.

         Hayes filed this timely appeal. Additional facts are discussed as necessary to

address Hayes's claims on appeal.




inconsistent with the characterization of the stipulation set forth in the ALJ Award, or that Ginger C made a binding
stipulation that Hayes was an "employee" of Ginger C as defined by the Workers' Compensation Law. Instead, it
appears from the record that the parties intended their "stipulated fact" to refer simply to an agreement that at the
time of Hayes's injury, he was doing work for Ginger C, as noted in the ALJ Award. See Boyer v. Nat'l Express Co.,
49 S.W.3d 700, 705 (Mo. App. E.D. 2001) (holding that a stipulation must be viewed in light of the result the parties
were attempting to accomplish). Hayes's claim was tried in a manner that is consistent with this conclusion, as a
substantial portion of the testimony and evidence presented to the ALJ was relevant only to resolving whether Hayes
was an employee or an independent contractor. Moreover, the parties stipulated that an issue to be determined by
the ALJ was whether Hayes was injured in the course and scope of employment with Ginger C, an issue that
subsumes within its ambit whether Hayes was even an employee.
          5
            The Workers' Compensation Law is found in Chapter 287.

                                                         7
                                   Standard of Review

       Section 287.495.1 controls our standard of review of the Final Award:

       The court, on appeal, shall review only questions of law and may modify,
       reverse, remand for rehearing, or set aside the award upon any of the
       following grounds and no other:

       (1) That the commission acted without or in excess of its powers;

       (2) That the award was procured by fraud;

       (3) That the facts found by the commission do not support the award;

       (4) That there was not sufficient competent evidence in the record to warrant
       the making of the award.

Because the Commission affirmed and adopted the findings and conclusions in the ALJ

Award, we review the ALJ's findings and conclusions for error. McDowell v. St. Luke's

Hosp. of Kansas City, 572 S.W.3d 127, 131 (Mo. App. W.D. 2019).

       "'We review the whole record to determine whether there is sufficient and

substantial evidence to support the award or if the award is contrary to the overwhelming

weight of evidence.'" Id. (quoting Gleason v. Treasurer of State of Mo.-Custodian of

Second Injury Fund, 455 S.W.3d 494, 497 (Mo. App. W.D. 2015)). We defer to the

Commission's factual findings, including those findings about the credibility of witnesses.

Id. We "'may not substitute [our] judgment on the evidence, and when the evidence before

an administrative body would warrant either of two opposing findings, the reviewing court

is bound by the administrative determination, and it is irrelevant whether there is supportive

evidence for the contrary finding.'" City of Columbia v. Palmer, 504 S.W.3d 739, 744 (Mo.

App. W.D. 2016) (quoting Riley v. City of Liberty, 404 S.W.3d 434, 439 (Mo. App. W.D.



                                              8
2013)). Any determinations of law made by the Commission, though, are reviewed de

novo. Id.

                                          Analysis

       Hayes presents two points on appeal, both of which challenge the Commission's

conclusion that Hayes's injury was not compensable under the Workers' Compensation

Law.

Point One: Existence of Employer-Employee Relationship

       Hayes's first point on appeal claims that the Commission erred in concluding that

Ginger C was not an employer, and that he was not an employee, as contemplated by

Chapter 287. Specifically, Hayes claims that "the facts found by the Commission do not

support the award and such findings are not supported by competent and substantial

evidence," in that "the overwhelming weight of the evidence proves that . . . Ginger C was

a construction industry employer having at least one employee;" that "Ginger C employed

five or more employees;" and that "at the time of his accident [Hayes] was working as an

employee for Ginger C." [Appellant's Brief, p. 17]

       "'The Workers' Compensation Law provides the exclusive remedy against

employers for injuries covered by its provisions.'" State ex rel. Tri-Cty. Elec. Coop. Ass'n

v. Dial, 192 S.W.3d 708, 710 (Mo. banc 2006) (quoting State ex rel. Taylor v. Wallace, 73

S.W.3d 620, 621-22 (Mo. banc 2002)). "The claimant in a workers' compensation case has

the burden to prove all the essential elements of [his] claim . . . ." Jefferson City Country

Club v. Pace, 500 S.W.3d 305, 313 (Mo. App. W.D. 2016). Section 287.120.1 provides

that "[e]very employer subject to the provisions of this chapter shall be liable, irrespective

                                              9
of negligence, to furnish compensation under the provisions of this chapter for personal

injury or death of the employee by accident arising out of and in the course of the

employee's employment." Thus, section 287.120.1 obligated Hayes to prove that, at the

time of his injury: (1) Ginger C was an "employer" as defined by Chapter 287; (2) Hayes

was an "employee" as defined by Chapter 287; (3) Hayes suffered personal injury by

accident; and (4) Hayes's injury arose out of and in the course of his employment with

Ginger C. The Final Award concluded that Hayes failed to prove two of these essential

elements for recovery: that Ginger C was an employer, and that Hayes was an employee of

Ginger C.

       Hayes's first point on appeal challenges both of these conclusions, and is

multifarious in violation of Rule 84.04. Kirk v. State, 520 S.W.3d 443, 450 n.3 (Mo. banc

2017) (holding a point relied on violates Rule 84.04 if "it groups together multiple,

independent claims rather than a single claim of error"). A multifarious point on appeal

preserves nothing for appellate review. Id. However, as explained in this opinion,

resolution of Hayes's claim of error involving his status as an employee of Ginger C is

sufficient to resolve this appeal. As a result, we exercise our discretion to review the merits

of that claim ex gratia. See Griffitts v. Old Republic Ins. Co., 550 S.W.3d 474, 478 (Mo.

banc 2018); Spence v. BNSF Ry. Co., 547 S.W.3d 769, 779 n.12 (Mo. banc 2018).

       Whether Hayes was an employee of Ginger C for purposes of recovery under the

Workers' Compensation Law is a question of law. Chouteau v. Netco Constr., 132 S.W.3d

328, 332 (Mo. App. W.D. 2004). Section 287.020.1 defines "employee" as "every person

in the service of any employer, as defined in this chapter, under any contract of hire, express

                                              10
or implied, oral or written, or under any appointment or election, including executive

officers of corporations." To establish an employer-employee relationship, a claimant must

demonstrate that "he worked in the service of the alleged employer and the employer

controlled the services."   Chouteau, 132 S.W.3d at 332.        "'The pivotal question in

determining the existence of an employer-employee relationship is whether the [alleged]

employer had the right to control the means and manner of the service, as distinguished

from controlling the ultimate results of the service.'" Id. (quoting DiMaggio v. Johnston

Audio/D & M Sound, 19 S.W.3d 185, 188 (Mo. App. W.D. 2000)).

      The term "independent contractor" is not defined in Chapter 287, but in the context

of workers' compensation claims has been held to be "one who, exercising an independent

employment, contracts to do a piece of work according to his own methods, without being

subject to the control of his employer, except as to the final result of his work." Id. Key

to the determination of whether a workers' compensation claimant is an employee or an

independent contractor is the amount of control exercised by the alleged employer. Id.

      In determining if the employer had control over the employee, courts have
      examined a number of factors, including: 1) the extent of control; 2) the
      actual exercise of control; 3) the duration of employment; 4) the right to
      discharge; 5) the method of payment; 6) the degree to which the alleged
      employer furnishes the equipment; 7) the extent to which the work is the
      regular business of the employer; and 8) the employment contract.

Busby v. D.C. Cycle Ltd., 292 S.W.3d 546, 550 (Mo. App. S.D. 2009). "'No one factor is

dispositive, but each is relevant to the issue.'" Id. (quoting Burgess v. NaCom Cable Co.,

923 S.W.2d 450, 452 (Mo. App. E.D. 1996)).




                                            11
       The Final Award considered the factors outlined in Busby and explained the ALJ's

conclusion that Hayes was not an employee of Ginger C as follows:

       Mr. Asmar and [Hayes] both testified Mr. Asmar was not present at the job
       sites and did not control or direct [Hayes] on how to do his work. Mr. Asmar
       decided what work was to be done, and [Hayes] determined how to do the
       work. [Hayes's] hours worked were up to him. The only checks in evidence
       indicate [Hayes's] hours worked were erratic. Mr. Asmar testified [Hayes]
       was free to turn down maintenance calls and was free to take other jobs while
       performing work for Ginger C. [Hayes] was paid by the job based on the
       amount of labor and materials the job required. Ginger C did not provide
       equipment or tools, and [Hayes] had his own tools. Ginger C's regular
       business is apartment rental, and the company was not hired to build or
       remodel. Ginger C did not provide any health insurance, sick leave or
       vacation benefits. [Hayes] produced no payroll records, W2 forms, or tax
       records to establish employment.

This legal conclusion was supported by several related factual findings, including that: (1)

Asmar testified that everybody working for him in 2013 was an independent contractor and

that he made it clear they did work by the job; (2) Ginger C had no employees in 2013 and

did not issue any W2s; (3) Asmar bought tools for Hayes to keep and took the cost from

Hayes's check; (4) Hayes was reimbursed if he paid for materials himself; (5) Asmar did

not tell Hayes how to do his work, and instead relied on Hayes to tell him what had to be

done to perform requested work; (6) Asmar left the hours worked up to Hayes, whose hours

changed from job to job; (7) Hayes worked sporadically for Ginger C from April 1, 2013,

through July 2013, and typically less than forty hours a week; (8) calls for maintenance

work from tenants went directly through Asmar, and Hayes had the ability to turn down

any request from Asmar to address such calls; (9) Hayes was not available to work for

Ginger C on many occasions because he was working another job in Moberly; (10) Asmar

paid Hayes by check every Friday and Monday (if weekend work was performed) and

                                            12
never withheld taxes; (11) Hayes and Nabhan outbid a separate bidder for the concrete

work on the Hinkson property; (12) Asmar did not tell Hayes how to do the concrete work

on the Hinkson property and was not there when the work was performed; and (13) Asmar

and Nabhan were credible witnesses while Hayes was not.

      Hayes disputes the legal conclusion that he was not an employee. In doing so, Hayes

dispels many of the aforesaid unfavorable factual findings as "simply conclusory," and

highlights evidence Ginger C and/or Asmar failed to submit that could have lent support

to Ginger C's contention that Hayes was an independent contractor. These arguments

ignore our standard of review. "The court, on appeal, shall review only questions of law,"

and in the absence of fraud (which is not alleged here) "the findings of fact made by the

[C]ommission . . . shall be conclusive and binding." Section 287.495.1. We have no

authority to second guess the Commission's factual findings.

      Hayes's arguments also ignore that he bore the burden to prove he was an employee

of Ginger C. Though Ginger C did not have the burden to prove that Hayes was an

independent contractor and not an employee, the Final Award found Asmar's testimony to

be credible--a finding by which we are bound. McDowell, 572 S.W.3d at 131.

      Hayes also emphasizes evidence he claims should have been relied upon by the

Commission to reach a different conclusion about his status after applying the Busby

factors. Hayes notes that: (1) that there was no clear agreement between Ginger C and

Hayes about the work to be performed on the Hinkson property as there was no formal bid

and no specific price for the work to be performed; (2) Hayes was arguably an at-will

employee who worked for an hourly wage; (3) Asmar made statements to Hayes's parole

                                           13
officer that led her to believe Hayes was an employee of Ginger C; (4) Asmar maintained

a rental account for workers to use to obtain necessary equipment and materials; and (5)

Asmar had ultimate authority and control over Hayes's work because Asmar identified the

work that needed to be performed and the men he wanted to perform the work. This

"contrary evidence" is not relevant, however, to the "pivotal question" in determining

whether Hayes was an employee: Did Ginger C have the right to control the means and

manner of Hayes's work or did Ginger C simply have the right to control the ultimate result

of Hayes's work? See Chouteau, 132 S.W.3d at 332.

       The Final Award concluded that that Ginger C did not exercise the requisite amount

of control over Hayes's work so as to render Hayes an employee of Ginger C. The record

as a whole supports this conclusion. Hayes's own testimony established that Asmar did

not provide him direction beyond telling Hayes what he wanted the final result to be

because Asmar had no experience in construction. Hayes testified: "Basically [Asmar

would] say, 'This needs to be done, this needs to be done, this needs to be done.' But as far

as figuring out which way to do it, that's on me or on whoever." Hayes also testified that

the hours he worked were up to him, not Asmar. Hayes testified that he provided his own

tools that he had accumulated in forty years of working in the construction industry when

working for Ginger C, and to the extent that he did not have a tool needed, Ginger C would

purchase the tool and take the cost out of Asmar's pay. Asmar's testimony established that

Asmar's hours for Ginger C were erratic, and established that Hayes was free to turn down

maintenance calls and to work on other jobs.



                                             14
         Based on the record as a whole, we cannot conclude that the facts found by the

Commission (as to which we defer) fail to support the Final Award. Specifically, we

cannot conclude that the facts found by the Commission, viewed in light of the record as a

whole, fail to support the legal conclusion that Hayes was not an employee of Ginger C as

contemplated by section 287.020.1.

         Because there was sufficient competent evidence in the record to support the

conclusion that Hayes was an independent contractor and not an employee of Ginger C for

purposes of recovery under the Workers' Compensation Law, we need not address Hayes's

multifarious claims of error regarding Ginger C's status as either an employer with five or

more employees, or a construction industry employer with one or more employees.

         Point One is denied.

Point Two: Statutory Employment

         Hayes's second point on appeal argues that the Commission erred in denying his

claim for workers' compensation benefits because the overwhelming weight of the

evidence proved that at the time of his accident, he had a statutory employment relationship

with Ginger C. This argument implicates section 287.040.1,6 which provides that:

         Any 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,
         his subcontractors, and their employees, when injured or killed on or about
         the premises of the employer while doing work which is in the usual course
         of his business.




         6
         We remind that all statutory references are to the version of Chapter 287 in force and effect as of the date
of Hayes's injury on June 26, 2013.

                                                         15
The statute is designed "to prevent employers from circumventing the requirements of the

[Workers' Compensation Law] by hiring independent contractors to perform work the

employer would otherwise perform." Bass v. Nat'l Super Markets, Inc., 911 S.W.2d 617,

619 (Mo. banc 1995). The statute "allows an injured employee to recover workers'

compensation from the company if injured, just as if the work had not been farmed out to

an independent contractor." McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473,

480 (Mo. banc 2009).

       Hayes's second point on appeal is in the alternative to his first, as the premise of the

second point on appeal is that Hayes was not an employee but was instead an independent

contractor who should nonetheless receive the benefit of protection under the Workers'

Compensation Law. Hayes never asked the ALJ to decide this issue, however. None of

Hayes's evidence or argument sought an alternative determination that Ginger C was a

statutory employer should the ALJ conclude that Hayes was not an employee but was

instead an independent contractor.

       We recognize, however, that Hayes's application for review permitted the

Commission to "review the evidence, or, if considered advisable, as soon as practicable

hear the parties at issue, their representatives and witnesses" and to "make an award . . . as

specified in section 287.470." Section 287.480.1. And section 287.470 authorized the

Commission to "review any award and on such review . . . make an award ending,

diminishing or increasing the compensation previously awarded." In other words, the

Commission had the authority to consider the issue of Ginger C's status as a statutory

employer assuming it was asked to do so. See Long v. City of Hannibal, 670 S.W.2d 567,

                                              16
569-70 (Mo. App. E.D. 1984) (holding that because an ALJ decision is not final, the

Commission can reach issues not addressed by the ALJ assuming they are raised with the

Commission). Hayes's application for review included the bare assertion that "[t]he ALJ

erred in not finding and adjudicating the question of statutory employment," though Hayes

afforded the Commission no further argument, evidence, or analysis on the issue of Ginger

C's statutory employment status. His bare assertion, generously read, raised the issue of

statutory employment with the Commission. We therefore have the authority to review

Hayes's claim of error on appeal. See Archer v. City of Cameron, 460 S.W.3d 370, 377

(Mo. App. W.D. 2015) ("'An issue appropriate for, but not addressed with the [C]omission,

cannot be litigated on appeal.'" (quoting St. John's Mercy Health Sys. v. Div. of Emp't Sec.,

273 S.W.3d 510, 516 (Mo. banc 2009))).

       The Commission affirmed the ALJ Award, and thus effectively rejected Hayes's

contention that the ALJ erred in not finding and adjudicating the question of statutory

employment. The dissenting commissioner felt Hayes should be entitled to recovery based

on a statutory employment relationship with Ginger C.

       To successfully establish a statutory employment relationship, Hayes, as the

claimant, had the burden to prove that (1) his work was performed pursuant to a contract,

(2) his injury occurred on or about the premises of Ginger C, the alleged statutory

employer, and (3) the work was done in the usual course of Ginger C's business. See

McCracken, 298 S.W.3d at 480. During the hearing before the ALJ, Hayes steadfastly

argued that he had no contract, written or oral, with Ginger C to perform work because he

was an employee. Hayes offered no affirmative evidence to sustain his burden on the first

                                             17
element of a statutory employment relationship. However, the ALJ Award found that

Asmar's credible testimony established that Hayes and Nabhan submitted a bid for the

concrete work at the Hinkson property which Asmar accepted on Ginger C's behalf. The

ALJ Award thus supports the presence of an oral agreement between Ginger C and Hayes

to perform the concrete work on the Hinkson property, the first element of a statutory

employment relationship.

       The parties stipulated that Hayes was injured while performing work for Ginger C.

The ALJ Award found that Hayes's injury occurred while Hayes was performing the

concrete work on the Hinkson property. The ALJ Award establishes the second element

of a statutory employment relationship.

       Thus, the question of whether a statutory employment relationship existed turns on

whether the work Hayes was performing at the time of his injury was in the usual course

of Ginger C's business, the third element. "Whether a particular sort of work is within a

party's usual course of business is a fact-driven inquiry; there is no 'litmus paper' test."

McCracken, 298 S.W.3d at 480 (quoting Ferguson v. Air-Hydraulics Co., 492 S.W.2d 130,

135 (Mo. App. 1973). In Bass, we defined a putative statutory employer's "usual business,"

as the term is used in section 287.040 as:

       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.

911 S.W.2d at 621. The definition of "usual business" is intended "to exclude 'specialized

or episodic work that is essential to the employer but not within the employer's usual

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business as performed by its employees.'" McCracken, 298 S.W.3d at 480 (quoting Bass,

911 S.W.2d at 621).

       Hayes argues that the "usual business" of Ginger C should be viewed broadly to

include all renovation, repair, and maintenance activities performed at Ginger C's rental

properties. Ginger C and the Second Injury Fund argue that the "usual business" of Ginger

C should be viewed more narrowly and thus limited to the activity Hayes was engaged in

at the time of his injury--concrete work.

       By its plain terms, the inquiry required to determine statutory employment status is

tied to the activity that resulted in injury. The first element of statutory employment status

requires a determination that there was a contract to perform the activity that resulted in

injury. The second element of statutory employment status requires a determination that

the activity which caused the injury was being performed on the premises of the putative

statutory employer. It logically follows that the third element of statutory employment

status similarly requires a determination that the activity that resulted in injury was work

done in the usual course of Ginger C's business.

       Here, the activity that resulted in Hayes's injury was concrete work. There was no

evidence that concrete work was routinely performed by Ginger C on its rental properties.

Asmar testified that the concrete work done on the Hinkson property was "not something

we [had] ever done before" and "[n]ot something we ever did afterwards." Hayes presented

no evidence from which the Commission could have concluded that the concrete work

which resulted in Hayes's injury was work that was routinely performed by Ginger C on a

regular or frequent schedule.

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      Nor was there any evidence presented supporting a conclusion that concrete work

of the nature performed at the Hinkson property would have required Ginger C to hire

permanent employees to perform the work absent the agreement with Hayes and Nabhan.

To the contrary, the ALJ found that Ginger C sought and secured a bid from a third party

contractor to perform the concrete work before that bid was undercut by Hayes and

Nabhan. The evidence presented during the hearing before the ALJ supports no other

conclusion than that the concrete work required at the Hinkson property was specialized

and episodic. See McCracken, 298 S.W.3d at 480 (holding that "usual business" excludes

specialized or episodic work).

      Hayes did not sustain his burden to establish a statutory employment relationship

with Ginger C pursuant to section 287.040.1.

      Point Two is denied.

                                      Conclusion

      The Commission's Final Award is affirmed.



                                        __________________________________
                                        Cynthia L. Martin, Judge


All concur




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