"Indeed, our appellate courts have cautioned the Commission to exercise this discretionary statutory power ‘with great caution and only when the case for costs is clear and the offense egregious.’ " Nolan, 276 S.W.3d at 335 (emphasis added) (quoting Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, 120 (Mo. App. W.D. 2004) : see Sickmiller, 407 S.W.3d at 119 (quoting Wilson, 140 S.W.3d at 120 ); Monroe v. Wal-Mart Assocs., Inc., 163 S.W.3d 501, 506 (Mo. App. E.D. 2005). Because the Commission's statutory power to award costs is purely discretionary, the decision to decline an award of fees is not reviewed for whether the decision is supported by substantial evidence, but whether the Commission abused its discretion when rendering the decision.
Only a party who brings, prosecutes, or defends a case "without reasonable grounds" may have costs assessed against it. Id.; Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, 120 (Mo.App. 2004); § 287.560. Even then, the Commission "may" assess such costs, but neither the statutory language nor case law compels such an award.
Id.; see also McAlister v. Strohmeyer, 395 S.W.3d 546, 552 (Mo. App. W.D. 2013) (noting "[u]se of the word 'may' in a statute implies alternate possibilities and that the conferee of the power has discretion in the exercise of the power"). "Indeed, our appellate courts have cautioned the Commission to exercise this discretionary statutory power 'with great caution and only when the case for costs is clear and the offense egregious.'" Donnell, 667 S.W.3d at 143 (emphasis omitted) (quoting Wilson v. C.C.S., Inc., 140 S.W.3d 115, 120 (Mo. App. W.D. 2004)).
“The [C]ommission should exercise this power, however, with great caution and only when the case for costs is clear and the offense egregious.” Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, 120 (Mo.App. W.D.2004). “[O]ur proper review is for abuse of discretion, which generally means a decision so clearly against the logic of the circumstances, and so unreasonable and arbitrary, that it shocks one's sense of justice and indicates a lack of careful deliberate consideration.”
As Claimant's fully insured immediate employer, TII was primarily liable to pay Claimant's worker's compensation benefits. See id. at 844-45; Bunner, 121 S.W.2d at 155-57; Augur, 154 S.W.3d at 517 n. 6; Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, 119 (Mo.App. 2004); Chouteau, 132 S.W.3d at 335-37; Sexton v. Jenkins Associates, Inc., 41 S.W.3d 1, 6 (Mo.App. 2000); New Amsterdam Cas. Co. v. Boaz-Kiel Constr. Co., 115 F.2d 950, 952 (8th Cir. 1940). Accordingly, the Commission did not err in denying TII's request for indemnity from Auction.
A direct contractual relationship between the injured employee and a statutory employer is not required by Section 287.040.1. See Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, 118 (Mo.App. W.D. 2004) (there was no direct contractual relationship between a statutory employee/truck driver and the statutory employer which leased the truck, along with the driver, from the owner). The fact that statutory employment may exist in the absence of a direct contractual relationship between the injured employee and a statutory employer is also clear by the provisions of Section 287.040.4, which provides, in pertinent part: