Douglas Hayden v. Dave Kolb Grading, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Date of Accident: February 12, 2003

Place and County of Accident: St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 24, 2005. The award and decision of Administrative Law Judge Linda J. Wenman, issued May 24, 2005, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 7^{\text {th }} \qquad$ day of October 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 12, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While transporting workers to and from their worksite, Claimant’s vehicle was struck by a truck.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Cervical spine and left bicep.
14. Nature and extent of any permanent disability: Stipulated as: 10\% BAW referable to cervical spine, and 20\% at 222 week level referable to the left bicep.
15. Compensation paid to-date for temporary disability: By Amerisure Companies: $\ 6,307.68 representing $95 / 7$ ths weeks.
16. Value necessary medical aid paid to date by employer/insurer? By Amerisure Companies: $\ 12,270.19 Employee: Douglas Hayden Injury No.: 03-011409
17. Value necessary medical aid not furnished by employer/insurer? To be determined.
18. Employee's average weekly wages: Sufficient for maximum rates
19. Weekly compensation rate: $\$ 649.32 / \ 340.12
20. Method wages computation: Stipulated

1. Amount of compensation payable:

A hearing was held regarding the above referenced Workers’ Compensation claim by the undersigned Administrative Law Judge on February 1, 2005. The case was formally submitted with receipt of post-hearing briefs on March 9, 2005. Attorney John J. Larsen, Jr., represented Douglas Hayden (Claimant). Dave Kolb Grading, Inc., (Employer) was insured by Amerisure Companies (Amerisure), and represented by Attorney Dennis Lassa. Employer was also covered by an Owner Controlled Insurance Policy (OCIP) while performing work on the St. Louis Mills Project. The OCIP was insured by Twin City Fire Ins. Co., / Hartford Specialty Risk Services (Hartford), and represented by Attorney Richard Fitzgerald.

Prior to the start of the hearing the parties identified the single issue for disposition in this case as a determination of

which insurer, Amerisure or Hartford, is liable for Claimant's work related injury. Both insurers accept Claimant's accident as arising out of and in the course and scope of his employment. No issue is raised concerning medical causation. Further, the parties offered the following stipulations:

1. Claimant was injured while driving Employer's vehicle on a public roadway.
2. To date, Claimant's medical bills and temporary total disability benefit have been paid in full by Amerisure.
3. A medical bill from Ernst Clinic, Inc., is to be paid by the insurer found liable.
4. The liable insurer will pay permanent partial disability as follows: 10 % BAW referable to the cervical spine, and 20 % at the 222 week level referable to Claimant's left biceps.

Amerisure offered Exhibits 1-7, and Hartford offered Exhibit I. All exhibits were admitted into the record without objection. Any objections not expressly ruled on in this award are overruled.

At the start of the hearing, the parties confirmed that no issues regarding benefits remained to be decided. The only remaining issue involves a controversy between two insurers, and requires interpretation of Hartford's OCIP contract. Due to the nature of the remaining issue, a discussion was held regarding the Court's authority to proceed, namely, did this Court have subject matter jurisdiction over the remaining disputed issue.

An administrative adjudicative body is a member of the executive branch of government. Executive adjudicative agencies exercise quasi-judicial powers which are limited to the powers defined in its statutory provisions. Soars v. SoarsLovelace, Inc., 142 S.W.2d 866 (1940). These quasi-judicial powers occasionally extend to determinations of questions which are purely of a legal nature. State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69 (Mo.banc 1982). An adjudicator has the duty "to rule upon every issue presented which pertains to a determination of liability in a workers' compensation claim; liability is not fixed until it is determined who is entitled to what from whom". Highly v. Martin, 784 S.W.2d 612 (Mo.App. 1989) quoting Harris v. Pine Cleaners, Inc., 296 S.W.2d 27 (Mo.banc 1956); see also Mikel v. Pott Industries, 896 S.W.2d 624 (Mo.banc 1995).

The "who" (Claimant), and "what" (benefits) have been stipulated by the parties. What remains to be determined is the "from whom". As liability cannot be determined until the "whom" is decided, based on the authority cited, I find that I have subject matter jurisdiction to proceed to make that determination.

Only testimony necessary to support this award will be reviewed and summarized.

Claimant: Claimant has worked for Employer for approximately ten years. He worked as a grader/foreman during the construction of the St. Louis Mills project. The St. Louis Mills project encompassed a very large jobsite. One of Claimant's job duties was to oversee grader equipment operators, and transport them when necessary.

Approximately six months into the construction, the grading equipment was at the back of the jobsite, and employee cars were to be staged at the front of the jobsite. The distance between the front to the back of the jobsite was approximately one mile. Due to the distance involved, Claimant was instructed to transport the operators to their graders. Claimant drove a construction vehicle, and utilized a public road necessary to access the project site. At the time of injury, no other access point existed to enter the jobsite.

On February 12, 2003, during a transporting trip, Claimant's construction vehicle was traveling on the public road when it was struck by a turning tractor trailer. Claimant suffered injuries to his cervical spine and left biceps.

Upon cross-examination, Claimant confirmed the roadway had been installed before jobsite construction had begun. Claimant also confirmed that the general public had access to road on the date he was injured.

Jeffrey Kolb: Mr. Kolb has served as Employer's vice-president for fifteen years. He is in charge of daily operations for Employer, and was in charge of grading operations for the St. Louis Mills project. Employer was a subcontractor charged with the project grading. Mr. Kolb corroborated Claimant's testimony.

Mr. Kolb testified the OCIP should cover accident and workers' compensation liabilities, and when the project was bid, it did not include Employer's workers' compensation costs. Mr. Kolb testified that use of an OCIP financially benefits project developers, and an OCIP is the primary insurance coverage when an injury occurs. Claimant's date of injury was

under the coverage period of the OCIP. When Claimant was injured, Employer requested Hartford provide Claimant's workers' compensation benefits. Mr. Kolb testified that Hartford denied coverage, and Employer had no choice but to turn to Amerisure to provide Claimant coverage. If Amerisure bears this loss, Employer fears its workers' compensation rates will increase.

Mr. Kolb indicated that the primary use of the road used by Claimant was for construction access. When the road was built, permanent construction benchmarks were placed, and the roadway benchmarks were frequently used by construction personnel, including graders. Mr. Kolb testified that the roadway would have to be covered by the OCIP, as construction workers would have to access the benchmarks located on the road. When shown a copy of alleged OCIP boundaries for the St. Louis Mills project (Exhibit I), Mr. Kolb questioned the survey boundaries, and testified it was not reflective of the boundary description contained in the OCIP contract. Mr. Kolb also testified that the boundaries contained in Exhibit I had not been shown to him until one hour before his testimony.

Upon cross-examination, Mr. Kolb conceded the injury road was accessible to the general public, and contained other tenants. However, Mr. Kolb indicated that the road was constructed by another developer at the request of the St. Louis Mills developer.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

The policy in question indicates that it will cover "all workplaces in connection with or necessary