Farin Deck v. Modern Paving Systems

Employee: Farin L. Deck

Injury No. 04-119522

Dependents: N/A

Employer: Modern Paving Systems

Insurer: State Farm Fire \& Casualty

Additional Party: Missouri State Treasurer, Custodian of Second Injury Fund

Hearing Date: July 27, 2005

Checked by: ESF/lh

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: April 7, 2004.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
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: Employee while in the course and scope of his employment he was involved in an automobile accident.
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: Body as a whole
14. Nature and extent of any permanent disability: Not determined at this time.
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -
17. Value necessary medical aid not furnished by employer/insurer? Unknown.
18. Employee's average weekly wages: $\ 900.00.
19. Weekly compensation rate: $\$ 600.03 / \ 347.05.

1. Method wages computation: By Agreement.

1. Amount of compensation payable: Employee did not request any particular monetary compensation at this time, only that this court determine whether this claim was compensable.
2. Second Injury Fund liability: N/A

23.Future requirements awarded: Not determined at this time.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all benefits paid herein to his attorney, William Spray.

Employee: Farin Deck Injury No: 04-119522

Dependents: N/A

Employer: Modern Paving Systems

Insurer:State Farm Fire \& Casualty

Additional Party: N/A

Hearing Date: July 27, 2005

Checked by: ESF/lh

The employee and employer appeared for a temporary hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee Farin Deck appeared in person and by his attorney William Spray. The employer and insurer appeared in person and through his attorney Denise Tomasic.

The parties stipulated to the following:

1) that on or about April 7, 2004, Modern Paving Systems was an employer operating subject to the Missouri Workers' Compensation law and its liability was fully insured by State Farm Fire \& Casualty Insurance Company;

2) that Farin Deck was its employee;

3) that Farin Deck was working in Kansas City, Jackson County, Missouri;

4) that Employee's claim was filed within the time allowed by law;

5) that Employee's average weekly wage was approximately $\ 900, resulting in a compensation rate of $\ 600.03 for temporary total disability and $\ 347.05 for permanent partial disability compensation;

6) that employer has paid no temporary total disability compensation benefits or any medical care costs.

The issues the parties requested this Court to determine were

1) whether Employee sustained an accident or occupational disease arising out of and in the course of his employment;

2) whether the Employee notified the employer of the injuries required by law.

The Employee's evidence consisted of the testimony of the Employee Farin Deck.

The employer and insurer's evidence consisted of the testimony of the owner John Cook and the following exhibits, which were all allowed into evidence without objection.

No. 1 - Discovery Deposition of Farin Deck dated March 2, 2004

No. 2 - Six paged attendance sheet

No. 3 - Wage Statement from 7/23/04 to 10/19/04

No. 4 - Missouri Uniform Accident Report

After reviewing all the evidence and testimony, the Court makes the following findings:

Employee Farin Deck, hereinafter referred to as Employee, worked for Modern Paving Systems as a lead man beginning in approximately March of 2004. As part of his agreement with his employer, he was given a company truck to drive to and from work, as well as to jobsites as needed. Employee testified that he was told by his employers that he should pick up certain employees who needed a ride to work, specifically Bill Hull and Mike Boerst. He states that he was told by his supervisor to pick up crewmembers and that this happened more than once. He stated he would pick up these crewmembers and then drive to the yard to begin the workday. He states there were times when he drove to the yard first and was told to turn around and go pick up crewmembers that needed a ride. He would then travel to the jobsite in company trucks.

On April 7, 2004, Employee stated that he went to the yard after picking up two employees and bringing them with him. When they got to the yard, it was determined that not all of the people could fit in the truck that they were going to use to go to the jobsite; therefore, they used Employee's truck to fit everybody in. The employees he had given a ride to were Bill Hull and Mike Boerst. When the job was finished that day they left the work site in the company truck. Employee states that he was taking these gentlemen home and was approximately two blocks from the

job site. He was traveling to the intersection of $11^{\text {th }}$ and Harrison and as he traveled through the intersection he was struck by another vehicle broadside on the driver side. Employee refused medical treatment at the scene and did not go to the emergency room that day or night. He eventually went to the emergency room approximately one week later. He went after work and the next day he told his employer that he had gone to the emergency room because his hand was hurting him. He believed he might have knocked out a window with his hand when he was hit by the other vehicle. Employee stated that he told his employer that the emergency room visit was related to his accident. He worked for about a week after the accident and started missing work because he was having problems doing his job due to physical problems from the accident. After about two weeks he started missing one or two days a week and then after three weeks he was missing two and then three days at a time. He stated he told both John and Brian his supervisor and boss that his back was hurting him and he could no longer work.

Employee stated that he was not the only person to have a company vehicle; that his supervisor did as well, and that at times his supervisors would pick up employees and take them to work.

On cross-examination, Employee admitted that the job they went to that day was an asphalt job and was finished approximately at 4:00. He left his jobsite at 4:00 and he was headed home with no intention of returning to the company yard. He admitted the accident happened approximately 4:30 in the afternoon. He stated that he was given expenses for fuel money, but that he was also paid the same with regard to salary whether he went back to the yard or went straight home after a job. He admitted that he went to the emergency room a week later on his own and that he further followed up with chiropractor treatment on his own. He believed he worked for approximately two, maybe three months after the injury but was not exactly sure how long; although, he felt he worked only until approximately May or June of 2004. He reiterated that he notified both John and Brian, his supervisor and boss, that he was hurt in the accident and that his back was messed up. He stated that although he continued to work for a few months, that he did a lot less than what he used to do and was not pulling his regular hours. He denied that there had been any safety meetings other than one prior to the accident itself. He admitted that he never asked his employer to send him to a doctor and never asked his employer to assist him with any paperwork for workers' compensation.

On redirect, he stated that he was going to be dropping off the other employees on the way home when the accident occurred. He stated that he was given money to fuel the truck when he had to go pick up people. He explained that although the truck was not necessary for the particular job as the job was an asphalt job and he was driving a concrete truck, that the truck was actually needed to get to the jobsite. He further stated that when he missed two or three days a week his employer stopped paying him a salary and put him on an hourly basis.

The employer John Cook testified that he hired Employee in approximately March of 2004; that when he hired him Employee had a van but it probably would not be reliable to get him back and forth to work and therefore he gave him a vehicle to drive. The vehicle he was driving during the accident was a 1997 Chevrolet three-quarter ton pick-up truck. He stated he does not provide trucks to all of his employees but Employee was a lead man, which was basically an assistant to the foreman. He never had any conversation about asking Employee to pick up other employees to drive them to work. In fact, he stated that he specifically told him to stop taking people to work because it was making him late, but more importantly if a job was done early in the day, he would have to drive these employees back to their homes, therefore making Employee leave early when he was needed on the jobsites after the general workers were done. Mr. Cook believed that the employees Employee brought to the jobsites actually went to Employee's house first and Employee would simply drive them from his house to the jobsites and back to his house again and then they would go on home from there. Mr. Cook explained that Employee was expecte