David Ullum v. George Carden Circus International, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-146629

Employee: David Ullum

Employer: George Carden Circus International, Inc. (Alleged)

Insurer: St. Paul Travelers

Date of Accident: Alleged May 30, 2003

Place and County of Accident: Alleged Hickory County

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 February 14, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued February 14, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of July 2006.

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? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: Alleged to be May 30, 2003.
5. State location where accident occurred or occupational disease was contracted: Alleged to be Hickory County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Not as a covered employee.
7. Did employer receive proper notice? N/A.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
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 was injured while engaged in the exempt occupation of farm labor. 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: N/A. 14. Nature and extent of any permanent disability: N/A. 15. Compensation paid to-date for temporary disability: None. 16. Value necessary medical aid paid to date by employer/insurer? None. 17. Value necessary medical aid not furnished by employer/insurer? N/A. 18. Employee's average weekly wages: Not ascertained. 19. Weekly compensation rate: Not ascertained. 20. Method wages computation: N/A.

1. Amount of compensation payable: None.

Employee: David Ullum

Injury No: 03-146629

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: N/A

Employer: George Carden Circus, International, Inc. (alleged)

Additional Party: N/A

Insurer: St. Paul Travelers

Checked by: RJD/tmh

The evidentiary hearing in these cases (Injury No. 03-146629 and Injury No. 04-144518) was held on November 28, 2005, in Camdenton. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on January 20, 2006. The hearing was held to determine the following:

1. Whether Claimant sustained an accident on May 30, 2003, with alleged employer George Carden Circus International, Inc.;
2. Whether Claimant sustained an occupational disease on or about May 20, 2004, with alleged employer George Carden Circus International, Inc.;
3. Whether the notice requirement of Section 287.420 serves as a bar to compensation in either case;
4. Claimant's average weekly wage and resultant compensation rates;
5. Whether Employer and Insurer shall be ordered to provide Claimant with medical care pursuant to Section 287.140, RSMo in either or both cases;
6. Claimant's entitlement to temporary total disability ("TTD") benefits in either or both cases;
7. Whether either or both of Claimant's alleged injuries are the result of an employment (i.e., "farm labor") exempt from Chapter 287, RSMo, as set forth in Section 287.090, RSMo; and
8. If Claimant was engaged in exempt employment at the time of either or both injuries, whether George Carden Circus International, Inc., elected coverage for Claimant under Chapter 287, RSMo.

The parties stipulated as follows:

1. That venue for the evidentiary hearing is proper in Hickory and adjoining counties, including Camden County;
2. That, for both cases, the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo; and
3. That St. Paul Travelers fully insured the Missouri Workers' Compensation liability, if any, of George Carden Circus International, Inc., at all relevant times.

The evidence consisted of the testimony of Claimant, David Ullum; the testimony of Loretta Clay, Employer's office manager; payroll records; W-2 forms; photocopies of checks; medical records and medical bills, and Claimant's journals for the years 2003 and 2004.

I find that Claimant, David Ullum, was born on December 8, 1956, and has a $12^{\text {th }}$ grade education. I find that in approximately 1990, Claimant began working for George Carden and Carden's uncle. Carden asked Claimant to work on a farm or ranch that Carden and his uncle had purchased. For the first year or so, Claimant was paid by George Carden in cash. Beginning sometime in 1991, Claimant was paid, by check, by "George Carden Circus International". For the years 1992 and 1994, Claimant received a Form W-2 from "George Carden Circus International" showing wages of $\ 7,500.00. For the year 1995, Claimant received a Form W-2 from "George Carden Circus International" showing wages of $\ 5,250.00.

For the years 1996-1999, Claimant received Forms W-2 from "George Carden Circus International, Inc.", showing annual earnings, respectively, of $\$ 8,425.00, \$ 9,275.00, \ 9,650.00 and $\ 11,000.00. For the year 2000, Claimant received a Form W-2 from "George Carden Circus International" showing wages of $\ 11,600.00. For the year 2001, Claimant received a Form W-2 from "George Carden Circus International" showing wages of $\ 11,700.00. For the year 2003, Claimant received a Form W-2 from "George Carden Circus International" showing wages of $\ 12,300.00.

For the year 2003, Claimant received a Form W-2 from "George Carden Circus International" showing wages of \$5,775.00; these wages were paid from January 3, 2003, through June 13, 2003. On June 13, 2003, Claimant received a personal check from "George Carden" for $\ 150.00. Beginning September 12, 2003, and ending December 12, 2003, Claimant received 11 checks from "GC Ranch", totaling \$3,303.77. These checks were all signed by "Loretta Clay". Ms. Clay testified on behalf of the alleged employer and its insurer, St. Paul/Travelers; Ms. Clay testified that she was "office manager of the circus" for more than 20 years and that she also "pays the farm bills". It is unclear from the evidence if Claimant received any pay between June 13, 2003, and September 12, 2003, and if so, from what source.

In 2004, Claimant received 16 checks from "GC Ranch", also signed by Loretta Clay. These checks total \$3,779.92.

Claimant last worked on May 20, 2004.

Loretta Clay testified that (at least until mid-2003), Claimant was paid for the first 25 hours of each week by "the circus", and the remaining hours each week were paid by a ranch check or by a personal check from George Carden. For 2002 and early 2003, Clay's testimony in this regard is corroborated by photocopies of checks in evidence. In 2002, there is one check from "George Carden" for $\ 1,184.53, with the memo: "bills and cash". Also in 2002, there are 22 checks to Claimant from "GC Ranch", all signed by George Carden, totaling $\ 7,280.82. A portion of that amount was reimbursement for out-of-pocket expenses. For the first six months of 2003, there are three checks to Claimant from "GC Ranch", all signed by George Carden, totaling \$1,388.30.

There were no W-2 Forms in evidence from "GC Ranch" or from "George Carden".

Most of Claimant's work, over the years was done at the "ranch". According to Claimant's testimony, his work on the ranch was "cutting wood, building fence, taking care of the buffalo". According to Claimant's 2003 journal, his work included taking care of barn stock, taking care of pen stock, feeding hay bales and food cubes to cows, pushing and piling brush, checking on calves, finding and retrieving cattle that had gotten loose, feeding bulls, horses and buffalo, setting fence posts, and cleaning fence rows.

A portion of Claimant's work was done at the "circus winter quarters" near Springfield, where the circus kept its equipment and elephants during the winter months. Claimant estimated that he spent " 100 days in 13 years" working at the circus winter quarters, or an average of eight days per year.

On May 30, 2003, Claimant sustained an accident on the ranch when his left hand was caught in a John Deere "round" baler (i.e., this machine made the large round bales as opposed to the smaller "square" bales). He sustained multiple lacerations of the hand, including a severe laceration of the palm with partial degloving. Claimant's foreman, Mike McCroskey was made aware of the injury immediately. George Carden also was made aware of Claimant's injury and told Claimant that he (Carden) would take care of Claimant's medical treatment "just like work comp would do". According to Claimant's testimony, Carden also told Claimant: "Work comp won't cover it, because they know the elephants don't use big bales."

Shortly after this injury, Claimant's method of compensation was changed as detailed above. Claimant testified that he only worked part-time after the left hand injury.

Claimant testified that he began having problems with his right hand when the weather got cold in late 2003. Claimant testified that he told Mike McCroskey about his right hand problem on November 18, 2003. Claimant's journal (as well as the pay records) indicates that Claimant's work hours diminished in 2004. Claimant's journal for 2004 also indicates that he was no longer working with the cattle in 2004, which was a substantial part of his job prior to May 30, 2003. Claimant's last day of work was May 20, 2004.

On May 31, 2005, Claimant filed a claim for compensation in Injury No. 03-146629 against "George Carden Circus International, Inc." regarding the May 30, 2003, left hand injury. Also on May 31, 2005, Claimant filed a claim for compensation in Injury No. 04-144518 against "George Carden Circus International, Inc." for "right fingers, hand, wrist, arm" alleging that he "developed carpal tunnel syndrome culminating on or about 5/20/04 when he was replacing old fence posts".

On June 29, 2005, Answers were filed in each case by attorneys Katharine Collins and Christina Madrigal on behalf of "George Carden Circus" and "St. Paul Travelers". The body of each Answer is identical and reads as follows:

Employer and Insurer admit that on the date of the alleged accident or work-related injury, the Employer was operating under the terms of the Missouri Workers' Compensation Act and that all liability thereunder was fully insured by Insurer.

Employer and Insurer deny that Employee sustained an accident or work-related injury ar