Hector Torres-Olivares v. Schlup Investments, Inc. / Michael Schlup / Plaza Gardens on the Lake

Employee: Hector Torres-Olivares

Injury No. 05-056769

Dependents: N/A

Employers: Schlup Investments, Inc.

Michael Schlup

Plaza Gardens on the Lake

Insurer: Continental Western Insurance Company

Additional Party: N/A

Hearing Date: February 17, 2006

Briefs Due:

Checked by: PAM/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: March 23, 2005.
5. State location where accident occurred or occupational disease was contracted: Camden County, Missouri; venue Kansas City by agreement.
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: Hector Torres fell while in the course and scope of his employment.
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.
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? Not determined.

1. Employee's average weekly wages: Not determined.
2. Weekly compensation rate: $\ 373.35.
3. Method wages computation: By agreement.

1. Amount of compensation payable:

47 weeks of past temporary total disability or $\ 17,547.45 through February 16, 2005

with ongoing weekly benefits of $\ 373.35 per week

Cost of proceedings under $\S 287.560 against Schlup Investments only to Joe Ebbert and

Michael Belancio \ 14,712.50

1. Second Injury Fund liability: N/A

TOTAL:

1. Future requirements awarded: Future medical treatment as necessary consistent with

Dr. Koprivica's recommendations.

Said payments to begin as of the date of this award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Joe Ebbert and Michael Belancio (See Findings and Rulings regarding payment by Schlup Investments).

Employee: Hector Torres-Olivares

Injury No: 05-056769

Dependents: N/A

Employers: Schlup Investments, Inc.

Michael Schlup

Plaza Gardens on the Lake

Insurer: Continental Western Insurance Company

Additional Party: N/A

Hearing Date: February 17, 2006

On February 17, 2006, the parties appeared for hearing the Employee. Hector Torres appears in person and with counsel Joe Ebbert and Michael Belancio. The Employer Michael Schlup, Schlup Investments, Inc., and Plaza Gardens on the Lake appears and is represented by Theresa Otto and Clayton Fielder. Steven Quinn also appears for the Employer Schlup Investments, Inc., only. Continental Western appears through its counsel Eric Lanham. Angela Williams appears for Claimant Apolinar Sandoval.

At the hearing the parties stipulated to the following:

1) that Hector Torres sustained an accident arising out of and in the course of his employment on March 25, 2005;

2) that Hector Torres is entitled to past temporary total disability of $\ 17,547.45 for 47 weeks through February 16, 2006, with ongoing benefits at a compensation rate of $\ 373.35 per week;

3) that Hector Torres is in need of medical treatment consistent with Dr. Koprivica's report.

The parties requested the Division to determine:

1) whether Hector Torres was employed by Michael Schlup, Schlup Investments, Inc., or Plaza Gardens on the Lake;

2) whether Continental Western has workers' compensation liability under its policy with Schlup Investments, Inc.,

3) whether Hector Torres is entitled to costs of recovery under $\S 287.560$.

Hector Torres was severely injured while installing arches on terraces at the Plaza Gardens on the Lake construction project. Torres was standing with a co-worker Apolinar Sandoval on a make-shift platform when Sandoval lost his balance. Sandoval fell pulling Torres with him. Torres and Sandoval fell approximately 4 stories down to the ground. Torres lost consciousness. Sandoval died at the scene.

Torres is currently temporarily and totally disabled. Torres has incurred significant past medical expenses and is in current need of medical treatment.

The circumstances surrounding Torres' hiring and employment status are in dispute.

Torres learned of the job from a radio advertisement. Torres called the phone number which was listed in the advertisement and he was "pretty certain" that the number had a 913 area code and was a Kansas phone number. Torres was asked some basic questions about his experience over the telephone and then was told that if he was interested in the position, a meeting could be arranged. Torres testified a meeting was held at a gas station in Overland Park, Kansas. Torres said he met with "Miguel" and Miguel's son. Torres said he was offered the job at this meeting in Overland Park, Kansas and was given a map to the job site.

Torres drove down to the Lake of the Ozarks and started working on a Monday in January 2005. Torres received work instructions from the supervisors at the job site. Torres never received any directions or work instructions from Mike Schlup. Torres testified that he was paid cash for the work he performed until the date of his injury. The only check that Mr. Torres received was on April 1, 2005. This check was payment for work that Mr. Torres performed in the week immediately preceding his accident. The check was in the amount of $\ 760.00 and was

from Schlup Investments, Inc.

Torres received no employment contract, W-2, pay stub, time sheet, or any other indicia of employment. Torres was unclear what entity he worked for.

Mike Schlup testified that any construction workers who were hired to work at the Plaza Gardens on the Lake project were employees of Schlup Investments, Inc. Schlup testified that Plaza Gardens on the Lake is a development company. He testified that Plaza Gardens on the Lake does not employ any construction workers. Schlup Investments, Inc., is the general contractor for the construction aspect of the Plaza Gardens on the Lake and is responsible for employing the construction workers necessary to do the actual building and construction work.

Hernon Simonetti, an employee of Schlup Investments, Inc., hired individuals to work for the company. Simonetti testified that one of the duties that he performed as an employee of Schlup Investments, Inc., was to answer telephone calls in response to the radio advertisement seeking construction workers. Simonetti testified that the radio advertisement specifically stated that construction workers were needed for Schlup Investments, Inc. Torres testified that he was hired after responding to a similar, if not identical radio advertisement. Simonetti does not specifically remember meeting Torres but does recall meeting with some applicants at gas stations in Overland Park, Kansas.

Elbert Pardon, Schlup Investments, Inc., and Plaza Gardens on the Lake employee, testified that he would manage and pay the workers hired to perform services for the Lake project. Pardon would take "roll call," assign tasks, supervise and pay the workers in cash. All records developed as a result of the "roll call" have been destroyed.

The insurer Continental Western takes the position that Torres was not an employee of Schlup Investments, Inc.,

There is no dispute as to the lack of formalities of alleged employment with Schlup Investments, Inc. There were no applications for employment. There are no employment files. There are no W-2 forms. A social security card was not required. A Green Card was not required. An address was not obtained. Telephone numbers were not obtained. Dependent information was not obtained. Federal income taxes were not withheld from pay. Social security was not withheld. Medicare was not withheld from pay. Time cards were not maintained. "Roll call" sheets have been destroyed. No payroll account reflects payments because "employees" were paid in cash. No documentary evidence of any kind prior to the accident or in the week or two after the accident exists which indicate the employees worked for Schlup Investments, Inc.

Missouri law does not require an express contract, either written or verbal, to establish the employee-employer relationship. See Kelsall v. Riss \& Co., 165 S.W.2d 329 (Mo. App. 1942). The employment may be implied or presumed from the acts of the parties. Id. In order to determine whether or not an employment relationship exists, Missouri courts apply a two-factor test known as the "controllable services test." See Lynn v. Lloyd A. Lynn, Inc., 493 S.W.2d 363 (Mo.App. 1973). The first factor is that the worker must be "in the service" of the alleged employer. Id. Secondly, the services must be controlled by the alleged employer. Id, see also Howard v. Winebrenner, 499 S.W.2d 389 (Mo. 1973). "Service" has been defined as the performance of labor for the benefit of another. Id.

In this case, Mr. Torres was "in the service" of Schlup Investments, Inc., i.e., he was performing labor for the benefit of Schlup Investments, Inc. Mr. Torres' services were also being controlled by Schlup Investments, Inc.

Despite Schlup's inconsistent testimony surround the employment arrangement, I find based on the testimony of Torres, Pardon, Simonetti, Schlup and applicable Missouri law that Torres was an employee of Schlup Investments, Inc.

Since I have found Torres to be an employee of Sch