Eric Betzold v. The Renaissance Guild, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-020192

Employee: Eric Betzold

Employer: The Renaissance Guild, LLC

Insurer: Uninsured

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund (Open)

Date of Accident: February 14, 2006

Place and County of Accident: St. Louis, 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 September 22, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzetto Carlisle, issued September 22, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 25th day of July 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSERVING OPINION FILED

John J. Halsey, Member

Ablest

Secretary

DISSERVING OPINION

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The parties stipulated that several issues needed to be decided by the administrative law judge including accident, arising out of: medical causation, past medical, future medical, and temporary bad disability. The administrative law judge found employee sustained an injury by accident but their spent most of her award discussing whether employee's injuries arose out of and in the course of

his employment. In reaching her conclusion that employee's injuries did not arise out of and in the course of employment, the administrative law judge relied upon definitions and constructions of the phrases "arising out of" and "in the course of employment" as decided by Missouri courts before. August 28, 2005. The administrative law judge's reliance is contrary to law.

2005: Amendments to the Workers' Compensation Act

Section 287.000.1 RSMo (2005) provides that "[i]ntrenstrature law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly." Strict construction mandates that a court give a statutory provision no broader application than is

warranted by its plan and ordinary meaning. State en rel: Drasper Industries, Inc. v. Ruddy, 592 S.W.2d 785, 794 (Mo. 1985).

Section 287.032.10 RSMo (2005) provides that "[i]n applying the provisions of this chapter, it is the intent of the legislature to reject and alongside earlier case law interpretations on the meaning of or definition of 'accident', 'occupational disease', 'arising out of', and 'in the course of the employment' to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation,

80 S.W.2d 524 (Mo App. W.D. 2002); Azar v. Broad Care, Inc., 884 S.W.2d 852 (Mo. banc 1999); and Drewes v. 7344, 964 S.W.2d 512 (Mo. banc 1999) and all cases citing, interpreting, applying, or following those cases."

"The language in section 287.020.10... serves as clarification of the fact that any construction of the previous definitions by the courts was rejected by the amended definitions contained in section 287.020...[3] appears from the plain language of the statute, the legislature ... intended to clarify its intent to amend the definitions and apply those definitions prospectively." Lawson v. Ford Motor Co.,

217 S.W.3d 345, 349 (Mo App. 2007). The administrative law judge erred by relying on abrogated interpretations of the phrase "arising out of" and "in the course of employment."

Blank: Slade

As to the phrases appearing in § 287.020.10, the legislature created a blank slate effective August 28, 2005.

The primary role of courts in continuing statutes is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent. In determining legislative intent, statutory words and phrases are taken in their ordinary and usual sense. § 1.990. That meaning is generally derived from the dictionary. There is no room for construction where

words are plain and admit to but one meaning. Where no ambiguity exists, there is no need to resort to rules of construction.

Abrams v. Ohio Pacific Express, 819 S.W.2d 338 (Mo. banc 1991) (citations omitted).

In light of the directives of § 287.800 and the Missouri Supreme Court, our primary role is to strictly construe the Workers' Compensation Act giving the words and phrases of

§ 287.020 their ordinary and usual meaning.

Credibility

At the outset, I must address credibility issues. This is not a case where witness testimony reveals subtle differences of perspective or recollection regarding salient events. The primary players in this case—employee, Joe Kriegsemann, and Renee Martin—testified very differently about significant events. The stark differences in their descriptions of the events suggest that one or more

whisques are not accurately recounting the events. Under these circumstances, the Commission is charged with the task of assessing the credibility of the witnesses to determine who is believable.

The record reveals few reasons to believe Mr. Kriegsemann and many reasons to question his versatility. Mr. Kriegsemann has several convictions for passing bad checks. Mr. Kriegsemann is romantically involved with employee's sole owner. Bad acts in a witness' past or a witness' romantic entanglement with a stakeholder do not conclusively preclude a finding that the witness' testimony is

credible, but Mr. Kriegsemann's testimonial performance did not bolster my belief in his versatility.

The primary issue in dispute is whether or not employee was authorized to be working at the Watson Road site at the time of his injury on February 14, 2006. Mr. Kriegsemann testified that he pulled the crew off the Watson Road job on February 3 and had not authorized it to return as of the morning of February 14. Employee denies that Mr. Kriegsemann ever told him the job was

stopped. Ms. Martin was unaware of any work stoppage at Watson Road. Mr. Kriegsemann's February 6 letter to Mr. Campiere does not allude to any work stoppage in progress. Only the testimony of Bradley Pinkerton supports Mr. Kriegsemann's testimony that he told the crew to pass up on February 3 because it might not be coming back. It was Mr. Pinkerton's first day and he was only at

the Watson Road site in the morning. I am not convinced Mr. Pinkerton was familiar enough with employer's operations to provide persuasive evidence on this issue. I find incredible Mr. Kriegsemann's testimony that Mr. Kriegsemann directed employee to work elsewhere on February 14, 2006. I also find incredible his testimony that employee was not authorized to work at the Watson Road

site on February 14, 2006.

Mr. Kriegsemann and employee agree that work was not performed at the Watson Road site the week of February 6 through February 10 due to inclement weather. Mr. Kriegsemann contends he left phone messages offering employee work at other job sites each day that week, yet Mr. Kriegsemann could not identify the calls on the phone records offered by employer. Employee

testified he spoke with Mr. Kriegsemann only one time and that was on February 6.

By Mr. Kriegsemann's account, employee was not the only person Mr. Kriegsemann had trouble contacting by phone. Mr. Kriegsemann testified that on the morning of February 14 he tried unsuccessfully if or it times to reach Mr. Campiere by phone. Again, no such calls are reflected on the phone records offered into evidence by employer. Ms. Martin testified that Mr. Campiere came to see

her at her real estate job because Mr. Campiere could not reach Mr. Kriegsemann that same morning. Mr. Campiere's act of visiting Ms. Martin tends authenticity to the suggestion that it was Mr. Kriegsemann who was out of touch that morning, not Mr. Campiere.

There are other inconsistencies and curiosities in the record involving Mr. Kriegsemann. He testified for met employee at the Watson Road site after the injury; employee testified Mr. Kriegsemann met employee at the medical clinic. Mr. Kriegsemann testified he assumed employee quit when employee did not call back to accept work on February 14. I wonder why Mr. Kriegsemann did not

assume employee quit when employee allegedly did not call back to accept work on February 6? On February 7? February 8? On February 10?

Ms. Martin's testimony reveals curiosities, as well. By her account, Ms. Martin believed Mr. Kriegsemann was having no luck getting return calls from employee. Ms. Martin testified Mr. Kriegsemann failed again the morning of February 14. Yet, it is Ms. Martin's testimony that when Mr. Campiere came to see her on February 14 because he could not reach Mr. Kriegsemann, Ms. Martin told Mr.

Campiere she had talked to Mr. Kriegsemann just 10 minutes earlier and Mr. Kriegsemann said he had been trying to reach Mr. Campiere all morning. Ms. Martin told Mr. Campiere, "If you want to go ahead and try and get hold of Eric, go ahead. Tell him to call Jim."

Summarizing Ms. Martin's testimony regarding the state of affairs as of the morning of February 14: Ms. Martin is employer's sole owner; Mr. Kriegsemann is her boyfriend and manages all of employer's jobs and crews; Mr. Campiere is employer's customer, and, employee has largely ignored employer over the past 11 days. Essentially, employer is asking me to believe that when employee's

customer came to speak with the owner because he could not get in touch with employer's foremen, the owner told the customer to call the allegedly irresponsible employee to get in touch with the foreman, even though she had just spoken with the foreman 10 minutes prior. This makes no sense. A responsible business owner heads with this situation would pick up the phone and contact the

foreman for the customer. A responsible business owner would not refer the customer to seek help from a worker the owner thinks is irresponsible. If Ms. Martin told Mr. Campiere to call employee, it was because she was authorizing Mr. Campiere to speak directly to employee to tell him to resume work at the Watson Road site. And I think that is what happened.

According to Ms. Martin's testimony, on February 24, 2006, she departed from her usual payroll procedure and purchased a money order to pay employee his final pay. She marked the receipt that the pay was for the week ending February 9, 2006. The reason Ms. Martin gives for not going through employee's regular payroll service to generate employee's payroll was because she "had not

heard from [employers] in some time." I am not persuaded by Ms. Martin's explanation for paying employee with a money order for several reasons:

- The regular date to submit payroll for February 9 was February 16. As of February 16, Ms. Martin was aware that employee was injured on February 14. Her suggestion that she had not heard from employee in a while makes no sense unless "some time" meant February 15.

- Ms. Martin testified that Mr. Kriegsemann was the one who dealt with the crews, as why would she have been expecting to hear from employee?

- Employer's payroll service would have processed the payroll submitted by Ms. Martin whether Ms. Martin had spoken