Phillip Hurn v. Schoen Equipment, Inc.

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: SEPTEMBER 11, 2003
5. State location where accident occurred or occupational disease was contracted: LAWRENCE CTY, 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 painting on a “fold-out” ladder, claimant fell approximately 6 feet, landing with his weight on his left knee.
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: LEFT KNEE
14. Nature and extent of any permanent disability: 17.5% of the left lower extremity
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? $31,555.29
18. Employee's average weekly wages: Unknown
19. Weekly compensation rate: $40.00
20. Method wages computation: Stipulation

1. Amount of compensation payable: Unpaid medical expenses: $31,555.29 21 weeks of temporary total disability (or temporary partial disability) 840.00 28 weeks of permanent partial disability from Employer 1,120.00 N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: NO

TOTAL: $\ 33515.29

1. Future requirements awarded:

Said payments to begin IMMEDIATELY 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

John Cowherd

Employee: Phillip Hurn

Injury No. 03-105376

Dependents: N/A

Employer: Schoen Equipment, Inc.

Insurer: Universal Underwriters Insurance Company

Additional Party: Litton \& Giddings Radiological Associates (Health Care Provider)

Hearing Date: October 4, 2006

Checked by: LTW

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 4, 2006. The parties were afforded an opportunity to submit briefs. The parties, however, requested opportunity to settle the case and that an award not immediately issue. Subsequently, the parties were unable to reach an agreement, and in electing to not submit briefs, the parties allowed the record to be completed and submitted to the undersigned for issuance of an award on or about December 14, 2006.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about September 11, 2003 Schoen Equipment, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Universal Underwriters Insurance Company.

(2) On or about September 11, 2003 the claimant Phillip T. Hurn sustained an accident.

(3) The above-referenced accident occurred in Lawrence County, Missouri. The parties agree to venue lying in Newton County, Missouri. Venue is proper.

(4) The claimant notified the employer of his injury as required by Section,287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

The claimant Phillip T. Hurn is 64 years of age, having been born on October 25, 1942. Mr. Hurn is a resident of Mt. Vernon, Missouri. Also, Mr. Hurn enjoys a varied work history involving physical labor, includes employment and selfemployment involving farm work, driving trucks, and hauling cattle.

Schoen Equipment, Inc. is a family business located in Freistatt, Missouri, and is engaged in the business of selling and servicing John Deere products. As a small family business situated in a rural community, Schoen Equipment, Inc. owns and/or leases a couple of buildings, which are described as barns, and are utilized by the company as storage facilities. Notably, Schoen Equipment, Inc. is responsible for maintaining its buildings, including the barns or storage facilities that were worked on by Mr. Hurn during the alleged employment period in question.

Prior to September 2003 Mr. Hurn hauled equipment for Schoen Equipment, Inc., which involved a number of years working off and on for the company as a subcontractor to an individual who did hauling work for Schoen Equipment, Inc. Notably, in June 2003 Mr. Hurn approached James (Jim) O. Schoen (General Manager of Schoen Equipment, Inc. and a principal shareholder) about securing employment with the company. According to Mr. Schoen, Mr. Hurn told him he was "down on his luck and needed work." Further, according to Mr. Schoen, the company was not in a position to hire Mr. Hurn as an employee; but, individually, he agreed to hire Mr. Hurn to paint a building (barn) on the family homestead and other buildings of Schoen Investment. Apparently, Schoen Investment utilized several buildings, and Mr. Schoen assigned to Mr. Hurn the task of painting the buildings with a color that would match.

According to Mr. Hurn, he agreed to accept this work and be paid at the compensation rate of $\ 8.00 an hour, and he generally worked 40 hours a week. Mr. Hurn noted that he was not engaged in any painting business, as he owned no personal supplies and did not hold himself out as an entrepreneur or sole-proprietor, or painter. Rather, he simply performed the work (painting) given to him by Mr. Schoen, and kept track of the hours worked with a scratch pad situated in the back room of one of the company buildings. Additionally, Mr. Hurn noted that Mr. Schoen purchased or secured all of the supplies, including the paint and paint brushes; and Mr. Schoen instructed him to paint all the buildings by hand with a paint brush. Further, Mr. Hurn noted that he and Mr. Schoen did not agree to a specific completion date or specific salary or contract price for the work to be performed