Benjamin Marcak v. West 160 Scrap and Salvage, L.L.C.

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 March 5, 2008. The award and decision of Chief Administrative Law Judge Victorine Mahon, issued March 5, 2008, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this 17th day of September 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman Alice A. Bartlett, Member John J. Hickey, Member

Employee: Benjamin Marcak

Injury No. 06-015783

Dependents: N/A

Employer: West 160 Scrap and Salvage, L.L.C.

Additional Party: Treasurer of the State of Missouri as custodian of The Second Injury Fund

Insurer: Uninsured

Medical Fee Dispute: St. John's Physicians and Clinics

Hearing Date: January 4, 2008

Checked by: VRM/dlb

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: January 18, 2006.
5. State location where accident occurred or occupational disease was contracted: Howell County, Missouri.

- Was above employee in employ of above employer at the time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.
2. Did accident or occupational disease arise out of and in the course of the employment? Yes.
3. Was claim for compensation filed within time required by Law? Yes.
4. Was employer insured by above insurer? No.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was cutting steel when he burned his leg.
2. Did accident or occupational disease cause death? No. Date of death? N/A.
3. Part(s) of body injured by accident or occupational disease: Right leg/ankle.

- Nature and extent of any permanent disability: 10 percent Permanent Partial Disability to leg at the 155 week level.

1. Compensation paid to-date for temporary disability: None.
2. Value necessary medical aid paid to date by employer/insurer? None.
3. Value necessary medical aid not furnished by employer/insurer? \26,289.70.
4. Employee's average weekly wages: \ 330.00
5. Weekly compensation rate: $\ 220.00
6. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 26,289.70.

To resolve the direct pay Medical Fee Dispute, $\ 3,033.00 is to be paid directly to St. John’s Physicians and Clinics.

The remaining $\mathbf{\$ 2 3 , 2 5 6 . 7 0}$ shall be paid directly to Claimant for reimbursement of medical bills.

No weeks of temporary total or temporary partial disability are awarded.

Employee is awarded 15.5 weeks of Permanent Partial Disability for a total of \3,410

(10 percent at the 155 week level or 15.5 weeks \mathrm{X} \$ 220=\ 3,410 )

Total: $\mathbf{\$ 2 9 , 6 9 7 . 7 0}.

1. Second Injury Fund liability: Yes.

For uninsured medical benefits: \ 26,289.70.

1. Future Requirements of the Award: None.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent of all payments to Claimant in favor of the following attorney for necessary legal services rendered to Claimant: Randy Alberhasky.

1. What is the liability of the Second Injury Fund?
2. What is the liability of the Second Injury Fund or West 160 Scrap and Salvage, L.L.C. for the payment of the direct Medical Fee Dispute filed by St. John's Physicians and Clinics in the amount of $\ 3,033.00 ?

The following exhibits were admitted on behalf of the alleged Employer:

Exhibit 1 Payroll report for 2005 and 2006

Exhibit 2 Payroll tax report beginning February 22, 2006 to April 30, 2006

Exhibit 3 Payroll tax report beginning March 4, 2005 to April 29, 2005

The following exhibits were admitted on behalf of Claimant:

Exhibit A Hospital Records - St. John's Health System

Exhibit B Medical Bills - St. John's Hospital

Exhibit C Medical Bills - Ozark Medical Center

Exhibit D Medical Bills - St. John's Hospital

Exhibit E Claim for Compensation and certified mail receipt

Exhibit F Answer on behalf of West 160 Scrap and Salvage, L.L.C.

Exhibit G Answer on behalf of the Second Injury Fund

Exhibit H Deposition - Dr. David Paff

Exhibit I Deposition - Joe Harris, Jr.

On January 18, 2006, Benjamin Marcak, Jr. (Claimant) was working at a scrap yard known as the West 160 Scrap and Salvage, L.L.C., located in West Plains, Howell County, Missouri. Claimant worked regular hours from 7:00 a.m. to 4:00 or 5:00 p.m., five days per week. Claimant was performing work as directed by the L.L.C.'s sole owner/member-Joe Harris. Claimant's usual job, along with a coworker named Don Coates, was to prepare cars for crushing and then crush the vehicles. Claimant removed parts, such as the gas tank, before the car was crushed. He also cut steel with a torch. Sometimes Claimant and Coates worked at the salvage yard of West 160 Scrap and Salvage, L.L.C.; other times the pair worked at a different job site at the direction of Joe Harris. Joe Harris owned the portable car crusher and all of the equipment that Claimant and Coates used. Joe Harris arranged for the transportation of the car crusher. He also taught the men how to use the car crusher, which Harris said was pretty straight forward.

On the date of his injury, Claimant was cutting steel, as directed by Harris, using a torch, when his pant leg caught on fire. The fire spread to Claimant's left leg at the ankle. Joe Harris drove Claimant to the hospital.

Dr. David. Paff indicated that Claimant's medical treatment was necessary to cure and relieve Claimant of the effects of his injury. The bills incurred in obtaining the necessary treatment also were necessary and reasonable, and the charges were customary. These bills total $\ 26,289.70. Of that amount, St. John's Physicians and Clinics has filed a Medical Fee Dispute seeking direct payment in the amount of $\ 3,033.00.

The credible, uncontradicted opinion of Dr. Paff is that Claimant sustained a 10 percent Permanent Partial Disability to his left lower leg at the 155 week level.

Harris indicated that the L.L.C. now has several employees, but at the time of Claimant's injury it only had one: Sharon Truman. In deposition, Harris was asked to identify quarterly contribution and wage reports that he had filed with the Missouri Division of Employment Security. These documents indicate that West 160 Scrap and Salvage, L.L.C. reported having only two employees in the fourth quarter of 2005: Sharon Truman and Jeff Stewart. Harris said that Stewart was not working for him at the time of Claimant's injury. When asked in deposition how many independent contractors worked at West 160 Scrap and Salvage, L.L.C. in the fourth quarter of 2005, Harris identified only two: Claimant and Donnie Coates (Ex. 1, p. 63-64). Harris specifically denied that there were any other contract workers at West 160 Scrap and Salvage, L.L.C. in the first quarter of 2006 (Ex. 1, p. 64).

At hearing, Harris contradicted his deposition testimony, admitting that there were other independent contractors at the job site when Claimant was working. Despite Claimant's request, Harris provided no documentation demonstrating the names of individuals who had purportedly worked as independent contractors. Harris also did not provide Claimant, Coates, or anyone else with a 1099 tax form. When asked how the independent contractors were supposed to pay his taxes, Joe Harris indicated that they should get an accountant.

In addition to Claimant, the following individuals were identified by various witnesses as potential employees of West 160 Scrap and Salvage, L.L.C. at the time of Claimant's injury:

Although he did not consider himself an employee, Harris draws a salary and manages the day to day business of West 160 Scrap and Salvage, L.L.C. (Ex. 1, p. 15). He has worked for West 160 Scrap and Salvage, L.L.C. since the day it started on January 1, 2005.

Claimant and Donnie Coates began work at West 160 Scrap and Salvage, L.L.C. in the autumn of 2005, although Coates started earlier. They continued working for the alleged employer until they were discharged by Joe Harris sometime in January 2006, after Claimant's injury. Harris now performs