Tim Young v. Stoam Industries, LLC

The above-entitled workers’ compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated August 22, 2008.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued August 22, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 10th day of December 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Employee: Tim Young

Injury No. 07-095960

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Stoam Industries, LLC

Additional Party: Second Injury Fund

Insurer: Uninsured

Hearing Date: May 1, 2008

June 2, 2008 record closed

Checked by:

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: AUGUST 29, 2007
5. State location where accident occurred or occupational disease contracted: TANEY COUNTY, 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? UNINSURED
11. Describe work employee was doing and how accident happened or occupational disease contracted: ASSEMBLING A TREE HOUSE
12. Did accident or occupational disease cause death? NO

1. Parts of body injured by accident or occupational disease: FACE AND HEAD
2. Compensation paid to-date for temporary disability: -0 -
3. Value necessary medical aid paid to date by employer/insurer? -0 -
4. Value necessary medical aid not furnished by employer/insurer? $\ 33,561.00
5. Employee's average weekly wages: N/A
6. Weekly compensation rate: $\ 40.00
7. Method wages computation: STATUTORY

1. Amount of compensation payable:

Unpaid medical expenses: $\ 33,561.00

10 weeks of temporary total disability (or temporary partial disability) (\$400.00)

Additional Medical: ADDITIONAL MEDICAL CARE ORDERED

Each of said payments to begin IMMEDIATELY__ and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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:

Attorney Patrick Platter

Employee: Tim Young

Injury No. 07-095960

- Whether the claimant gave the employer proper notice of the injury?

- Whether the venue is proper?

- Whether the alleged accident of August 29, 2007 caused the injuries and disabilities for which benefits are now being claimed?

- Whether the alleged employer is obligated to pay for certain past medical care and expenses in the amount of $\ 33,561.00 ?

- Whether the claimant has sustained injuries that will require additional medical care in order to cure and relieve the claimant of the effects of the injuries?

- What is the applicable compensation rate?

- Whether the claimant is entitled to temporary disability benefits? (The claimant seeks payment of 10 weeks of past temporary disability compensation, payable for the period of August 30, 2007 through November 7, 2007.)

- Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of medical care and expenses, relative to the claim against an uninsured employer?

- Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is entitled to reimbursement against the alleged employer relative to payment of medical care and expenses because of the alleged employer not being insured under Chapter 287, RSMo.

- Whether the claimant sustained any permanent disability as a consequence of the alleged accident of August 29, 2007; and, if so, what is the nature and extent of the disability?

- Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for permanent disability compensation because of combination of injuries combining to cause additional disability greater than the simple sum?

The claimant testified at the hearing in support of his claim. In addition, the claimant presented at the hearing of this case the testimony of Ashley Holm. Additionally, at the hearing of May 1, 2008, the claimant offered for

admission the following exhibits:

Exhibit A Claim for Compensation

Exhibit B Certificate of Corporate Records from Secretary of State for Stoam Holdings, L.L.C.

Exhibit C . Records from Missouri Department of Revenue

Exhibit D Records from J\&S Automotive Regarding Stoam Industries, L.L.C.

Exhibit E Records from Anthem Blue Cross and Blue Shield Regarding Stoam Holdings, L.L.C.

Exhibit F Medical Records from St. John's Clinic Regarding Tim Young

Exhibit G Medical Records from St. John's Health System Regarding Tim Young

Exhibit H Invoice Statement from St. John's Clinic Regarding Tim Young

Exhibit I Medical Bills from St. John's Hospital Regarding Tim Young

Exhibit J1 Photograph of Tim Young

Exhibit J2 Photograph of Tim Young

Exhibit K Letter Dated October 10, 2007 from Carlos Licona to Stoam Florida, LLC (Attention: Fernando Rosales; Bob Williams; Pat Clawson; Joey Wright; \& Don Wood)

Exhibits A through J2 were received and admitted into evidence. However, the undersigned received but denied admission of Exhibit K.

Subsequent to the May 1, 2008 hearing, in light of the record being left open for submission of additional evidence, the parties were afforded opportunity to submit additional evidence. In this context, and in light of evidence offered by Stoam Holdings, L.L.C., successor in interest to Stoam Industries, L.L.C., the claimant reoffered for admission Exhibit K, and offered for admission the following additional exhibits:

Exhibit L Audio Copy of Micro-Cassette

Exhibit M Deposition of Tim Young (Taken on June 2, 2008)

Exhibit N Deposition of Shawn Dixon (Taken on May 27, 2008)

Exhibit O Warranty Deed by Corporation (Saddlebrooke Property)

After consideration and review of the objections and arguments of counsel, Exhibits K, M, N and O are received and admitted into evidence. Exhibit L, as presented is received but denied admission. (Exhibit L involves a conversation of multiple individuals, and appears to include certain statements made by Russ Wright, which could be admissible as an exception to the hearsay rule as a party admission or admission against interest. However, as a whole and as offered for admission at this time, the exhibit is not admissible and is denied admission.)

The alleged employer Stoam Holdings, L.L.C., successor in interest to Stoam Industries, L.L.C. did not present any witnesses at the May 1, 2008 hearing of this case. Subsequent to the hearing, however, Stoam Holdings took several depositions and offered for admission the following exhibits:

Exhibit 1 Edited Wage Statement from Stoam Holdings

Exhibit 2 Records from Stoam Holdings Regarding Blue Cross Blue Shield

Exhibit 3 Deposition of Russell Wright (Taken on June 2, 2008)

Exhibit 4 Deposition of Russell Wright (Taken on May 27, 2008)

Exhibit 5 Deposition of Joe Wright (Taken on June 2, 2008)

Exhibit 6 Deposition of David Tune (Taken on June 2, 2008)

After consideration and review of the objections and arguments of counsel, Exhibits 2, 3, 4, 5 and 6 are received and admitted into evidence. Exhibit 1, which is not a business record, but a document prepared for purpose of litigation, is received but denied admission.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official notice of the documents contained in the Legal File, which include:

- Minute Entries

- Order (Denial of Continuance)

- Request for Continuance

- Order (Cancellation of Trial Setting \& Scheduling of a New Evidentiary Hearing Date)

- Notice of Hearing

- Request for Hearing-Hardship

- Answer of Second Injury Fund to Claim for Compensation

- Answer of Stoam Holdings, LLC / Stoam Industries, LLC to Claim for Compensation

- Certified Mail Receipts

- Motion of Claimant for Temporary or Partial Award

- Letter Dated June 2, 2008 (from Attorney Platter regarding submission of Exhibits L, M, N, and O)

- Letter Dated June 3, 2008 (from Attorney Platter regarding resubmission for admission Exhibit K)

- Letter Dated June 3, 2008 (from Attorney Arneson regarding submission of Exhibits 1, 2, 3, 4, 5, and 6)

- Letter Dated June 24, 2008 (from Attorney Platter regarding submission of post-hearing briefs and/or proposed awards)

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

This claim centers upon a fall that Mr. Young suffered on August 29, 2007. He was attempting to assemble a tree house (or deer stand) in a tree that was located at a residence occupied (but not owned) by Russell Wright, who is a principal office holder with the employer Stoam Holdings. Mr. Young contends that the tree house or deer stand being erected by him was inventory demo for Stoam Holdings, while Stoam Holdings was in process of endeavoring to transition and move its business to operations in Florida. According to Mr. Young, David Tune, who is a Stoam Holdings employee, hired him to help pack production equipment and erect this stand. StoamHoldings, however, argues that the company ceased to be engaged in business in June 2007, and Mr. Young was not engaged in any business activity of Stoam Holdings at the time of the August 29, 2007 accident. Rather, according to Stoam Holdings, Mr. Young was erecting a tree stand as an accommodation to Mr. Wright and Mr. Tune.

The claimant, Tim Young, is 41 years of age, having been born on February 12, 1967. Mr. Young is 6 feet, 3 inches, and in August 2007 weighed approximately 300 pounds