Decision date: January 29, 200919 pages
Summary
The Commission affirmed the administrative law judge's award of workers' compensation to employee Charles Goodson for a head injury caused by a falling tree, rejecting arguments to pierce the LLC veil and denying the Second Injury Fund a credit against liability. The decision upheld that the employer's failure to maintain workers' compensation insurance did not proximately cause the work-related injury itself.
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| FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion) |
| Employee: | Charles Goodson |
| Employer: | GB Logging LLC Gary Boushie (denied) |
| Insurer: | None |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| 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, as supplemented herein. The award and decision of Administrative Law Judge Lawrence Kasten, issued March 20, 2008, is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, award and decision herein. | |
| Employee has not established the LLC veil should be pierced | |
| We affirm the administrative law judge's conclusion that the LLC veil of GB Logging, LLC, should not be pierced. As noted by the administrative law judge, one seeking to pierce the LLC veil must prove three elements: | |
| (1) Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and | |
| (2) Such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or dishonest and unjust act in contravention of plaintiff's legal rights; and | |
| (3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of. | |
| Collet v. American Nat'l Stores, Inc., 708 S.W.2d 273, 284 (Mo. App. 1986) (citation omitted). | |
| We write separately to address the third prong first because it is dispositive of the matter. Employee has failed to establish the third prong. Employee argues that Mr. Boushie proximately caused injury or unjust loss to Mr. Goodson by breaching his duty to maintain workers' compensation insurance. The injury with which we are concerned is employee's condition of ill-being due to the work injury. The proximate cause of employee's work injury was a tree falling on his head. Mr. Boushie's failure to purchase workers' |
compensation insurance did not cause employee's condition of ill-being.
The Second Injury Fund is not entitled to a credit
The administrative law judge concluded that GB Logging, LLC, is not entitled to a credit against its liability of $\ 25,000 representing the amount paid to employee by the insurer of GB Enterprises, Inc. The administrative law judge relied on $\S 287.270$ RSMo, in reaching his conclusion. We affirm the administrative law judge's determination.
The Second Injury Fund argues that it is entitled to the credit. We disagree. Section 287.220.5 RSMo provides, in part:
If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer.
This above-quoted language "imposes liability on the SIF as the statutory guarantor of past and future medical expenses for employees of uninsured employers." Otte v. Langley's Lawn Care, Inc., 66 S.W.3d 64, 73 (Mo. App. 2001). This statute is unique in that the Second Injury Fund must defend against claims under this subsection with only those defenses that would be available to the uninsured employer. This principle was articulated in Otte wherein the Second Injury Fund attempted to defend a claim by arguing that the Second Injury Fund statute of limitations found in section 287.430 RSMo, precluded the claim. The Court said "[s]ince the claim for compensation against employer was timely under section 287.430, the defense of the statute of limitations was not available to the employer, and thus not available to the SIF under the provisions of section 287.220.5. Under the SIF's interpretation, the SIF would have available to it a defense not available to employer, which would conflict with the plain language of section 287.220.5." Otte at 73.
Because employer is not entitled to a credit under $\S 287.270$, neither is the Second Injury Fund.
The Commission 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 29th day of January 2009.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
Secretary
Employee: Charles Goodson
Injury No. 04-113765
Dependents: N/A
Employer: GB Logging LLC
Gary Boushie (denied)
Additional Party: Second Injury Fund
Insurer: None
Hearing Date: December 17, 2007
Checked by: LK/kh
- Are any benefits awarded herein? Yes.
- Was the injury or occupational disease compensable under Chapter 287? Yes.
- Was there an accident or incident of occupational disease under the Law? Yes.
- Date of accident or onset of occupational disease? August 11, 2004.
- State location where accident occurred or occupational disease contracted: Madison County, Missouri.
- Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
- Did employer receive proper notice? Yes.
- Did accident or occupational disease arise out of and in the course of the employment? Yes.
- Was claim for compensation filed within time required by law? Yes.
- Was employer insured by above insurer? Uninsured.
- Describe work employee was doing and how accident happened or occupational disease contracted: The employee was stuck by a falling tree.
- Did accident or occupational disease cause death? No.
- Parts of body injured by accident or occupational disease: Body as a whole referable to the neck and head; and left shoulder.
- Nature and extent of any permanent disability: 20 % of the body as a whole referable to the head and neck (400 week level); and 7.5 % of the left shoulder ( 232 week level).
- Compensation paid to date for temporary total disability: None.
- Value necessary medical aid paid to date by employer: None.
- Value necessary medical aid not furnished by employer: \14,561.83
- Employee's average weekly wage: \ 274.92
- Weekly compensation rate: $\ 183.28
- Method wages computation: See Rulings of Law.
- Amount of compensation payable:
$\ 14,561.83 in previously incurred medical bills.
$\ 5,681.68 in temporary total disability.
$\ 17,851.47 in permanent partial disability.
Total: $\ 38,094.98
- Second Injury Fund liability: $\ 14,561.83 in medical bills.
- Future requirements awarded: None.
Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Ken Seufert.
On December 17, 2007, Charles Goodson, appeared in person and by his attorney, Ken Seufert, for a hearing for a final award. Gary Boushie and GB Logging LLC were represented at the hearing by attorney Lindell Dunivan. Also present was Gary Boushie. The Second Injury Fund was represented by Assistant Attorney Gregg Johnson. Included in the Claim was an alleged third employer, GB Enterprises Inc., which was insured by Missouri Employer's Mutual Insurance Company. Mr. Goodson settled his claim against GB Enterprises Inc. and Missouri Employer's Mutual Insurance Company for $\ 25,000.00 on June 21, 2007 with all issues listed in dispute. At the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:
- Charles Goodson's claim was filed within the time allowed by law.
- The alleged employers have not paid any medical aid.
The alleged employers have not paid any temporary disability.
- Gary Boushie and GB Logging LLC did not have workers’ compensation insurance on August 11, 2004.
- Covered employer(s)
- Covered employee
- Accident
- Notice
- Average weekly wage and rate of compensation
- Medical causation
- Claim for previously incurred medical
- Claim for mileage
- Temporary total disability
- Permanent partial disability
- Liability of the Second Injury Fund for payment of medical expenses as a result of the alleged employers being uninsured
- Alleged credit for the $\ 25,000.00 compromise settlement between Charles Goodson and GB Enterprises Inc. /Missouri Employer’s Mutual Insurance.
- Attorney’s fees and costs under 287.560 RSMo.
The following exhibits were offered and admitted into evidence:
Claimant's Exhibits
- Work for Hire Agreement
- Certificate of organization of a limited liability company issued by the Secretary of the State for GB Logging LLC
- Response of Gary Boushie, as a member, organizer or manager of GB Logging LLC to subpoena duces tecum
- Response of Gary Boushie, individually, to subpoena duces tecum.
- Supplemental response of Gary Boushie, individually, to subpoena duces tecum.
- Records regarding average weekly wage.
- Medical Report of Dr. Berkin.
- Medical records
- Medical bills
- Medical records for prior injury.
- July 24, 2006 Deposition of Gary Boushie.
- Withdrawn prior to being offered
- Itemized statement for legal services rendered
Alleged Employers' Exhibits
- April 25, 2005 deposition of Charles Goodson
Second Injury Fund Exhibits: None offered
Witnesses: Mike Betsch, for the claimant; Charles Goodson, claimant; Gary Boushie, for the alleged employers.
Briefs: The claimant filed his brief on the day of the hearing. The alleged employers filed their brief on December 28, 2007. The claimant filed a response to the alleged employers' brief on January 11, 2008. The Second Injury Fund filed its brief on January 17, 2008.
Judicial Notice of the contents of the division file in Injury Number 04-113765 including the compromise settlement between Charles Goodson and Missouri Employer's Mutual Insurance Company and GB Enterprises Inc.
Gary Boushie operates a sawmill through GB Enterprises Inc. which was incorporated in 1990. Gary Boushie is the major stock holder. He and his wife are the only members of the board of directors and the only officers. He is the President and his wife is the Secretary. GB Enterprises Inc.'s usual business is a sawmill operation. The sawmill cuts saw logs into lumbar and sells lumbar products such as railroad ties, pallet lumbar, and mulch. The sawmill does not own timber land and does not harvest timber. It buys saw logs from others to make the lumbar products. In August of 2004, it had more than four employees and had workers' compensation insurance. The sawmill is located on
Full decision text continues in the plain-text archive copy.
November 5, 2014
The Commission affirmed the Administrative Law Judge's award of workers' compensation benefits to Edward Noland, a firefighter struck in the head by a tree branch while fighting a fire on December 31, 2011. The decision awarded permanent total disability benefits for the claimant's lifetime, along with unpaid medical expenses of $11,735 for a modified van.