Floyd Butler v. LaPlant Transport, Inc.

Employee: Floyd Butler

Injury No. 06-131294

Dependents: N/A

Employer: LaPlant Transport, Inc.

Additional Party: N/A

Insurer: Continental Western Insurance Co.

Hearing Date: June 5, 2008

Checked by: MT/kh

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease? N/A
5. State location where accident occurred or occupational disease contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? No
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? N/A
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident happened or occupational disease contracted: N/A
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to date for temporary total disability: None
16. Value necessary medical aid paid to date by employer-insurer: None
17. Value necessary medical aid not furnished by employer-insurer: N/A
18. Employee's average weekly wage: N/A
19. Weekly compensation rate: N/A
20. Method wages computation: N/A
21. Amount of compensation payable: N/A
22. Second Injury Fund liability: N/A
23. Future requirements awarded: N/A

On June 5, 2008, Mr. Butler, the employee, appeared in person and by his attorney, Shawn Hanschen, for a hearing for a final award. The employer was represented at the hearing by its attorney, Michael Margherio. At the time of 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:

- Employer was a covered employer under the Missouri Workers' Compensation Act. Liability was fully insured by Continental Western Insurance Co.

- On or about December 28, 2006, the employee sustained an accident or occupational disease.

- Employer had notice of employee's accident.

- Employee's claim was filed within the time allowed by law.

- Employee's injury was medically causally related to an accident.

- There was no medical aid furnished by Employer-Insurer

- There was no temporary disability paid by the employer insurer.

- Nature and extent of disability was not an issue because this was a temporary hearing.

- Whether the employee was a covered employee.

- The employee's average weekly wage and rate

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Picture of ladder and scaffolding (this is not the ladder and scaffolding used by Mr. Butler)

B. Copy of a check to "Floyd Butler" from "Charles LaPlant" for \$2,500 dated January 20, 2007

C. Copies of 4 checks to "Floyd Butler". The first check was for $\ 300. This check was written by Charles LaPlant and

was dated December 16, 2006. The second check was for $\ 500. This check was written by Charles LaPlant and was

dated December 19, 2006. The third check was for $\ 200. This check was written by L.F. LaPlant and was dated December 26, 2006. The fourth check was for $\ 125. This was written by Charles LaPlant on January 6, 2007. All of the checks have "LaPlant Transport, Inc." on the top of them.

D. Copies of invoice rentals from Show Me Rentals billed to LaPlant Transport, Inc.

E. Bill to LaPlant Transport that has "Butler Home Improvements" on the top of the bill. The bill also has the following on

the upper right hand corner:

Floyd Butler

317 W. Pecan St.

East Prairie, Mo63845

(573)649-9047

F. Bill to Floyd Butler for LaPlant Office Job. The bill was addressed to 317 W. Pecan St. East Prairie, MO 63845

G. Deposition of L.F. LaPlant

H. Deposition of Billy Crowe

There was another exhibit that was sent to the administrative law judge on June 20, 2008. This was marked employee's exhibit A. This exhibit will not be considered because it was not submitted by the employee's attorney on the day of the hearing.

1. Time Sheet that is used at LaPlant Transport, Inc. by the employee's
2. A bill from "Butler Home Improvements" from Rosa LaPlant and a handwritten lists of jobs performed by Floyd Butler
3. Five bills to Mississippi County Library from "Butler Home Improvements"

- The alleged employee, Floyd Butler, testified that he first worked for Charles LaPlant's mom at Charles LaPlant's parent's house.

- Mr. Butler testified that Charles LaPlant hired him to work on a building at LaPlant Transport, Inc.

- Mr. Butler testified that originally he was going to scrape and repaint the building.

- Mr. Butler testified that he has been a member of the carpenter's union since 1999.

- Mr. Butler testified that he did not get the job through the union.

- Mr. Butler testified that the materials that he used were paid for by the LaPlant's and that Mr. Butler did not purchase any material. He also stated that the scissor lift was paid for by the LaPlant's. He also stated that the scaffolding equipment, including the ladder jacks, walk board and one ladder were provided by the LaPlant's. He further testified that he used his own tools.

- Mr. Butler testified that he worked for LaPlant Transport, Inc. for four weeks. He testified that he did not work on holidays or days that rained.

- Mr. Butler testified that he was paid $\ 25 dollars an hour and he testified that he worked 40 hours a week unless it was a holiday or a rainy day. Furthermore he stated that he worked for LaPlant Transport, Inc. for four weeks.

- Mr. Butler testified that Billy Crowe and Randy Crowe, employees of LaPlant Transport, Inc., helped him eight hours a day.

- Mr. Butler testified that Charles LaPlant instructed him on what to do. L.F. LaPlant, Charles La Plant's father, would look and see what was going on with Mr. Butler's work.

- Mr. Butler testified that LaPlant Transport, Inc. signed his checks.

- Mr. Butler testified that he thought that L.F. LaPlant was the owner of LaPlant Transport, Inc.

- Mr. Butler testified that he worked at LaPlant Transport, Inc. for the month of December until he was injured.

- Mr. Butler testified that when he came to work, he would work all day.

- Mr. Butler testified that he believed that he was an employee of LaPlant Transport, Inc.

- Mr. Butler testified that L.F. LaPlant gave him instruction from time to time.

- Mr. Butler testified that he was paid by the hour. He also testified that he had no written contract with LaPlant transport, Inc.

- When Mr. Butler was questioned about Employee's Exhibit E, an invoice that has "Butler Home Improvements" written on the top and dated December 19, 2008. Mr. Butler stated that if he was not furnished a timesheet, he wrote on what was handy.

- Mr. Butler testified that his pay checks were made out to "Floyd Butler" and not to a business.

- Mr. Butler testified that Charles LaPlant and L.F. LaPlant did not tell him how to do his job. They did not tell Mr. Butler how to do the painting. Mr. Butler stated that someone showed him what needed to be done for the wall repair but they did not tell him how to do the wall repair.

- Mr. Butler stated that he has been in the Carpenter's Union since 1999. He stated that when he was paid through the union there were tax deductions from his paycheck. He stated that when he worked at LaPlant transport, Inc. he did not fill out a W2 form. He also stated that he never filled out an application to work at LaPlant Transport, Inc.

- Mr. Butler testified that Randy Crowe and Billy Crowe worked at LaPlant Transport, and they were almost always with Mr. Butler. Mr. Butler stated that they were not with him when they would go to lube a truck. Furthermore, when Mr. Butler was working at LaPlant Transport, Inc. he only saw 1 or 2 trucks pull into the

building. Mr. Butler also stated that Randy Crowe and Billy Crowe helped with siding by holding up siding, but they did not help with painting. Mr. Butler also stated that they were working on siding for two to three weeks.

- Mr. Butler testified that he did not work on the trucks.

- Mr. Butler testified that the scaffold board and the ladder jacks were not in his truck when he returned from the hospital.

- Mr. Butler testified that on December 28, 2006 he was working on some scaffolding and the boards he was working on collapsed. Mr. Butler set up the scaffolding. Mr. Butler was to set up fascia board while he was on the scaffolding.

- Mr. Butler testified that he injured the left side of his body. Mr. Butler went to St. Francis Hospital. Mr. Butler remained in St. Francis Hospital for four or five days.

- Mr. Butler testified that his left foot continued to get worse. Mr. Butler further testified that a bone graft was performed on his left ankle and screws were used to tie this all together. Mr. Butler also stated that three weeks before the hearing it was determined that the bone graph had failed and there needed to be another bone graph.

- Mr. Butler testified that he did not have insurance to pay for this.

- Mr. Butler stated that he talked to Charles LaPlant about Workers" Compensation. He stated that Charles LaPlant told him that he did not want to use Workers' Compensation because if he did not use Workers' Compensation by May, money would be returned.

- Mr. Butler testified that after Mr. Butler's injury, Charles LaPlant gave him a \$2,500 loan in order to help Mr. Butler pay off bills.

- Charles LaPlant testified that he is self employed and he is the president of LaPlant Transport, Inc. He testified that he is the only owner of LaPlant Transport, Inc. and that his father, L.F. LaPlant has no interest in the company.

- Charles LaPlant testified that his company covers 48 states. He also stated that his company employs 18 drivers, 2 mechanics, and 2 secretaries.

- Charles LaPlant testified that the mechanics' duties included preventative maintenance, working on tires, and working on breaks.

- Charles LaPlant testified that in December of 2006 Billy Crowe had worked at LaPlant transport for 6 months and Randy Crowe had worked at LaPlant Transport for $21 / 2$ years.

- Charles LaPlant testified that he rents the building at LaPlant Transport, Inc.