David Parsons v. Steelman Transportation, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-097323

Employee: David Parsons

Employer: Steelman Transportation, Inc. (Alleged)

Insurer: Missouri Employers Mutual Insurance Company (Alleged)

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 1, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued October 1, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of March 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: David Parsons

Injury No. 07-097323

Dependents: N/A

Employer: Steelman Transportation, Inc. (alleged)

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance Company

Hearing Date: September 4, 2009

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/db

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: 7/2/2007.
5. State location where accident occurred or occupational disease was contracted: Portland, Oregon.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? No.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
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 was contracted: Claimant was lifting side panels off a trailer when he sustained a hernia.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Abdomen - hernia.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: David Parsons

1. Nature and extent of any permanent disability: None awarded.
2. Compensation paid to date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer? None.
4. Value necessary medical aid not furnished by employer/insurer? None Awarded.
5. Employee's average weekly wages: $\ 2,522.05.
6. Weekly compensation rate: $\ 742.72 TTD/\$389.04 PPD.
7. Method wages computation: By agreement of the parties.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: N/A.

TOTAL: NONE.

1. Future requirements awarded: None.

Employee: David Parsons

Injury No. 07-097323

Dependents: N/A

Employer: Steelman Transportation, Inc. (alleged)

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance Company

Hearing Date: September 4, 2009

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/db

David Parsons (Claimant) requested a hearing after Steelman Transportation, Inc. (alleged Employer) denied liability for medical treatment, temporary total disability, and permanent disability. The parties appeared for a final hearing in Springfield, Greene County, Missouri, before the undersigned Administrative Law Judge on September 4, 2009. Randy Alberhasky represented Claimant. Shari Lockhart appeared on behalf of the alleged Employer. The parties agree to the following facts:

Steelman Transportation is an employer within the meaning of the Missouri Workers’ Compensation Law and was fully insured on July 2, 2007, by Missouri Employers Mutual Insurance Company. On July 2, 2007, Claimant sustained an injury by accident, resulting in a hernia, while working in Portland, Oregon. Physicians for both parties have rated the hernia as resulting in a five percent Permanent Partial Disability to the body as a whole. No medical benefits, Temporary Total Disability, or Permanent Partial Disability have been paid. Jurisdiction, venue, statute of limitations, and notice are not disputed. Claimant's average

weekly wage was $\ 2,522.05, yielding a Temporary Total Disability rate of $\ 742.72 and

Permanent Partial Disability rate of $\ 389.04.

1. Evidentiary Issue: Do the Owner-Operator Contract and Lease-Purchase Contract between Claimant and Steelman Transportation, Inc., constitute "statements" requiring disclosure, as prescribed by $\S 287.215$ RSMo Cum Supp. 2006?
2. Was Claimant an employee of Steelman Transportation?
3. Did the Accident occur within the course and scope of employment?
4. Is Claimant entitled to Temporary Total Disability, and if so, how much?
5. Is Claimant entitled to Permanent Partial Disability?
6. Is Claimant entitled to reimbursement of $\ 14,527.70 in medical expenses?

The following exhibits were admitted on behalf of Claimant:

Medical Records

A. Cox Medical Center ( 75 pages)

C. Ferrell Duncan Clinic (13 pages)

D. St. John's Health Center (13 pages)

E. St. John's Clinic, Smith Glynn Callaway (12 pages)

Medical Bills

F. Cox Medical Center

G. Emergency Physicians of Springfield

H. Ferrell Duncan Clinic

I. St. John's Hospital

J. St. John's Physicians and Clinics

Medical Report

K. Dr. David Paff

Documents

L. Claim

M. Answer of Alleged Employer and Insurer

N. Letter dated February 19, 2008,

O1. Position Requirements

O2. Contractor Settlement Deductions

O3. TripPak

O4. Driver Qualifications

O5. Fleet Managers Expectations of Driver Contractors

These exhibits were admitted on behalf of alleged Employer and Insurer:

1. Medical Record: Springfield Neurological and Spine Institute (Dr. Lennard)
2. Explanation of Benefits - AIG Domestic Claims, Inc.
3. Independent Contractor Operating Agreement
4. Lease with purchase option contract summary
5. Cover letter dated November 13, 2007 regarding Operating Agreement.
6. Blank Copy of Independent Contractor Operating Agreement
7. Blank Copy of Lease with purchase option contract summary

11 Owner/Operator Handbook

The following exhibits were not admitted and were not withdrawn:

1. Copy of an Interstate Commerce Commission Certificate
2. Copy of an Order of the Missouri Division of Transportation
3. Copy of a letter of United States Department of Transportation

In early 2007, Claimant approached Steelman Transportation, Inc., about a job. He was accepted as a driver on May 5, 2007. Two months later, on July 2, 2007, Claimant was dispatched to deliver a load in Portland, Oregon. While in Portland, Claimant suffered a hernia as he was removing some side panels from the trailer he was hauling. There is no dispute that Steelman Transportation owned the trailer as opposed to the truck or tractor. Claimant gave notice of the injury to the dispatcher. Upon his return to Missouri, Claimant obtained medical treatment, including surgical repair of the hernia. He now seeks reimbursement of his medical bills, Temporary Total Disability, and Permanent Partial Disability. Both medical experts agree that Claimant sustained a five percent Permanent Partial Disability to the body as a whole at the time of the accident.

Jim Towery, President of Steelman Transportation, Inc., testified that Steelman is an "interstate common carrier, flat bed and specialized hauler." His company has been in operation

more than 11 years. Steelman's sales people call on shippers and manufacturers. Steelman bids to haul freight from one state to another. Sometimes it is a one-time spot bid, other times it results in a long-term contract with interstate shippers. Steelman has " 48 state authority and can operate in all 48 states." ${ }^{1}$ Steelman then contracts with drivers to perform those deliveries. Claimant was an over-the-road (OTR) truck driver.

Steelman carries workers' compensation insurance on its office workers and local delivery drivers. It does not carry workers' compensation on the 75 OTR truck drivers who make deliveries for Steelman throughout the United States because the company considers them to be independent contractors. Steelman Transportation requires all of its OTR drivers to carry a workers' compensation policy or an occupational accident policy. Claimant opted for an occupational accident insurance rather than workers' compensation. ${ }^{2}$

According to Towery, Steelman's company president, an OTR driver working with Steelman is precluded by federal law from driving for other trucking companies. Steelman has a bond to assure that the drivers with whom the company contracts limit their hours as required by federal regulations. As to assignments, Towery said all of its OTR truck drivers receive dispatches to and from the locations where the driver needs to be. But as an independent owneroperator, the driver may take any route he or she chooses to get from one city to another. OTR drivers receive a 1099 form with no taxes withheld. Claimant was not able to state whether he received a W-9, W-4, or 1099, but he agreed that employment taxes were not deducted from his weekly pay.

[^0]

[^0]: ${ }^{1}$ Uncertified photo-copies of what purported to be an Interstate Commerce Commission Certificate, and an Order from the Missouri Division of Transportation allowing Steelman Transportation to engage in intrastate transportation, were excluded upon Claimant's objection that the documents had not been authenticated or certified. That objection was sustained. There also was no foundation indentifying these documents as business records of Steelman Transportation. There was no objection made to Mr. Towery's earlier testimony, however, that his company was an interstate common carrier with authority to operate in 48 states.

${ }^{2}$ Evidence that Claimant obtained insurance was admitted solely for purpose of determining whether Claimant was an independent contractor or an employee since $\S 287.290$ RSMo, states that no cost of workers' compensation insurance is to be assessed against or collected or paid by an employee.

Steelman requires all OTR drivers to pass a Department of Transportation physical, maintain a CDL license, pass a drug test, complete any maintenance and repairs on his or her truck, report miles and keep a log as required by federal law, follow all applicable laws including DOT, state, local, traffic, and hazard laws. Fuel is the drivers' responsibility. If fuel is charged to Steelman, the driver must reimburse the company.

If a driver wants lumpers to unload freight, the driver pays for the help. OTR drivers pay their own federal taxes, fuel taxes, highway heavy vehicle use taxes, state or local axle, weight, mileage, property and other taxes. Claimant, like all OTR drivers who contract with Steelman, are responsible for ferry, bridge, tunnel and road toll charges. They are responsible for any fines or penalties unless it was for a pre-sealed load with a penalty for the truck being overweight or oversized.

OTR drivers either own their own trucks or opt to sign a lease purchase agreement with Steelman Transportation or with some other company. If the truck is leased from Steelman, monthly payments for the truck are deducted from the weekly settlement check; such was the case with Claimant. Upon completion of all monthly installments, Cla