Jack Chambers v. Dennis Rodgers d/b/a DS & F Plumbing

for them. Employee further stated that he directly billed the individuals he was doing the work for. Employee testified that he did the work for the aforementioned entities because they did not have the manpower to get the jobs done themselves.

On cross-examination, employee testified that the individuals he performed work for would call him at his home to have him come to their houses and work on their furnaces, pilot lights, plumbing, etc. Employee stated that he would then tell the individuals what time he would be able to come look at their problem.

With the exception of the invoices employee submitted for the jobs he completed for L \& J Plumbing, all of the invoices employee offered as evidence list only the individuals' names that the supplies and labor were sold to. The invoices make no reference to the "employers" employee was allegedly completing the jobs for. In addition, employee offered no tax records or other financial documentation evidencing that the jobs were in any way connected to the alleged employers. Employee testified that he lost most of his tax records and other business documentation in a flood caused by a washing machine valve failing to shut off.

The administrative law judge found that only the $\ 703.75 of extra income employee earned for the five jobs he performed for L \& J Plumbing should be used in calculating his additional wage loss benefits. ${ }^{1}$ As for the other 20 jobs employee requested to be included in said calculation, the administrative law judge found that employee performed the work pursuant to an agreement with the individual customers for whom he performed the work as a contractor, engaged as a sole-proprietor in his own business.

Consequently, said 20 jobs were not included in the calculation of his additional wage loss benefits.

We agree with the administrative law judge's conclusion. After reviewing the record in its entirety, we find that there is no credible evidence establishing a contractual relationship between employee and the alleged statutory employers (except for L \& J Plumbing).

Although employee testified at the final hearing that the alleged statutory employers would call him and send him to the individuals' homes to complete the jobs on their behalf, employee stated on cross-examination that he had previously testified that the individuals for whom he completed the work for were the ones that called him directly. Further, none of the invoices, except the L \& J Plumbing invoices, included any evidence that the job was being completed by employee on behalf of some other entity. Employee billed the individuals directly.

Based on the aforementioned, it would be illogical to conclude that employee completed the aforementioned jobs under any type of statutory employment relationship. Therefore, we find, as did the administrative law judge, that there was no contractual relationship between employee and any of the alleged statutory employers, other than L \& J Plumbing.

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[^0]: ${ }^{1}$ The Commission notes that the Second Injury Fund did not appeal the administrative law judge's finding with regard to the inclusion of the L \& J Plumbing jobs in the calculation of employee's additional wage loss benefits.

In addition to the aforementioned findings and analysis, we also found two numerical/calculation errors in the Award issued December 17, 2009, that need to be modified. The first error is found on page 7 of the Award in the table listing the relevant invoices. The first invoice listed, "Invoice No. 020004," states that the "Invoice Total" is " $\ 2,400.00." However, after reviewing a copy of the actual invoice included in Exhibit H, we find that the Invoice Total should actually be listed as $\ 2,450.00. The other error is found on page 12 with regard to the calculation of the additional wage loss benefits in the second paragraph. The paragraph states that "the Second Injury Fund is ordered to pay to the employee, Jack Chambers, the sum of $\ 3,717.27 in additional wage lost (sic) benefits under Section 287.220.9, RSMo. (103 and 2/7 weeks x \$36.09 = \3,717.27)." However, 103 and 2 / 7 weeks multiplied by \ 36.09 actually equals $\ 3,727.58.

For the foregoing, reasons we modify the Invoice Total of Invoice No. 020004 from $\ 2,400.00 to $\ 2,450.00 and we modify the amount of additional wage loss ordered to be paid by the Second Injury Fund to employee from $\ 3,717.27 to $\ 3,727.58.

We modify the award of the administrative law judge as stated herein. In all other respects, we affirm the award.

The award and decision of Administrative Law Judge L. Timothy Wilson issued December 17, 2009, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

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

Given at Jefferson City, State of Missouri, this 8th day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Jack Chambers

Injury No. 02-074468

Dependents: N/A

Employer: Dennis Rodgers d/b/a DS \& F Plumbing

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Hartford Insurance Company

Hearing Date: October 26, 2009

Checked by: LTW

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: July 12, 2002
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri
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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While working, Claimant fell off of a ladder and sustained an injury to his back, tailbone, and head.
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: Back, tailbone, and head
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 9,285.11
16. Value necessary medical aid paid to date by employer/insurer? $\ 8,930.88

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages:
3. Weekly compensation rate: $\ 362.49 TTD/ $\ 340.12 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:
2. Second Injury Fund liability: Yes

The Second Injury Fund is ordered to pay claimant the sum of $\ 3,717.27 in additional wage lost benefits.

TOTAL: $\ 3,717.27

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Patrick Platter, Esq.

Employee: Jack Chambers

Injury No. 02-074468

Dependents: N/A

Employer: Dennis Rodgers d/b/a DS \& F Plumbing

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Hartford Insurance Company

Hearing Date: October 26, 2009

Checked by: LTW

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 26, 2009. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about November 23, 2009.

The employee, Jack Chambers, appeared personally and through his attorney Patrick Platter, Esq. The Second Injury Fund appeared through its attorney, Barbara Bean, Assistant Attorney General. (The employer and insurer are no longer parties to this case, having previously entered into a Stipulation for Compromise Settlement with the employee, which received approval on September 26, 2005.)

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about July 12, 2002, Dennis Rodgers d/b/a DS \& F Plumbing was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by The Hartford Insurance Co.

(2) On the alleged injury date of July 12, 2002, Jack Chambers was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about July 12, 2002, the employee, Jack Chambers, sustained an accident, which arose out of and in the course and scope of his employment with DS \& F Plumbing.

(4) The above-referenced employment and accident occurred in Stone County, Missouri. The parties agree to venue lying in Greene County, Missouri. V