Ronald Thompson v. Corporate Transit of America

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-121001

Employee: Ronald Thompson

Alleged Employer: Corporate Transit of America (settled)

Insurer: N/A

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 13, 2011, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued June 13, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 8^{\text {th }} \qquad$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: April 9, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? No
7. Did alleged 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 the time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was struck from behind in a rear-end collision accident, while driving and making deliveries for Corporate Transit of America.
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: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability benefits: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Ronald Thompson

1. Value necessary medical aid not furnished by alleged employer/insurer? $\ 5,870.00
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: N/A
4. Method wages computation: N/A

1. Amount of compensation payable:

Alleged Employer previously settled its risk of liability in this case

1. Second Injury Fund liability:

Claim denied as Claimant failed to meet his burden of proof in this matter $\ 0.00

TOTAL: $\mathbf{\$ 0 . 0 0}$

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.

Employee: Ronald Thompson

Dependents: N/A

Employer: (Alleged) Corporate Transit of America

Additional Party: Second Injury Fund

Insurer: None

Injury No.: 08-121001

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On February 15, 2011, Ronald Thompson appeared in person, pro se (without an attorney), for a hearing for a final award on his claim against the Second Injury Fund. The alleged Employer, Corporate Transit of America, which is apparently uninsured, was not present or represented at the hearing since it had previously settled its risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorney General Michael T. Finneran. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about April 9, 2008, Ronald Thompson (Claimant) sustained an accidental injury.

2) Venue is proper in the City of St. Louis.

3) The alleged Employer received proper notice.

4) The Claim was filed within the time prescribed by the law.

1) Was there an employee/employer relationship under the statute between Claimant and Corporate Transit of America on the date of injury?

2) Did the accident arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to his accident on April 9, 2008?

4) What is the appropriate average weekly wage and rates of compensation for this accident?

5) Is Claimant entitled to the payment of past medical expenses in the stipulated amount of $\ 5,870.00 ?

6) What is the nature and extent of Claimant's permanent partial disability attributable to this accident?

7) What is the liability of the Second Injury Fund, primarily for uninsured medical benefits, but also for any other benefits which Claimant may be entitled to receive from the Fund?

The following exhibits were admitted into evidence:

A. Notice of Pendency of Class and Collective Action from the United States District Court of the Northern District of Illinois

B. Medical bills from Christian Hospital, Dr. William R. Humphrey II, D.C., Memorial Hospital and Dr. Shawahin of Healthcare Physicians of Southern Illinois, PC

I. Stipulation for Compromise Settlement in Injury Number 08-121001 (Date of Injury of April 9, 2008) between Claimant and alleged Employer

II. Agreement and Equipment Lease between Claimant and alleged Employer

Note: Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on February 15, 2011.

Claimant offered Exhibit A into evidence. Exhibit A is a document from the United States District Court of the Northern District of Illinois showing the terms of a proposed settlement of a class action lawsuit. It was offered to show that individuals characterized as independent contractors should have been considered as employees and should have been compensated for things such as a lunch hour, lunch breaks and other items. The Second Injury Fund objected that it was not relevant and lacked foundation. The objection is $\boldsymbol{O V E R R U L E D}$ and Exhibit A is admitted into evidence in this case.

Based on a comprehensive review of the evidence, including the testimony from Claimant, the medical bills, the Stipulation for Compromise Settlement between Claimant and the alleged Employer in this case, and the other documentary evidence offered by the parties, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant testified that he began working for Corporate Transit of America in 2006. His job involved picking up and delivering mail on a certain route at a certain time on an established schedule. Claimant noted that when he first started, he never signed an agreement. It was only when he began the established route, which is the subject of this case, that he signed the referenced agreement. Claimant's schedule in 2008 required him to make two trips on Monday, and one trip Tuesday through Friday, to various banks. Claimant testified that Jennings Station was his last stop before he would proceed to Illinois to make the final drop-off.

2) Claimant was paid a flat monthly fee of $\ 993.60, regardless of how many hours he worked, for his assigned route. He did also receive some extra money for expenses for mileage and reimbursement. Claimant noted that he could run extra routes, if, for instance, someone did not show up. He did not sign a specific agreement before running these additional routes. Therefore, he noted that he was able to generate more income by running the additional routes. He noted that each route paid a different amount of money. When he first started with Corporate Transit of America in 2006, he ran a route from St. Louis to Springfield, Illinois that paid approximately $\ 20,000.00 a year.

3) Claimant identified the Agreement and Equipment Lease (Exhibit SIF II) as the contract between him and Corporate Transit of America. He agreed that it was his signature on the last page. In paragraph six of the contract, it is clear that the parties seek to enter into an independent contractor arrangement. In that paragraph, it states that, "Corporation is interested only in the results to be achieved by Independent Contractor, not as to the means whereby they are accomplished, and the conduct and control of the business will lie solely with Independent Contractor." In that paragraph, it also explicitly states that the independent contractor is not an employee of the corporation and it contains an acknowledgment by the independent contractor of a list of benefits, including workers' compensation benefits, which corporation will not provide to the independent contractor. The contract also included paragraphs requiring the independent contractor to have certain equipment, competent and reliable personnel, including a driver, and auto liability insurance for the vehicle used pursuant to this contract. Finally, the contract contained an indemnification provision, requiring the independent contractor to indemnify and hold the corporation harmless from any claims, suits or losses incurred because of an injury to a person, including drivers or helpers.

4) Upon reviewing the contract on cross-examination, Claimant agreed that, according to paragraph six, the parties intended to enter into an independent contractor relationship. He agreed that he was paid a gross amount depending on the routes that he undertook for Corporate Transit of America. He was responsible for supplying the vehicle, gas, sufficient insurance on the vehicle and the maintenance of the vehicle. He agreed that,

pursuant to the contract, he was allowed to hire other people to perform the route services, if he so chose, and then he was responsible for paying them out of the contract amount he received for the given route. Claimant acknowledged that he never had state or federal taxes withheld from his pay by Corporate Transit of America. He received no sick or vacation pay or benefits, and, in fact, he received no benefits at all from Corporate Transit of America. Claimant acknowledged that there could be deductions from the contract amount for any leased items, but Claimant admitted that he never leased any items or equipment from Corporate Transit of America while he provided services for them. He provided everything himself that he needed to perform the duties in the contract. Claimant also admitted knowledge of the indemnification provision in the contract, as described above. Claimant further agreed that he could have controlled several routes and provided the cars, drivers, etc. to perform those routes, but he never entertained that idea because he said, "That would increase my liability."

5) Claimant testified that on April 8, 2008 [sic], between three and four o'clock in the afternoon, he was travelling south on Highway 367 headed to Jennings Stati