Christopher Lowe v. Kelly Cattle Company, Inc. d/b/a Wright County Livestock Auction Sani-Clean System, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-076473

Employee: Christopher Lowe

Employer: Kelly Cattle Company, Inc. d/b/a Wright County Livestock Auction Sani-Clean System, LLC

Ben Kelly

Nathan Kelly

Insurer: Michigan Millers Mutual Insurance Company (for Kelly Cattle Company, Inc.)

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 $\S 287.480$ 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated January 3, 2012, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued January 3, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $19^{\text {th }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Christopher Lowe

Injury No. 08-076473

Dependents: N/A

Employer: Kelly Cattle Company, Inc. d/b/a Wright County Livestock Auction

Sani-Clean System, LLC

Ben Kelly

Nathan Kelly

Insurer: Michigan Millers Mutual Insurance Company (for Kelly Cattle Company, Inc.)

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

Hearing Date: October 20, 2011

Checked by: LTW

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: The alleged accident occurred on July 22, 2008
5. State location where accident occurred or occupational disease was contracted: The alleged accident occurred in Willow Springs, MO.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes, as to Sani-Clean System, LLC; No, as to Kelly Cattle Company, Inc. d/b/a Wright County Livestock Auction; No, as to Ben Kelly; No, as to Nathan Kelly
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? Yes, as to Kelly Cattle Company, Inc. d/b/a Wright County Livestock Auction; No, as to Sani-Clean System, LLC; No, as to Ben Kelly; No, as to Nathan Kelly
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
12. Did accident or occupational disease cause death? N/A 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: None

1. Value necessary medical aid paid to date by employer/insurer? N/A
2. Value necessary medical aid not furnished by employer/insurer? N/A
3. Employee's average weekly wages: N/A
4. Weekly compensation rate: N/A
5. Method wages computation: N/A

1. Amount of compensation payable: None

Unpaid medical expenses: N/A

Weeks of temporary total disability (or temporary partial disability): N/A

Weeks of permanent partial disability from Employer: N/A

Weeks of disfigurement from Employer: N/A

1. Second Injury Fund liability: N/A

TOTAL: None

1. Future requirements awarded: No

Employee: Christopher Lowe

Injury No. 08-076473

Dependents: N/A

Employer: Kelly Cattle Company, Inc. d/b/a Wright County Livestock Auction

Sani-Clean System, LLC

Ben Kelly

Nathan Kelly

Insurer: Michigan Millers Mutual Insurance Company (for Kelly Cattle Company, Inc.)

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 20, 2011. 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 21, 2011.

The claimant, Christopher Lowe, appeared personally and through his attorney, Randy Charles Alberhasky, Esq. The alleged employer Kelly Cattle Company, Inc. d/b/a Wright County Livestock Auction (hereinafter "Kelly Cattle") and its Insurer appeared through their attorney, William D. Powell, Esq. The alleged employer Sani-Clean System, LLC (hereinafter "SaniClean") appeared by its attorney, Travis Elliott, Esq. The alleged Employers Nathan Kelly and Ben Kelly appeared in person and likewise by their attorney Travis Elliott, Esq. The Second Injury Fund appeared by its attorney, Susan Colburn, Assistant Attorney General.

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

(1) On or about July 22, 2008, Sani-Clean was a business not insured under Chapter 287, RSMo. (Sani-Clean contends it was not subject to the requirements of Chapter 287, RSMo.)

(2) On the alleged injury date of July 22, 2008, Christopher Lowe was an employee of Sani-Clean.

(3) On or about July 22, 2008, Kelly Cattle was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Michigan Millers Mutual Insurance Company.

(4) The alleged accident of July 22, 2008, allegedly occurred in Willow Springs, Missouri. The above-referenced employment was principally localized in Missouri. The parties agree to venue lying in Greene County, Missouri, and venue is proper.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) Temporary disability compensation has not been provided to the claimant.

(7) The alleged employers and/or insurer have not provided medical care to the claimant.

The issues to be resolved by hearing include:

(1) Whether the alleged employer Sani-Clean was an employer operating under and subject to the Missouri Workers' Compensation Law on July 22, 2008?

(2) Whether the alleged employer Ben Kelly was an employer operating under and subject to the Missouri Workers' Compensation Law on July 22, 2008? (As to this issue the claimant seeks to pierce the corporate veil of Sani-Clean and/or Kelly Cattle and hold Ben Kelly personally liable.)

(3) Whether the alleged employer, Nathan Kelly was an employer operating under and subject to the Missouri Workers' Compensation Law on July 22, 2008? (As to this issue the claimant seeks to pierce the corporate veil of Sani-Clean and/or Kelly Cattle and hold Nathan Kelly personally liable.)

(4) Whether the claimant was an employee of Kelly Cattle on July 22, 2008, and was operating under and subject to the Missouri Workers' Compensation Law?

(5) Whether the claimant was an employee of Sani-Clean on July 22, 2008, and was operating under and subject to the Missouri Workers' Compensation Law?

(6) Whether the claimant was an employee of Ben Kelly on July 22, 2008, and was operating under and subject to the Missouri Workers' Compensation Law?

(7) Whether the claimant was an employee of Nathan Kelly on July 22, 2008, and was operating under and subject to the Missouri Workers' Compensation Law?

(8) Whether the claimant sustained an accident on or about July 22, 2008; and, if so, whether the accident arose out of and in the course of employment with each of the alleged employers?

(9) Whether the alleged employee gave the alleged employer(s) proper notice of the injury, as required by Section 287.420, RSMo?

(10) Whether the alleged accident of July 22, 2008, caused the injuries and disabilities for which benefits are now being claimed?

(11) Whether the alleged employer(s) and insurer are obligated to pay for certain past medical care and expenses?

(12) Whether the claimant has sustained injuries that will require additional or future medical care in order to cure and relieve the claimant of the effects of the injuries?

(13) What is the applicable compensation rate?

(14) Whether the claimant is entitled to temporary disability benefits?

(15) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of past medical care and expenses pursuant to Section 287.220, RSMo, premised on a finding that one or more of the alleged employer(s) is not insured under Chapter 287, RSMo?

(16) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for additional or future medical care, pursuant to Section 287.220, RSMo, premised on a finding that one or more of the alleged employer(s) is not insured under Chapter 287, RSMo?

(17) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is entitled to reimbursement against one or more of the alleged employer(s) for payment of medical care and expenses, pursuant to Section 287.220, RSMo., premised on a finding that said alleged employer(s) is not insured under Chapter 287, RSMo?

(18) Whether the medical condition for which the claimant seeks benefits was caused by an idiopathic condition?

(19) Whether the Department of Social Services is entitled to payment on its medical services lien?

(20) Whether the accident of July 22, 2008, was the prevailing factor for the cause of the claimant's medical condition and disability for which he may have sustained and seeks benefits?

The employee, Christopher Lowe testified at the hearing in support of his claim. The employee presented no other witnesses. In addition, the employee offered for admission the following exhibits:

A. Cabool Medical Clinic-TCMH, 19 pages bills and records certified 8/7/2009

B. Ferrell-Duncan Clinic, 10 pages certified 7/8/2009

C. Kuwait Clinic records, 2 pages

D. Orthopaedic Specialist of Springfield, 30 pages certified 7/13/2009

E. Ozark Family Health Care, 2 pages certified 10/25/2009

F. Physical Therapy Specialist Clinic, 208 pages certified 10/22/2008

G. Physical Therapy Specialist Clinic, 226 pages certified 7/15/2009

H. Texas County Memorial Hospital, 73 pages certified 10/10/2008

I. Texas County Memorial Hospital, 24 pages certified 7/13/2009

J. Cabool Medical Clinic-TCMH, 6 pages certified 7/11/2011 \$308.00

K. Texas County Memorial Hospital, 2 pages certified 7/8/2009 \$2,476.85

L. Claim 9/8/2008

M. Answer, Second Injury Fund 9/15/2008

N. Letter to insurer advising in default, 4/7/2009

O. Answer, Employer/Insurer (Kelly Cattle Co., Inc.) 4/17/2009

P. Answer, Employer/Insurer (Sani-Clean System LLC, Ben and Nathan Kelly) 10/01/2009

Q. Disclosure of medical records, 6/22/2009

R. RSMo. § 287-210 letter, 6/30/2009

S. Disclosure of medical records, 8/12/2009

T. RSMo. § 287.210 letter, 9/24/2009

U. Disclosure of medical records, 10/29/2009

V. Disclosure of medical records, 1/21/2011

W. RSMo. § 287.210 letter, 3/8/2011

X. RSMo. § 287.210 letter, 5/10/2011

Y. Disclosure of records, 7/12/2011

Y2. Pay check stub of Employee

Z. Dr. Truett Swaim deposition taken May 16, 2011 with exhibits

1. IME report dated 5/5/2009 \& CV
2. IME addendum report dated $8 / 20 / 2009$
3. IME addendum report 5/9/2011

AA. Deposition of Benjamin G. Kelly taken July 23, 2010 with exhibits

1. First Amended Notice to Take Deposition
2. Documents: Lease Labor Agreement 6/23/2009, Chris Lowe's

Application for Employment, 2007 form W-4 of Chris Lowe, three

quarterly contribution and wage reports, second, third and fourth quarters 2008.

BB. Deposition of Nathan Kelly taken July 23, 2010 with exhibits

1. First Amended Notice to Take Deposition
2. Quarterly contribution and wage report detail, second qua