Jason Johnston v. ABC Seamless Siding & Windows, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-135219

Employee: Jason E. Johnston

Employer: ABC Seamless Siding \& Windows, Inc.

Insurer: Uninsured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 18, 2012, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued April 18, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $27^{\text {th }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Jason E. Johnston

Injury No. 07-135219

Dependents: N/A

Employer: ABC Seamless Siding \& Windows, Inc.

Insurer: N/A (Uninsured Employer)

Additional Party: N/A

Hearing Date: February 15, 2012

Checked by: LTW

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? N/A
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: June 21, 2007
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? No
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While engaged in employment with the Employer, and while Employee was on a ladder installing gable vents, Employee lost his footing and fell to the ground. As a consequence of this work incident Employee sustained an injury to his left wrist.
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: Left Wrist
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Jason E. Johnston

1. Value necessary medical aid not furnished by employer/insurer? N/A
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: N/A (The Second Amended Claim for Compensation is denied on grounds that the claim was not filed within the statute of limitations period.)
2. Second Injury Fund liability: N/A

TOTAL: NONE

1. Future requirements awarded: None

Employee: Jason E. Johnston

Injury No. 07-135219

Dependents: N/A

Employer: ABC Seamless Siding \& Windows, Inc.

Insurer: N/A (Uninsured Employer)

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on February 15, 2012. The evidentiary record was left open for 30 days in order to afford the parties opportunity to submit additional evidence, resulting in the record being closed on March 16, 2012. Further, 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 March 26, 2012.

The claimant and alleged employee, Jason E. Johnston, appeared personally and through his attorney, Randy Alberhasky, Esq. The alleged employer, ABC Seamless Siding and Windows, Inc., appeared through its attorney, Ryan E. Murphy, Esq.

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

(1) The alleged accident of June 21, 2007, occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(2) ABC Seamless Siding \& Windows, Inc. was a business operating in Missouri on or about June 21, 2007, and at that time was not insured under Chapter 287, RSMo.

(3) Temporary disability benefits were not provided to the claimant (alleged employee, Jason E. Johnston).

(4) The alleged employer, ABC Seamless Siding \& Windows, Inc., has not provided any medical treatment to the claimant (alleged employee, Jason E. Johnston).

The issues to be resolved by hearing include:

(1) Whether the alleged employer, ABC Seamless Siding \& Windows, Inc., was operating under and subject to the Missouri Workers' Compensation Law on June 21, 2007?

(2) Whether the claimant, Jason E. Johnston, was an employee of the alleged employer, ABC Seamless Siding \& Windows, Inc., on June 21, 2007?

(3) Whether the claimant, Jason E. Johnston, sustained an accident on or about June 21, 2007; and, if so, whether the accident arose out of and in the course of his employment with ABC Seamless Siding \& Windows, Inc.?

(4) Whether the claimant, Jason E. Johnston, notified the alleged employer (ABC Seamless Siding \& Windows, Inc.) of his injury as required by Section, 287.420, RSMo?

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

(6) Whether the alleged accident of June 21, 2007, caused the injuries and disabilities for which benefits are now being claimed?

(7) Whether the alleged employer, ABC Seamless Siding \& Windows, Inc., is obligated to pay for certain past medical care and expenses?

(8) Whether the claimant, Jason E. Johnston, has sustained injuries that will require additional or future medical care in order to cure and relieve the claimant from the effects of the injuries?

(9) What is the applicable compensation rate?

(10) Whether the claimant, Jason E. Johnston, is entitled to temporary total disability compensation? (The claimant, Jason E. Johnston, seeks payment of temporary total disability compensation for 21 weeks following the alleged accident of June 21, 2007.)

(11) Whether the claimant, Jason E. Johnston, sustained any permanent disability as a consequence of the alleged accident of June 21, 2007; and, if so, what is the nature and extent of the disability?

(12) Whether the alleged employer, ABC Seamless Siding \& Windows, Inc., is entitled to costs, including allowance of attorney's fees, in having to defend against the prosecution of this claim?

The claimant and alleged employee, Jason E. Johnston, testified at the hearing in support of his claim. Also, Mr. Johnston presented at the hearing of this case the testimony of two additional witnesses - Ronnie Demault and Scott Martin ${ }^{1}$. In addition, Mr. Johnston offered for admission the following exhibits:

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[^0]: ${ }^{1}$ Mr. Martin is a co-owner of the alleged employer, ABC Seamless Siding and Windows, Inc., and is thus recognized as a hostile witness.

Exhibit A Medical Records from Cox Medical Center Exhibit B Medical Records from Orthopaedic Specialists of Springfield Exhibit C Medical Records from Ozarks Medical Center Exhibit D Medical Records from TCMH Cabool Medical Clinic Exhibit E Medical Billing Records from Cox Medical Center Exhibit F......Medical Billing Records from Orthopaedic Specialists of Springfield Exhibit G Medical Billing Records from Ozarks Medical Center Exhibit H Medical Billing Records from TCMH Cabool Medical Clinic Exhibit I Medical Report of Michael B. Grillot, M.D. Exhibit J Correspondence Dated February 19, 2009 (Regarding filing of Claim for Compensation against ABC Roofing \& Contracting, LLC)

Exhibit K Division of Workers' Compensation Response to Atty. Alberhasky (Regarding Absence of a filing of First Report of Injury)

Exhibit L Correspondence Dated March 12, 2009 (Regarding Address of ABC Roofing \& Contracting, LLC)

Exhibit M Correspondence Dated March 9, 2009 (Regarding filing of First Amended Claim for Compensation against ABC Roofing \& Contracting, LLC; Stephen J. Schroff; and John R. Parker)

Exhibit N Answer of Second Injury Fund to Claim for Compensation Exhibit O... Answer of Second Injury Fund to Amended Claim for Compensation Exhibit P.....Service of First Amended Claim for Compensation by Certified Mail Exhibit Q Second Amended Claim for Compensation (filed against ABC Roofing \& Contracting, LLC; Stephen J. Schroff; and ABC Seamless Siding \& Windows, Inc.)

Exhibit R Answer of ABC Seamless Siding \& Windows, Inc. to Second Amended Claim for Compensation

Exhibit S......Motion to Dismiss Without Prejudice ABC Roofing \& Contracting, LLC; Stephen J. Schrof; and John Parker

Exhibit T Order of Dismissal for ABC Roofing \& Contracting, LLC Exhibit U Order of Dismissal for Stephen J. Schroff Exhibit V Order of Dismissal for John Parker Exhibit W Order of Dismissal for Stephen J. Schroff d/b/a ABC Roofing Exhibit X Medical Report of Michael B. Grillot, M.D. Exhibit Y Correspondence from Atty. Murphy to Atty. Alberhasky (Dated January 6, 2011)

Exhibit Z Correspondence from Atty. Alberhasky to Atty. Murphy (Dated January 27, 2011)

Exhibit AA Correspondence from Atty. Murphy to Atty. Alberhasky (Dated February 7, 2012)

Exhibit BB Correspondence from Atty. Murphy to Atty. Alberhasky (Dated February 8, 2012)

Exhibit CC Correspondence from Atty. Murphy to Atty. Alberhasky (Dated February 9, 2012)

Exhibit DD Subpoena Duces Tecum Return for ABC Seamless Siding \& Windows, Inc.

Exhibit EE Photograph of Residential Construction Site

(2513 N. Albertha, Springfield, Missouri 65803)

Exhibit FF ........................................ Photograph of Residential Construction Site

(2513 N. Albertha, Springfield, Missouri 65803)

Exhibit GG ..............Contract between ABC Seamless Siding \& Windows, Inc. \&

Residential Owner (2513 N. Albertha, Springfield, Missouri 65803)

The exhibits were received and admitted into evidence.

The alleged employer, ABC Seamless Siding and Windows, Inc., did not present any witnesses at the hearing of this case. However, the alleged employer, ABC Seamless Siding and Windows, Inc. offered for admission the following exhibits:

Exhibit 1........................Correspondence from Atty. Murphy to Atty. Alberhasky (Dated May 12, 2011)

Exhibit 2........................Correspondence from Atty. Murphy to Atty. Alberhasky (Dated June 28, 2011)

Exhibit 3..................................................................................................Not Offered

Exhibit 4....................................................Summary of Costs \& Attorney's Fees

Exhibit 5........................................ Claim for Compensation (filed Feb. 27, 2009)

Exhibit 6............ First Amended Claim for Compensation (filed March 11, 2009)

Exhibit 7...Second Amended Claim for Compensation (filed December 20, 2010)

Exhibit 8................................................................ Deposition of Jason Johnston

Exhibit 9............................................Medical Records from Cox Medical Center

Exhibit 10......................................Medical Records from Ozarks Medical Center

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Notice of Lien on Workers' Compensation Benefits - Support Obligees: Tina Kay