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John Cutsinger v. Area 151 Nightclub

Decision date: March 14, 201313 pages

Summary

The Commission affirmed the administrative law judge's determination that John Cutsinger was an employee rather than an independent contractor at the time of his October 1, 2010 injury, finding that the employer retained and regularly exercised control over the means and manner of his work managing lighting and sound for special events. This is a temporary award allowing workers' compensation benefits subject to further proceedings for a final award.

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Caption

TEMPORARY AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)
Employee:John Cutsinger
Employer:Area 151 Nightclub
Insurer:Advantage Workers’ Compensation
Additional Party:Treasurer of Missouri as Custodian of Second Injury Fund
This 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, read the briefs, 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 as supplemented herein.
Discussion
Employee vs. independent contractor
The parties dispute whether employee was an employee of employer or instead working as an independent contractor at the time he sustained his injuries on October 1, 2010. We agree with the administrative law judge’s analysis and ultimate determination that employee proved the existence of an employment relationship, but we wish to render some additional findings of fact that we deem pertinent to the issue.The administrative law judge found that “the [employer] did not exercise control over the manner of customizing the lighting to the fighters’ songs, but only controlled the ultimate result.” Award, page 7. We disagree, because the unrebutted evidence is to the contrary. Specifically, employee testified that, if his supervisors at employer’s nightclub were unhappy with the way in which he was managing the light and sound for special events, they could tell him what music to play, how loud or quiet to play it, and how they wanted the lights to work. Employee testified that not only did his supervisors reserve the right to exert such direct control over his work, but that they actually did so, and that this was a regular occurrence. Employer did not present any witnesses to contradict employee’s description of the work relationship. We credit employee’s unrebutted testimony.We find that employee’s supervisors at employer’s nightclub reserved the right to tell him how to do his job, and that they regularly did so. We find that such instruction included whether to play a particular song, how loud or quiet to play the music, and how to program the lights. As the administrative law judge recognized, “[t]he pivotal question in determining the existence of an employer-employee relationship is whether the employer had the right to control the means and manner of the service, as distinguished from controlling the ultimate results of the service.” Chouteau v. Netco Constr., 132 S.W.3d 328, 332 (Mo. App. 2004). Because employer retained and regularly exercised the right

to control the means and manner of employee's services, we conclude employee was not working for employer as an independent contractor on October 1, 2010, but rather as an "employee" for purposes of $\S 287.020 .1$ RSMo.

Decision

We conclude that employee was working for employer as an employee rather than an independent contractor on October 1, 2010. The award and decision of Administrative Law Judge Victorine R. Mahon, issued September 17, 2012, is affirmed and is hereby attached and incorporated to the extent it is not inconsistent with this supplemental opinion.

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

Any past due compensation shall bear interest as provided by law.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510 RSMo.

Given at Jefferson City, State of Missouri, this 14^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

TEMPORARY OR PARTIAL AWARD

Employee: John Cutsinger

Injury No. 10-082553

Dependents: N/A

Employer: Area 151 Nightclub ${ }^{1}$

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund (Open)

Insurer: Advantage Workers' Compensation/ Patriot Risk Services

Hearing Date: August 3, 2012; Record closed on August 6, 2012. Checked by: VRM/db

FINDINGS OF FACT AND RULINGS OF LAW

  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: October 1, 2010.
  5. State location where accident occurred or occupational disease was contracted: St. Robert, 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: Portable stairs at the nightclub collapsed as Claimant was walking on them.

[^0]

[^0]: ${ }^{1}$ Although the Division's records indicate that the alleged Employer is "Area 151 Nightclub and Shenanigans Pub," the parties indicate that Shenanigans Pub is a separate entity. The alleged employer in this case is simply "Area 151 Nightclub."

  1. Did accident or occupational disease cause death? No. Date of death? N/A.
  2. Part(s) of body injured by accident or occupational disease: Right foot.
  3. Nature and extent of any permanent disability: None.
  4. Compensation paid to-date for temporary disability: None.
  5. Value necessary medical aid paid to date by employer/insurer? None.
  6. Value necessary medical aid not furnished by employer/insurer? None.
  7. Employee's average weekly wages: Not in issue.
  8. Weekly compensation rate: Not in issue.
  9. Method wages computation: By stipulation.

COMPENSATION PAYABLE

  1. Amount of compensation payable: $\ 27,884.90.
  2. Second Injury Fund liability: Open.

TOTAL: $\ 27,884.90.

  1. Future requirements awarded:

Employer/Insurer shall provide Claimant with future medical care necessary to cure and relieve the effects of the work related injury.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent of all payments to Claimant in favor of the following attorney for necessary legal services rendered to Claimant: B. Michael Korte.

FINDINGS OF FACT AND RULINGS OF LAW:

Employee: John Cutsinger

Injury No. 10-082553

Dependents: N/A

Employer: Area 151 Nightclub

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund (Open)

Insurer: Advantage Workers' Compensation/ Patriot Risk Services

Hearing Date: August 3, 2012; Record closed on August 6, 2012

Checked by: VRM/db

INTRODUCTION

The undersigned Administrative Law Judge conducted a hardship hearing on August 3, 2012 in Lebanon, Missouri. John Cutsinger (Claimant) appeared in person and with his legal counsel, B. Michael Korte. Loretta Simon represented Area 151 Nightclub (Employer) and Advantage Workers' Compensation and Patriot Risk Services (Insurer). Claimant has requested a Temporary/Partial Award to direct Employer/Insurer to provide past and future medical treatment and future temporary disability benefits. Employer requests a Final Award, contending that Claimant was an independent contractor and not an employee. Upon request of Claimant, and without objection from the opposing party, the record remained open for the receipt of additional evidence consisting of one medical bill in the amount of $\ 104.00. That evidence was received timely. The medical bill was marked as Claimant's Exhibit N, received into evidence, and the record closed on August 6, 2012. Now, having reviewed all of the evidence and considered the parties' briefs, I issue this Temporary/Partial Award. The Second Injury Fund did not participate in this hearing and the Fund's liability remains open.

STIPULATIONS

The parties stipulate to the following facts:

  1. Area 151 Nightclub is a Missouri employer, fully insured with Advantage Workers' Compensation and Patriot Risk Services. Employer is subject to the Missouri Workers' Compensation Law.
  2. On October 1, 2010, Claimant sustained an injury while at Area 151 Nightclub.
  3. The injury occurred in Pulaski County. The parties stipulate that jurisdiction and venue is appropriate in Lebanon, Missouri. There is no dispute as to notice or timeliness of the Claim.
  1. Claimant's wage rate and compensation rate are not at issue. Employer/Insurer paid no temporary benefits and no medical benefits to date.
  2. If it is determined that the Claim is compensable, the parties agree that Employer would be liable for at least $\ 27,884.90 in medical expenses and for the provision of future medical aid.

ISSUES

The parties stipulate that the following issues are the sole issues for this hearing:

  1. Was Claimant an employee of Area 151 Nightclub at the time of his injury on October 1, 2010 ?
  2. If yes, did Claimant's injury arise out of and in the course of his employment?

EXHIBITS

The following exhibits were offered by Claimant and admitted:

A. Pulaski County Ambulance - records

B. Pulaski County Ambulance - bill

C. Frederick Knee Center - office note of August 24, 2011

D. Frederick Knee Center - records

E. Frederick Knee Center - bill

F. Columbia Orthopedic Group, Dr. B. Kleiber - office note of October 6, 2011

G. Columbia Orthopedic Group, Dr. B Kleiber - letter of June 14, 2012

H. Columbia Orthopedic Group, Dr. B Kleiber - bill

I. Phelps County Regional medical Center - records

J. Phelps County Regional medical Center - bill

K. Prescriptions - bills

L. Report, Dr. Aubuchon - dated December 29, 2011

M. Report, Dr. Aubuchon - dated June 28, 2012

N. Palmaris Imaging - bill of $\ 104.00

The following exhibit were offered by Employer/Insurer and admitted:

  1. 1099 Detail Report

FINDINGS OF FACT

Claimant filed a Claim for Compensation with the Missouri Division of Workers' Compensation alleging injuries to the right foot, right ankle and right lower extremity as the result of an October 1, 2010 accident that occurred on the premises of Area 151 Nightclub, where Claimant was working. The nightclub admitted that Claimant sustained an injury, but denied that Claimant was an employee and that his injury arose out of and in the course of the employment.

Area 151 Nightclub is open Thursday through Saturday from 8:00 p.m. to 1:30 a.m. On Friday and Saturday nights, a live disc jockey plays music and operates lighting for dancing. Area 151 Nightclub owns the lighting equipment and the computers that are used to sequence the lights to music. The light sequences for the disc jockey are pre-set, and take no particular skill to operate.

Multiple times throughout the year, the nightclub sponsors special events such as car shows, live music performances, and mixed martial arts (MMA) contests or fights at its entertainment complex. At the MMA fights, the nightclub used "special lighting." The nightclub called upon Claimant to be its light and sound technician. Claimant agreed to coordinate the lights for the MMA fights several times throughout the year at the rate of $\ 10.00 per hour. Claimant did not bill or send an invoice for his hours of work.

In addition to stationary lights and the two computers used to sequence music, the nightclub's equipment included an amplifier and microphones for the master of ceremonies. Claimant brought no equipment with him. Claimant had designed custom light sequences for MMA fights on the computer that were different from the standard sequences used by the disc jockey. Claimant t

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