Fausto Franco-Lopez v. Jose Martinez

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-135580

Employee: Fausto Franco-Lopez

Employer: Jose Martinez

Insurer: Travelers Indemnity Company (Alleged)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, heard the parties' arguments, and considered the whole record, we find 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, we affirm the award and decision of the administrative law judge with this supplemental opinion.

On page six of her award, in the eleventh numbered paragraph, the administrative law judge states:

Claimant testified that he was in Columbia, Missouri, when Mr. Martinez called him regarding the Kansas project. Claimant did not provide details regarding the phone call, nor did he testify regarding where Mr. Martinez was when he called claimant.

We have carefully reviewed the transcript of the hearing. At no time during that hearing did employee testify that he received a phone call from Mr. Martinez in Columbia, Missouri, about the Kansas project. Accordingly, we do not adopt the foregoing finding, nor the administrative law judge's comment about employee's failure to provide details about any such phone call. Likewise, we must disclaim the administrative law judge's recitation of this erroneous factual finding throughout her analysis and conclusions of law.

Because we otherwise agree with the administrative law judge's findings, analysis, and conclusions, and in particular her determination that employee failed to meet his burden of proving Missouri jurisdiction in this matter, we affirm the award denying employee's claim for lack of jurisdiction under § 287.110 RSMo.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Vicky Ruth, issued September 27, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 20^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPININION FILED

Curtis E. Chick, Jr., Member

Attest:

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the administrative law judge's award denying benefits is in error, and should be reversed.

Employee worked for the employer, Jose Martinez, on numerous roofing and construction jobs in the past. Employee worked on a project-by-project basis. Employer never required employee to fill out an application, sign any documents, or undergo any of the other formal trappings of initiating an employment relationship. Instead, employer informed employee when he had a job, and instructed employee where to go and what to do to begin the work.

In November 2007, employee agreed to work for employer on a roofing job in Lawrence, Kansas. For two or three weeks before the Lawrence job began, employee was unemployed and living in Columbia, where he and the employer shared a residence. Employee testified that he started working for employer for the Lawrence job in Columbia. Employee testified that to begin the Lawrence job, he bought materials for the job in Columbia on November 15, 2007. I find employee's testimony credible and find that employee started working for employer for the Lawrence job on November 15, 2007, in Columbia, Missouri, by going to buy materials.

Section 287.110 RSMo provides, in relevant part, as follows:

1. This chapter shall apply to all injuries received and occupational diseases contracted in this state, regardless of where the contract of employment was made, and also to all injuries received and occupational diseases contracted outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide, and also to all injuries received and occupational diseases contracted outside of this state where the employee's employment was principally localized in this state within thirteen calendar weeks of the injury or diagnosis of the occupational disease.

"[T]he issue of where an employment contract is concluded is one of fact, the claimant having the burden of proof and persuasion on the question." Redden v. Dan Redden Co., 859 S.W.2d 207, 209 (Mo. App. 1993). "As a rule, the place where the contract is made is considered to be the place where the offer is accepted or where the last act necessary to complete the contract is performed." Krusen v. Maverick Transp., 208 S.W.3d 339, 342-343 (Mo. App. 2006).

Employee's employment relationship with employer was not the product of any formal process involving applications, interviews, or the like. I have credited employee's uncontested testimony and found that the way he started working for employer for the Lawrence job was by purchasing materials in Columbia using the employer's credit card on or about November 15, 2007. I find that the last act necessary to complete the employment contract was employee's starting work by purchasing those materials. I conclude, therefore, that employee and employer entered a contract of employment in Missouri, and that jurisdiction in Missouri is proper under § 287.110.

On November 26, 2007, while working for employer on the Lawrence job, employee slipped on a piece of plywood and fell off a roof and broke his left arm and pelvis. Employee suffered a displaced, comminuted, intra-articular fracture of the distal radius as well as the distal ulna, a non-displaced but comminuted fracture of the sacrum, and fractures of the left inferior pubic ramus. Dr. Schlafly opined that the work injury caused employee to suffer a 35\% permanent partial disability of the left upper extremity measured at the 222 -week level, and a 15 % permanent partial disability of the body as a whole referable to the pelvis.

Dr. Cantrell, on the other hand, opined that the work injury caused employee to suffer a 9\% permanent partial disability of the body as a whole referable to the multiple pelvic and sacral fractures, and a 13\% permanent partial disability of the left upper extremity at the level of the wrist.

Employee continues to experience pain in his left arm that he rates at a 5 on a scale from 1 to 10; the pain increases to an 8 out of 10 when the weather is cold. Employee's left arm surgeries resulted in a one inch scar on the top of the left arm, a $3 / 4$ inch scar on the top of the hand, and another scar on the wrist that is less than half an inch long. Employee is unable to do much lifting with the left hand and arm, and thinks he can lift about ten pounds. Employee sometimes has pain in his hip when he moves.

At the hearing before the administrative law judge, the parties were able to stipulate that employee's average weekly wage at the time of the injury was $\ 450.00, and that the appropriate rate for permanent partial disability benefits is $\ 300.00 per week. I find that employee sustained a 12 % permanent partial disability of the body as a whole referable to the pelvic and sacral fractures, and a 25 % permanent partial disability of the left upper extremity measured at the 222-week level.

I would reverse the award of the administrative law judge and enter an award holding employer liable for permanent partial disability benefits. Because the majority has determined otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: Fausto Franco-Lopez

Injury No. 07-135580

Dependents: N/A

Before the

Employer: Jose Martinez

DIVISION OF WORKERS' COMPENSATION

Additional Party: N/A

Department of Labor and Industrial

Relations of Missouri

Innurer: Travelers Indemnity Company (alleged)

Jefferson City, Missouri

Hearing Date: June 18, 2012

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? See Award.
4. Date of accident or onset of occupational disease: November 26, 2007.
5. State location where accident occurred or occupational disease was contracted: Lawrence, Kansas.
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? N/A.
9. Was claim for compensation filed within 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 fell off a roof, landing on the ground.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Left arm and body as a whole.
14. Nature and extent of any permanent disability: N/A.
15. Compensation paid to-date for temporary disability: N/A.
16. Value necessary medical aid paid to date by employer/insurer? N/A.
17. Value necessary medical aid not furnished by employer/insurer? N/A.

Employee: Fausto Franco-Lopez

1. Employee's average weekly wages: N/A.
2. Weekly compensation rate: N/A.
3. Method of wages computation: N/A.

1. Amount of compensation payable from employer: None.
2. Second Injury Fund liability: N/A.
3. Future medical awarded: N/A.

Employee: Fausto Franco-Lopez

Injury No: 07-135580

Dependents: N/A

Employer: Jose Martinez

Additional Party: N/A

Insurer: Travelers Insurance Company (alleged)

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On June 18, 2012, the parties appeared for a final award hearing. Fausto Franco Lopez, the claimant, appeared and was represented by attorney Brian Stokes. Jose Martinez, the employer, did not appear. Attorney David Ware appeared on behalf of Travelers Insurance Company, the alleged insurer. Claimant testified in person at the hearing. Dr. Bruce Schlafly and Dr. Russell Cantrell testified by deposition. Claimant and the insurer submitted briefs on July 16, 2012. With the permission of the Administrative Law Judge, the insurer submitted a reply brief on July 27, 2012, and the record closed at that time.

The parties stipulated to the following:

1. On or about November 11, 2007, Fausto Franco-Lopez, the claimant, sustained an injury by accident.
2. The accident occurred in Lawrence, Kansas.
3. Notice is not an issue.
4. A Claim for Compensation was timely filed.
5. Temporary total disability (TTD) benefits were paid to claimant in the amount of $\ 9,924.59; the parties, however, dispute whether the TTD benefits were paid pursuant to Missouri law or pursuant to Kansas law.
6. Although the insurer provided medical aid in the amount of $\ 28,226.04, the parties dispute whether the medical aid was provided pursuant to Missouri or Kansas law.
7. Counsel for claimant requests an attorney's fee of 25 %.

The parties agreed that the following issues were to be resolved in this proceeding:

1. Jurisdiction.
2. Whether the employer was insured by the insurer for purposes of Missouri's Workers' Compensation liability.

1. Average weekly wage and compensation rate.
2. Nature and extent of permanent partial disability.

On behalf of the claimant, the following exhibits were entered into evidence ${ }^{1}$ :

Exhibit A Deposition of Dr. Bruce Schlafly.

Exhibit B Copies of temporary total disability checks issued by Travelers.

Exhibit C Audit letter from Travelers to Jose Martinez, dated 1/09/08.

Exhibit D Medical records from Dr.