Robin Smith v. Premium Transportation Staffing, Inc./Premium of North Carolina; Wil Trans Trucking Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 10-019420

Employee: Robin Smith

Employers: 1) Premium Transportation Staffing, Inc./Premium of North Carolina

2) Wil Trans Trucking Company

Insurer: 1) Travelers Indemnity Company of America

2) Uninsured

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

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 November 3, 2015. The award and decision of Administrative Law Judge Victorine R. Mahon, issued November 3, 2015, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this $1^{\text {st }}$ day of April 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

The undersigned Administrative Law Judge conducted a final hearing in Springfield, Missouri to determine the the claim filed by Robin Smith. Stacey Page represented Claimant. Christina Madrigal represented Premium Transportation Staffing, Inc./Premium North Carolina, and Travelers Indemnity Company of America. Wil Trans Trucking Company is uninsured. It did not participate in this hearing. The claim against the Second Injury Fund was dismissed without prejudice on January 6, 2015.

The parties stipulated to the following facts: 1. On March 17, 2010, Robin Smith (Claimant) sustained an accidental injury that arose out of and in the course of her job, although there is a dispute as to who was the employer at the time of the injury.

2 At the time of this injury, Premium Transportation Staffing, Inc./Premium of North Carolina, was a fully insured Missouri employer. Premium was insured with Travelers Indemnity Company of America. Both Claimant and Premium were subject to the Missouri Workers’ Compensation Act. 3. Wil Trans Transportation had no insurance. 4. The injury occurred out-of-state. The parties agree that venue and jurisdiction are proper in Springfield, Greene County, Missouri. 5. There is no challenge to the statute of limitations or notice. 6. Claimant’s average week wage was $\ 1,166.19, yielding at temporary total disability and permanent total disability rate of $\ 777.50, and a permanent partial disability rate of $\ 422.97.

Employee: Robin Smith

Injury No.: 10-019420

1. Premium/Travelers paid $\ 44,793.01 in temporary total disability for the following periods: March 18, 2010 to June 29, 2010, and from June 21, 2012 to April 17, 2013.
2. Premium/Travelers paid $\ 28,390.88 in medical treatment.
3. Claimant reached maximum medical improvement on April 17, 2013.
4. Premium/Travelers advanced Claimant $\ 5,000 against any permanency.
5. The claim against the Second Injury Fund was voluntarily dismissed without prejudice.

The sole issues for the hearing are as follows:

- Was Claimant an employee of Premium Transportation Staffing, Inc./Premium North Carolina at the time of her accidental injury on March 17, 2010?

- What is the nature and extent of any disability from the last injury?

- Is Claimant entitled to reimbursement of $\ 189.22 in transportation costs?

- Is Claimant entitled to reimbursement of $\ 1,857.01 for past medical treatment?

- Is Claimant entitled to future medical to cure and relieve the effects of the work injury?

- If Claimant is determined to be permanently and partially disabled, and not permanently and totally disabled, is Claimant entitled to compensation for disfigurement?

- Is Claimant's counsel entitled to a lien for legal fees on amounts awarded above the $\ 1,480.40 previously offered by Employer and its Insurer?

The parties offered the following exhibits all of which were admitted:

1. Medical Records (tabs 1 through 9)
2. Deposition - Dr. Allen Parmet (with exhibits)
3. Curriculum Vitae - Phillip Eldred
4. Vocational Report - Phillip Eldred
5. Alabama Drivers License and Social Security identification
6. Medical Bills
7. Settlement Offer (July 21, 2011)
8. Notice to Take Deposition
9. Car Rental Charges
10. Medical Records of Dr. David W. Scott (February 21, 2011)
11. Authorization of Physical Therapy (February 27, 2013)
12. Employee Handbook

A. Deposition - Robert McAlindon, M.D. (with exhibits)

B. Deposition - Marissa Howell, Vocational Rehabilitation Counselor (with exhibits)

C. Declaration of Employment Status

In additional to the above exhibits, upon the request and consent of all parties, the Administrative Law Judge created a legal file which includes the following:

- Order of Dismissal - Second Injury Fund - (January 6, 2015)

- Original and Amended Claims for Compensation

- Answers to the Original and Amended Claims for Compensation

- Report of Injury

Claimant, Robin Smith, aka Robin Oglesby McLain, is 54 years of age, having been born on September 23, 1961. She is married to Rodney McLain and is a resident of Alabama. She has no dependent children or grandchildren.

Claimant worked in the truck driving industry for more than 20 years. Before that, she worked as a cashier, a clerk, and as a seamstress. Although she attended the $12^{\text {th }}$ grade, she did not have a sufficient number of credits to graduate. She never obtained a GED. She is left hand dominant.

When Claimant first applied to drive with Wil Trans in 2009, she completed an application and a Declaration of Employment Status form. She also signed a release for employment records. She returned all of these documents to Wil Trans in Strafford, Missouri. Because of the Wil Trans identification on these documents, Claimant initially had believed that her employer was Wil Trans. Later in the hearing, however, she provided documentary evidence making it clear that her employer was Premium Transportation Staffing, Inc./Premium of North Carolina (Premium).

Once Claimant was hired as a driver to work out of the Wil Trans facility located in Strafford, Missouri, she was provided an Employee Handbook (Exhibit 12). The Employee Handbook contains a "Welcome" from Todd Packard, whom the parties agree was the CEO of Premium (Exhibit 12, p. 1). The Employee Handbook contains a "Preface" which states that the company (Premium) is "an employer, and does not function as an employment agency" and "the company assigns its employees to a variety of companies." (Exhibit 12, p. 2). Premium, in fact, assigned Claimant to work with Wil Trans. When Claimant was injured on March 17, 2010, the Wil Trans dispatcher directed Claimant to contact Premium. Thereafter, all of her medical care was approved and directed by Travelers' Indemnity Insurance Company (Insurer), which insured Premium; and not Wil Trans. The parties agree that Wil Trans had no insurance. It also was Travelers on behalf of Premium, which made the initial offe