Sergey Chudnovtsev v. BSI Constructors, Inc.; St. Louis Brick & Stone

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 14-027901

Employee: Sergey Chudnovtsev

Employer: BSI Constructors, Inc.

St. Louis Brick \& Stone

Insurer: National Fire Insurance Company of Hartford

Travelers Property Casualty Company of America

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 May 16, 2017. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued May 16, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 30th \qquad$ day of March 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? See Award
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: April 21, 2014
5. State location where accident occurred or occupational disease was contracted: City of St. Louis
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? See Award
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? See Award
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Not determined for purposes of this Award
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left shoulder, neck, right knee, and left ankle
14. Nature and extent of any permanent disability: 25 % left shoulder, 10 % BAW referable to the neck, 5 % right knee, 2.5 % left ankle
15. Compensation paid to-date for temporary disability: $\ 46,581.37
16. Value necessary medical aid paid to date by employer/insurer? $\ 85,557.48

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Not determined
3. Weekly compensation rate: $\$ 788.53 / \ 446.85
4. Method wages computation: Stipulation

1. Amount of compensation payable (see Award):

$\ 190,117.96

1. Second Injury Fund liability: No

TOTAL:

$\ 190,117.96

1. Future requirements awarded: None

Said payment to be payable and be subject to modification and review as provided by law.

As per Award, each party shall bear its own attorney's fees and expenses.

Employee: Sergey Chudnovtsev (Settled)

Injury No.: 14-027901

Dependents: N/A

Employer: BSI Constructors, Inc.;

St. Louis Brick \& Stone

Additional Party: N/A

Insurer: National Fire Ins. Co. of Hartford;

Travelers Property Casualty Comp. of America

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB:jj

On February 3, 2017, the undersigned Administrative Law Judge held a final hearing at the St. Louis office of the Division of Workers' Compensation ("Division") to resolve all outstanding issues in the matter of Sergey Chudnovtsev ("Employee"). Present on that date were attorney Randee E. Schmittdiel, representing the statutory employer, BSI Constructors, Inc. ("BSI") and its insurer National Fire Ins. Co. of Hartford ("National") (collectively referred to herein as "BSI/National"), and attorney Jaudon Godsey, who appeared on behalf of Travelers Property Casualty Comp. of America ("Travelers"), the purported insurer of Employee's direct employer St. Louis Brick \& Stone ("STL Brick"). The Division sent certified notice ${ }^{1}$, but no attorney or representative of any kind appeared on behalf of the employer STL Brick. Ms. Godsey did not represent STL Brick. The record closed March 3, 2017.

Employee and his attorney, Scott Pecher, did not participate in the February 3, 2017, hearing because his underlying claim for workers' compensation benefits had been previously settled on October 28, 2016, when this matter was initially assigned to the Honorable John K. Ottenad. Instead of forcing Employee to participate in a hearing where the only issues in dispute involved which insurance company was liable, Judge Ottenad helped the parties craft a compromise whereby BSI/National paid, as the statutory employer, and Employee accepted $\$ 69,864.83^{2}$ as full and final settlement of any and all claims he has under the Missouri Workers' Compensation Law ("Act"). Following a motion for a change of judge, the matter was transferred to the undersigned for final determination of the remaining issues.

The stipulations in this case, memorialized in Joint Exhibit 1-A ${ }^{3}, are:

1. On 4 / 21 / 14$, all parties were operating under and subject to the provisions of the Act.
2. On or about $4 / 21 / 14$, Employee sustained an accidental injury arising out of and in the course of his employment with STL Brick when he fell down some stairs while carrying a bag of concrete.

[^0]

[^0]: ${ }^{1}$ This matter had been set for final hearing in January, but the parties agreed to a continuance in order to assure STL Brick received proper notice of the hearing. The certified mail receipt was submitted as Exhibit B-7.

${ }^{2}$ See Stipulation \#9 below.

${ }^{3}$ The abridged party names have been substituted for the full names used in the Agreed Stipulation.

1. Employee provided statutory notice of his accident to STL Brick.
2. On 4/21/14, STL Brick was a subcontractor of BSI. There is a dispute whether or not STL Brick was duly insured for its workers' compensation liability by Travelers for this accidental injury. As required by the Act, RSMo 287.040, BSI/National has paid all benefits in this matter.
3. Employee timely filed his Claim for Compensation. BSI/National and Travelers timely filed their Answer to Claim for Compensation. STL Brick has not filed an Answer to Claim for Compensation or an appearance in this matter.
4. The weekly compensation rate is $\ 788.53 for temporary benefits and $\ 446.85 for permanent partial disability benefits.
5. BSI/National has paid medical expenses in the amount of $\ 85,557.48.
6. BSI/National has paid temporary total disability for 44 weeks in the amount of $\ 34,695.32.
7. BSI/National agreed to pay employee and employee agreed to accept $\ 69,864.83 representing approximately 25 % of the left shoulder, 10 % of the body as a whole referable to the neck, 5 % of the right knee, 2.5 % of the left ankle, and approximately $151 / 7 weeks of disputed temporary total disability benefits or \ 11,886.05 in full and final settlement of claims, known or unknown, under the Act for injuries allegedly incurred during the course of his employment with STL Brick on or about 4/21/14, and any results, developments or sequelae, fatal or nonfatal, allegedly resulting from the accidental injuries.
8. Employee agreed that this amount fully and finally resolves and releases any and all legal issues and claims which he currently has, may have had in the past or may have in the future against STL Brick, Travelers, and BSI/National. Employee understood that he will receive no further compensation or medical aid by reason of this accident from STL Brick, Travelers, and BSI/National.
9. Employee submits his Affidavit (Exhibit A to Joint Exhibit 1-A), in lieu of his live testimony that these stipulations and agreements are not the result of undue influence or fraud; that he fully understands his rights and benefits; and he voluntarily agrees to the terms of this Stipulation.
10. There is no preexisting disability.
11. There is no Second Injury Fund liability in this matter.

I hereby approve the terms of the settlement, to the extent the above stipulations form the basis for the settlement of Employee's claim under the Act.

The parties agreed the following are the only issues to be addressed in this Award:

1. Was STL Brick duly insured by Travelers for its workers' compensation liability on April 21, 2014, for the accidental injury sustained by Employee?
2. If so, is BSI/National entitled to full recovery and reimbursement by Travelers for all benefits paid and to be paid plus all its attorney's fees, costs and expenses?
3. If not, is BSI/National entitled to reverse judgment against STL Brick pursuant to $\S 287.040(3)$ ?
4. If not, is Travelers entitled to recover attorney's fees and costs pursuant to $\S 287.560$ ?

In addition to Joint Exhibit 1-A, the following exhibits were admitted:

B-1 Subcontract Agreement between BSI and STL Brick;

B-2 Certificate of Liability Insurance showing Travelers policy issued to STL Brick;

B-3 Certified Records regarding STL Brick from the Missouri Secretary of State;

B-4 Certified Records in St. Louis County Circuit Court, Cause No. 15SL-CC00817;

B-5 Affidavit of Terri Vangen regarding BSI/National's attorney's fees, costs and expenses ${ }^{4} through the date of 1 / 09 / 2017 in the amount of \ 69,149.13;

B-6 Travelers' responses to BSI/National's Subpoena Duces Tecum For Deposition regarding Travelers' policy and underwriting file (only relevant documents are being submitted by agreement of the parties) (pages 1-202);

B-7 Certified copy of the Division's notice and USPS tracking receipt of 2/03/2017 Hearing Notice to STL Brick.

T-1 Division's response to Travelers' Subpoena Duces Tecum For Deposition regarding the National Council on Compensation Insurance's ("NCCI") "Employers' Workers' Compensation Insurance Coverage" On-Line Verification Pages.

T-2 Certified copy of the Division's records for this Claim;

T-3 Travelers' submission of its attorney's fees, costs and expenses incurred in these hearings with BSI/National through the date of 1/09/2017 in the amount of \$5,537.50.

The outcome of this case turns on whether Employee's employer STL Brick had a valid insurance policy in place covering workers' compensation liability on April 21, 2014, the date of his accident. As an employer subject to the Act, STL Brick was obligated under $\S 287.120$ to "furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment." Furthermore, as a subcontractor of BSI, STL Brick was contractually required to obtain workers compensation insurance (Ex. B-1). Accordingly, STL Brick purchased and Travelers issued ${ }^{5}$ a workers' compensation policy for the period from 11/09/2013 to 11/09/2014, numbered UB-8D81927-4-13 ("the Policy"). The Policy was issued 12/11/2013 (Ex. B-6, p. 141), and identified the Insured as: St. Louis Brick \& Stone, Inc., 3026 Delavan Dr. ${ }^{6}$, St. Louis, MO 63121 (Ex. B-6, p. 141-42).

The business relationship between Travelers and STL Brick began in 2011, when Travelers issued a dif