Vitaliano Rodas v. The Carter Group, Inc. / Villa Bella, LLC / Aandrea Carter

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 15-078084

Employee: Vitaliano Rodas

Employer: The Carter Group, Inc.

Villa Bella, LLC

Aandrea Carter

Insurer: None

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 awarding compensation 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 (ALJ) with this supplemental opinion.

Vitaliano Rodas is sixty-five years old, has a third-grade education, and speaks virtually no English. Through an interpreter, Mr. Rodas credibly testified that Aandrea Carter hired him through her company The Carter Group, Inc. in Kansas City, Missouri. From 2008 through 2015, he performed maintenance work at Ms. Carter's multiple investment and rental properties involving carpentry, painting, roofing, and remodeling. A supervisor, Olivia Simpson, assigned his tasks each day. Employer(s) provided tools for his work, including paintbrushes, rollers, saws, carpet stretchers, nails guns, and compressors. The employee's injury on May 18, 2015, occurred while he was setting floors at Villa Bella Apartments; a rental property located in Kansas City, Kansas, operated through Villa Bella, LLC. Both The Carter Group, Inc. and Villa Bella, LLC are 100\% owned by Ms. Carter.

The employee testified he worked full-time, approximately 50-52 hours each week and that employer paid him by check every Friday. He did not retain copies of his paychecks and could not recall the name of the company that appeared on the checks because it was in English.

Employers produced time sheets showing the employee worked 45.5 hours during one week identified as $6 / 13 / 15 and 54 hours during a second week identified as 6 / 17 / 15 .{ }^{1} A third, undated time sheet, showed 9.5 hours of work on one day. { }^{2}$ Employers also produced:

- A 2014 1099-MISC form documenting The Carter Group, Inc.'s payment of $\ 900.00 to Rodas Vitaliano [sic]. ${ }^{3}$

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[^0]: ${ }^{1} Employers' Exhibits 3 and 4, Transcript 648-650.

{ }^{2} Id.

{ }^{3}$ Employers' Exhibit 7, Id. 653.

- A check from Villa Bella LLC dated June 19, 2015, payable to Rodas Vitaliano [sic] in the amount of $\$ 825.50 .{ }^{4}$

- A 2015 1099-MISC form documenting Villa Bella LLC and Aandrea Carter's payment of $\ 10,609.00 to Rodas Vitaliano [sic]. ${ }^{5}$

Employers' witness Joel Donigan testified that The Carter Group, Inc.'s payment of $\ 900.00 to employee in 2014 was "done as a loan to Villa Bella". ${ }^{6}$

Section 287.020.1, defines "employee" for purposes of the Law as "every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written..."

Section 287.110.2 provides:

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 (emphasis added).

Based on the employee's credible testimony we find he entered into a contract of hire with employer(s) in the State of Missouri. Pursuant to Section 287.110.2, the Workers' Compensation Law applies to employee's claim based on an injury sustained while performing work for employer(s) in the state of Kansas.

Section 287.420 requires an employee to give written notice of an injury within thirty days, with certain exceptions. The employee testified he provided actual notice to his supervisor, Olivia Simpson, on the date of the injury. Ms. Simpson told claimant to "do whatever you want because we don't have any kind of insurance." ${ }^{7}$ Her son took the employee to the hospital. We find the employee complied with the requirement of $\S 287.420$ by providing actual notice of his injury to employers' agent Olivia Simpson, on the date of his work accident. See Sell v. Ozarks Med. Ctr. 333 S.W. 3d 498 (Mo. App. 2011).

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[^0]: ${ }^{4} Employers' Exhibit 5, Id. 651.

{ }^{5} Employers' Exhibit 35, Transcript, 666.

{ }^{6} Id. 57.

{ }^{7}$ Id. 85.

Employers' application for review alleges error in that:

The ALJ's Ruling of Law \#2 that CLAIMANT wasn't a real estate agent demonstrates a lack of understand [sic] of 287.090.1.2, which exempts the alleged EMPLOYER, not the Claimant.

Section 287.090.1.(2) provides: "This chapter shall not apply to. . .qualified real estate agents and direct sellers as those terms are defined in § 3508 of Title 26 of United States Code (emphasis added)".

26 U.S.C. § 3508 (a) provides:

(a) For purposes of this title, in the case of services performed as a qualified real estate agent. . .

(1) the individual performing such services shall not be treated as an employee, and

(2) the person for whom such services are performed shall not be treated as an employer. (emphasis added).

We find that the ALJ properly applied 287.090.1.(2) to the employee consistent with the definition set out in 26 U.S.C. § 3508 (a)(1). The ALJ correctly found Mr. Rodas was not exempt from the Workers' Compensation Law pursuant to this section because the evidence demonstrated he is not a real estate agent.

Employers cite no precedent in support of its argument that $\S 287.090 .1 .(2)$ exempts any employer from the Missouri Workers' Compensation Law solely on the basis of the employer's status as a "qualified real estate agent".

The mandate of strict construction requires us to interpret 287.090.1.(2) in accordance with its plain language, applying the statute only to situations or parties that are fairly or clearly within its terms. Section 287.800 requires that we "construe provisions of this chapter strictly." Missouri case law informs:

"A strict construction of a statute presumes nothing that is not expressed." The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions. Allcorn v. TAP Enterprises, Inc. 277 S.W.3d 823, 828 (Mo. App. 2009) (internal citations omitted).

In our opinion, Section 287.090.1.(2) exempts an employer who is a "qualified real estate agent" from the provisions of the Workers' Compensation Law only to the extent that an employee's services relate to employer's performance of services as a qualified real estate agent. There is no evidence that employee's carpentry, painting, roofing and remodeling work related to any services Aandrea Carter performed as a real estate agent. We therefore conclude that the provisions of 287.090.1.(2) do not exempt Ms. Carter as an employer from the Missouri Workers' Compensation Law.

Employers' application for review alleges the ALJ's award is erroneous because "Claimant's expert's notice doesn't comply with 287.210 .7 as he was not made available for cross-examination". Employers' brief provides no further discussion or explanation of this argument.

Section 287.550 provides:

All proceedings before the commission or any commissioner shall be simple, informal, and summary, and without regard to the technical rules of evidence, and in accordance with section 287.800 . All such proceedings shall be according to such rules and regulations as may be adopted by the commission.

Section 287.560 provides, in pertinent part, "Any party shall be entitled to process to compel the attendance of witnesses and the production of books and papers, and at his own cost to take and use depositions in like manner as in civil cases in the circuit court."

Consistent with the requirement that all workers' compensation proceedings be "simple, informal and summary, and without regard to the technical rules of evidence," § 287.210.7 of the Workers' Compensation Law codifies an exception to the hearsay rule by permitting admission of the complete report of a treating or examining physician without other foundational evidence, subject to a party's compliance with specified procedures. Among the procedures specified in the statute are the requirements that a party give notice to the other side within sixty days of the hearing that it intends to submit a report in lieu of testimony of its medical expert and provide the other side a "reasonable opportunity" to obtain cross-examination testimony from the treating or examining physician. No additional common law rights to discovery exist in workers' compensation cases beyond those provided by statute. ${ }^{8}$ This legal proposition applies to the Commission.

Employee's attorney notified employers of his intent to use Dr. James Stuckmeyer's independent medical report as evidence at trial pursuant to 287.210 by a notice dated March 30, 2016. ${ }^{9}$ The employee produced Dr. Stuckmeyer for deposition on May 4, 2016. Dr. Stuckmeyer's May 4, 2016, deposition includes thirty-six pages of cross-examination by employers' attorney. ${ }^{10}$ When employers' counsel refused to withdraw a question

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[^0]: ${ }^{8} Lutes v. Honorable Lee B. Schaefer, 431 S.W.3d 550,553 (Mo. App. 2014).

{ }^{9} Claimant's Exhibit D, Transcript, 529-530.

{ }^{10}$ Claimant's Exhibit F, Id. 552-560.

suggesting that Dr. Stuckmeyer was acting more as employee's advocate than as a physician, employee's attorney accused him of badgering the witness, declared the deposition over, and instructed his expert to leave. Employers' attorney objected by stating, "I've got a full page of questions that I have not been able to ask and I'm going to move to strike this entire deposition testimony". ${ }^{11}$ Employee's attorney invited employers' counsel to move on to other questions but employers' attorney declined to further depose the witness.

The ALJ admitted Dr. Stuckmeyer's report, noting that the employers' attorney did not object to employee's notice within ten days, as required by 287.210.7. The ALJ admitted Dr. Stuckmeyer's deposition as evidence, overruling employers' hearsay objection. The ALJ advised the parties that he would take employers' second objection, relating to the conduct of the May 4, 2016, deposition, under advisement in deciding the weight given to Dr. Stuckmeyer's deposition testimony. ${ }^{12}$

On or about May 17, 2016, employee's counsel filed a Motion for Entry of Protective Order alleging employers' counsel was "harassing, annoying, and/or badgering Dr. Stuckmeyer with non-probative and/or irrelevant questions" during the May 4, 2016, deposition. ${ }^{13}$ Employee's motion requested that any future questioning of Dr. Stuckmeyer by employers be confined to opinions and findings in Dr. Stuckmeyer's report and medical records and that any future deposition be limited to at most fifteen minutes. Employers' attorney took no steps to conduct further cross-examina