Allen Cleghorn v. Sunshine Home Improvements

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No. 15-086586

**Employee:** Allen Cleghorn

**Employer:** Sunshine Home Improvements

**Insurer:** Travelers Property Casualty Company of America

**Employer:** Done-Rite Home Improvement

**Insurer:** None

**Alleged Employer:** Welcome Home Exteriors, LLC

**Alleged Insurer:** Missouri Employers Mutual Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 allowing 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 with this supplemental opinion.

We note there is no evidence in the record that either Sunshine Home Improvements or Done-Rite Home Improvement hired or paid Welcome Home Interiors, LLC, to perform any work. Employee Allen Cleghorn performed work for both entities solely in his individual capacity. Under these circumstances, the administrative law judge correctly concluded that, because employee's immediate employer Done-Rite is uninsured, employer Sunshine Home Improvements is secondarily liable for employee's October 20, 2015, work injury as a statutory employer pursuant to § 287.040.1 RSMo.

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

The award and decision of Administrative Law Judge Lawrence G. Rebman, issued March 2, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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.

**Injury No. 15-086586**

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Given at Jefferson City, State of Missouri this **16th** day of August 2018.

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**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**John J. Larsen, Jr., Chairman**

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**SEPARATE CONCURRING OPINION FILED**

Reid K. Forrester, Member

**Curtis E. Chick, Jr., Member**

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**Attest:**

**Secretary**

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**Signature**

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**Date:**

Employee: Allen Cleghorn

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I would, affirm the administrative law judge's award as written.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Allen Cleghorn

Injury No. 15-086586

**Employee:** Allen Cleghorn

**Employer:** Welcome Home Exteriors, LLC

**Insurer:** Missouri Employers Mutual Insurance Co.

**Employer:** Done-Rite Home Improvement

**Insurer:** None

**Employer:** Sunshine Home Improvements

**Insurer:** Travelers Property Casualty Co. of America

**Additional Party:** N/A

**Hearing Date:** January 12, 2018

Checked by: LGR/drl

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: October 20, 2015

1. State location where accident occurred or occupational disease was contracted: Blue Springs, Jackson County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes, Mr. Cleghorn was in the employ of Welcome Home Exteriors, Done-Rite Home Improvement, and Sunshine Home Improvement, LLC.

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Allen Cleghorn

Injury No. 15-086586

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Fell from an elevated position while on a ladder

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Right lower extremity (160 week level), right shoulder (232 week level), and low back (400 week level)

1. Nature and extent of any permanent disability: 15% to the right lower extremity (160 week level), 25% to the right shoulder (232 week level), and 10% to the body as a whole (400 week level)

1. Period of temporary total disability: October 21, 2015 through February 14, 2016

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? $0

1. Value necessary medical aid not furnished by employer/insurer? 5,713.20

1. Employee's average weekly wages: 750.00

1. Weekly compensation rate: 500.03 for temporary total disability. 464.58 per permanent partial disability

1. Method wages computation: By testimony of Employee

COMPENSATION PAYABLE

Medical Already Incurred and owed: 5,713.20

Temporary Total Disability owed: 8,355.50

Permanent Partial Disability: 56,678.76

Total Award: 70,747.46

Second Injury Fund liability: N/A None

1. Future requirements awarded: None

The compensation awarded to the claimant shall be subject to a twenty-five percent (25%) lien in favor of Michael J. Haight, Attorney, for necessary legal services plus expenses.

Employee: Allen Cleghorn

Injury No. 15-086586

Employer: Welcome Home Exteriors, LLC

Insurer: Missouri Employers Mutual Insurance Co.

Employer: Done-Rite Home Improvement

Insurer: None

Employer: Sunshine Home Improvements

Insurer: Travelers Property Casualty Co. of America

Additional Party: N/A

Hearing Date: January 12, 2018

Checked by: LGR/drl

On January 12, 2018, employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Allen Cleghorn, appeared in person and with counsel, Michael Haight. The employer, Sunshine Home Improvement, and its insurer, Travelers Property Casualty, appeared through its counsel, Randall Schroer. The employer, Welcome Home, and its insurer Missouri Employers Mutual, appeared through its counsel, Danielle Augustine. The employer Done-Rite Home Improvement was not insured and was not represented by counsel. The Second Injury Fund was not a party to the case.

The parties stipulated that:

1. On or about October 20, 2015 ("the injury date"), Sunshine Home Improvements ("Sunshine") was an employer working subject to Missouri's Workers' Compensation law with its liability fully insured by Travelers Insurance;
2. Allen Cleghorn suffered accidental injuries on the injury date while in Blue Springs, Jackson County, Missouri;
3. At the time of said accident, Allen Cleghorn was performing work on a job that Sunshine had contracted to perform for the property owner;
4. Allen Cleghorn filed his claim against Sunshine within the time allowed by law;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Allen Cleghorn

Injury No. 15-086586

1. Allen Cleghorn was hired by Jesse Klee, owner of Done-Rite Home Improvement ("Done-Rite"), to provide services on the date of loss at the work site in issue;

1. Jesse Klee and Done-Rite Home Improvement did not have Missouri workers' compensation coverage on the injury date;

1. Allen Cleghorn is the managing member of Welcome Home Exteriors, LLC ("Welcome Home");

1. On the injury date, Welcome Home Exteriors, LLC was insured by Missouri Employers Mutual Insurance;

1. Allen Cleghorn is shown to have excluded himself from coverage under said insurance policy and was not covered by it on the injury date;

1. Allen Cleghorn incurred medical expenses in the amount of $5,713.20 for reasonable and necessary medical treatment for injuries suffered in this accident;

1. Allen Cleghorn was temporarily and totally disabled from October 21, 2015 through February 14, 2016.

ISSUES

The parties requested the Division to determine:

1. Whether Sunshine qualifies as a statutory employer of Allen Cleghorn;

1. Whether timely notice of the accident was provided to Sunshine;

1. The applicable average weekly wage; and

1. The nature and extent of permanent partial disability.

EXHIBITS

Allen Cleghorn testified on his own behalf and submitted the following exhibit which was admitted into evidence without objection:

Exhibit A - Independent Medical Evaluation Report of Dr. William O. Hopkins and Curriculum Vitae

Sunshine did not present any witnesses to testify and presented the following exhibit which was admitted into evidence without objection:

Exhibit 1 - Missouri Employers Mutual Insurance Workers' Compensation Policy

Based on the above exhibits and the testimony of Mr. Cleghorn, I make the following findings:

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Allen Cleghorn

Injury No. 15-086586

Mr. Allen Cleghorn testified that he has performed carpentry work and window installation for more than 30 years in the Kansas City area. He has performed this work both through his own company, Welcome Home Exteriors, LLC, and as side jobs when hired by other individuals.

Done-Rite Home Improvement, owned by Jesse Klee, is another company that performs work through similar arrangements as those made by Welcome Home. Mr. Cleghorn testified that he would sometimes work for Done-Rite when work was not available through Welcome Home. He would be paid in cash by Jesse Klee on behalf of Done-Rite. Mr. Cleghorn testified that he would not declare his wages paid by Done-Rite as revenue earned by or through Welcome Home. He further testified that he would routinely be paid 250 per day by Done-Rite and has been paid as much as 300 per day in the past.

On the date of injury, Mr. Cleghorn was performing work on a job that was contracted by Sunshine Home Improvements. The evidence indicates that Sunshine had contracted with Done-Rite to perform some or all of the work it had agreed to complete. Jesse Klee of Done-Rite had arranged for Mr. Cleghorn to perform the work with him as he had done in the past. Neither Mr. Klee or Mr. Cleghorn were direct employees of Sunshine on the date of injury.

On the date of the accident, Welcome Home Exteriors, LLC had a workers' compensation policy issued by Missouri Employers Mutual (MEM) on June 16, 2015 with a policy period of June 17, 2015 to June 17, 2016 and policy number of MEM 2012831-01. (See Emloyer/Insurer's Ex. 1.) This policy covered the date of accident. The workers' compensation policy has a Partners, Officers and Others Exclusion Endorsement (WC 00 03 08). The insured is identified on the declarations page of the policy and within the endorsement as "Allen Cleghorn DBA Welcome Home Exteriors, LLC." As stipulated at the hearing and as indicated in the subject endorsement, Allen Cleghorn excluded himself from coverage under said insurance policy and was not covered by it on the alleged date of accident.

On October 20, 2015, Mr. Cleghorn was working on a ladder between 15 and 20 feet up the side of a building. The ladder shifted causing his right leg and right arm to slip through the ladder and he fell to the ground. Mr. Cleghorn felt immediate pain in his right shoulder and low back, and subsequently felt pain in his right leg. Mr. Cleghorn reported the accident and his injuries to the owner of Sunshine the following day by telephone.

A subsequent medical evaluation and treatment confirmed that he had fractured his right fibula with dama