Randy Brookman v. Silkey Trucking, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 14-026571

**Employee:** Randy Brookman

**Employer:** Silkey Trucking, Inc.

**Insurer:** Uninsured

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090, RSMo, the Commission reverses the award and decision of the administrative law judge.

At the hearing before the administrative law judge on April 25, 2018, the parties stipulated that on February 13, 2014, Randy Brookman (employee) sustained an accident arising out of and in the course of his employment with Silkey Trucking, Inc. (employer). Employee sustained injuries to his left shoulder and cervical spine due to the accident. Employer had proper notice of the accident, but was uninsured and was not an authorized self-insurer for the purpose of the Missouri Workers' Compensation Law. Employee's injuries were medically and causally related to his work with employer.

Parties further stipulated that employee's average weekly wage was 313.88 and that a compensation rate of 209.25 would be proper. Also, if compensation is payable, temporary total disability would be owed for March 10, 2014 through January 15, 2015, which was the date of maximum medical improvement.

Parties asked the administrative law judge to resolve the following issues: (1) whether employer had sufficient employees and was subject to and covered by the Missouri Workers' Compensation Law as of February 13, 2014; (2) whether employer was liable for past medical expenses in the amount of $16,513.49; (3) whether employer was liable for temporary total disability benefits; and (4) the nature and extent of employee's permanent partial disability.

The administrative law judge concluded that employer only had four employees on the date of injury, February 13, 2014, and, therefore, was not an employer for the purposes of the Missouri Workers' Compensation Law.

Employee filed a timely application for review alleging the administrative law judge erred: (1) in finding that employer only had four employees on the date of injury, February 13, 2014; and (2) in finding that employer was not an employer for the purposes of the Missouri Workers' Compensation Law. Employee requests in his brief that the Commission award past paid medical expenses, temporary total disability benefits, and permanent total disability benefits from employer.

Injury No.: 14-026571

Employee: Randy Brookman

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For the reasons set forth below, we reverse the award and decision of the administrative law judge.

**Findings of Fact**

Employee worked as a truck driver for employer. Employee had a high school education and performed some college work. *Transcript*, p. 331.

Jeff Silkey owned and operated employer since around 1996. Over the years, employer had various employees and, at times, workers' compensation insurance. On the date of injury, employer did not have workers' compensation insurance.

Employer paid its employees weekly and tracked payments using weekly payroll summaries. The payroll summaries described payment for work already performed. According to the February 14, 2014 payroll summary, employer employed the following individuals: employee, Thomas Reed, Mr. Silkey, and Jerry Skaggs. The February 21, 2014 payroll summary listed a fifth employee: Richard (Rick) Wambolt.

Mr. Wambolt worked for employer in 2013 through September 13, 2013. He was not paid for work again until February 21, 2014. However, employee saw Mr. Wambolt in February 2014, prior to the date of injury, waiting for a load. Mr. Silkey also referenced Mr. Wambolt on February 13, 2014, in an email communication to employee. Specifically, Mr. Silkey told employee to take a certain trailer, informing employee that Mr. Wambolt could wait for a different trailer. We find employee's testimony credible that Mr. Wambolt performed services for employer as of the date of injury.

Later that day, February 13, 2014, employee injured himself while stepping out of a truck. The step had been removed temporarily in order to do some repairs. Employee, expecting the step to be there, started to fall. To stop his fall, employee grabbed the top of the door frame with his left hand and the steering wheel with his right hand. Employee felt pain in his shoulders at the time of the incident. Later that day, employee also noticed pain in his neck.

On March 7, 2014, employee ran a truck into a wall while trying to maneuver his truck in an underground loading area. He was not able to turn the steering wheel with his left arm while he shifted with his right. Employee stopped working for employer on March 10, 2014.

Employee saw Dr. Scott McMurray on March 11, 2014. Dr. McMurray ordered an MRI of employee's left shoulder, which was performed on March 24, 2014. After reviewing the MRI results, Dr. McMurray recommended surgery on the left shoulder, which he performed on June 30, 2014.

Employee participated in physical therapy from July 2, 2014 through August 29, 2014. Dr. McMurray released employee to full work duty on January 15, 2015. Employee still had discomfort in his left shoulder. Employee was unable to work from March 10, 2014.

Injury No.: 14-026571

Employee: Randy Brookman

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through January 15, 2015. Though he was released to work, employee did not return to work at that time.

On June 3, 2015, at the request of employee's attorney, Dr. Mitchell C. Mullins performed an independent medical examination of employee. At that time, employee stated that he had not returned to work since March 7, 2014. Employee complained of constant pain in both shoulders and in his cervical spine. The more difficult tasks for employee included reaching out with his left hand (such as pushing something away), or turning his head to the left, right, up, or down.

Employee had pre-existing injuries and surgeries to his lumbar spine, his left knee, his right knee, and right ankle. Employee also had an anterior cervical discectomy and fusion in 2006 at C5-6 and a right shoulder rotator cuff tear and repair in 2004.

At the independent medical evaluation, employee reported that he could not walk long distances; he had difficulty climbing stairs; and he could mow grass, but only using a self-propelled mower. Employee reported difficulty kneeling, bending, squatting, and getting up from the ground.

Dr. Mitchell opined that the February 13, 2014 work injury was the prevailing factor causing employee's left shoulder injuries and exacerbating employee's pre-existing cervical spine injury. Dr. Mitchell further found that employee's injuries constituted a hindrance to employment and to re-employment. Regarding the primary injury, Dr. Mitchell rated a 45% permanent partial disability rated at the left shoulder and a 7% of the body as a whole permanent partial disability due to the cervical spine injury.

Dr. Mitchell also rated employee's prior injuries as follows: 30% permanent partial disability rated at the cervical spine; 25% permanent partial disability rated at the right shoulder; 20% permanent partial disability rated at the left knee; 25% permanent partial disability rated at the right knee; and 20% permanent partial disability rated at the right ankle.

Dr. Mitchell concluded that employee "is permanently and totally disabled as a result of [the] combination of the present injury listed above as well as pre-existing injuries. I do not believe he will be up to operate or compete in an active labor market." Transcript, p. 343. Dr. Mitchell further opined that employee was "temporarily, totally disabled from March 7, 2014 until he reached maximal medical improvement, [on] January 15, 2015." Transcript, p. 343.

Dr. Mitchell placed employee under the following restrictions: lifting: 20 lbs at the waist only; standing and/or walking: less than two hours in an 8-hour day; pushing and pulling: limited in upper and lower extremities; climbing ladders, etc.: never; climbing stairs: occasionally; balancing: occasionally; kneeling: never; crouching: occasionally; crawling: never; stooping: occasionally; reaching overhead: limited, no over chest lift with left shoulder; handling and fingering: occasionally.

Injury No.: 14-026571

Employee: Randy Brookman

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Employer did not advance any alternative ratings. Employer did not depose Dr. Mitchell. We adopt the findings of Dr. Mitchell, including his ratings, as credible and persuasive.

Because employer did not have workers' compensation insurance, the Department of Veterans Affairs paid $16,513.49 in medical bills for employee, with the understanding that employee will reimburse this amount.

**Conclusions of Law**

**Silkey Trucking, Inc., is an Employer**

Pursuant to §§ 287.020.1 and 030.1(3), RSMo, Silkey Trucking, Inc. is an employer for workers' compensation purposes.

**Section 287.020.1, RSMo, provides, in pertinent part:**

1. The word "employee" as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations.

**Section 287.030.1(3), RSMo, provides, in pertinent part:**

(3) Any of the above-defined employers must have five or more employees to be deemed an employer for the purposes of this chapter.

Pursuant to these definitions, we conclude that Mr. Wambolt was an employee on the date of injury, February 13, 2014. Therefore, employer had five employees in its service, including Mr. Wambolt on the date of the injury. We conclude, therefore, that Silkey Trucking, Inc., meets the definition of an employer pursuant to the Workers' Compensation Law.

**Nature and Extent of Permanent Disability and Past Medical Expenses**

As parties have already stipulated medical causation, the only other issues to resolve are the nature and extent of permanent disability and liability for past medical bills.

Employee's average weekly wage was 313.88, resulting in a compensation rate of 209.25. We find that compensation is payable and that employer is liable for temporary total disability benefits in the amount of $209.25 per week from March 10, 2014 through January 15, 2015, which was the date of maximum medical improvement.

We have found that employee sustained a 45% permanent partial disability rated at the left shoulder and a 7% of the body as a whole permanent partial disability due to a cervical spine injury. Pursuant to § 287.190, RSMo, the left shoulder equates to 232

**Employee:** Randy Brookman

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weeks, 45% of which equals 104.4 weeks. The cervical spine injury equates to 28 weeks. At a rate of 209.25 per week, the extent of the benefits due for the left shoulder is 21,845.70; for the cervical spine injury the extent of benefits is $5,859.00. We find that employer is liable for these amounts.

We also find that employer is liable for past medical expenses in the amount of $16,513.49.

We reverse the award and decision of the administrative law judge. We conclude that Silkey Trucking, Inc., is an employer pursuant to the Workers' Compensation Law. As employee suffered a compensable injury by accident arising out of and in the course of his employment, employer is liable for temporary total disability benefits in the amount of 209.25 per week from March 10, 2014 through January 15, 2015; 21,845.70 for permanent partial disability benefits regarding employee's left shoulder injury; $5,859.00 for permanent partial disability benefits regarding employee's injury to the cervical spine; and $16,513.49 for past medical expenses.

This award is subject to a lien in favor of Matt Uhrig, Attorney at Law, in the amount of 25% for necessary legal services rendered.

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

The award and decision of Administrative Law Judge Victorine R. Mahon, issued June 26, 2018, is attached solely for reference.

Given at Jefferson City, State of Missouri, this **B** day of February 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Pamela M. Hofmann / UK

Secretary

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? No.
4. Date of accident or onset of occupational disease: February 13, 2014.
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene County, Missouri.
6. Was above employee in employ of above employer at the 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? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Uninsured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant fell while exiting a semi-truck.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Upper extremities, back and neck.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Randy W. Brookman

Injury No.: 14-026571

1. Nature and extent of any permanent disability: Not applicable.

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

1. Value necessary medical aid paid to date by employer/insurer? None.

1. Value necessary medical aid not furnished by employer/insurer? 26,289.70.

1. Employee's average weekly wages: 313.88.

1. Weekly compensation rate: $209.25.

1. Method wages computation: By agreement.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: None.

1. Second Injury Fund liability: No.

1. Future Requirements of the Award: None.

On April 25, 2018, Claimant Randy W. Brookman appeared in person and with his attorney, Matt Uhrig, for a hearing for a final award. Attorney Aaron P. Lyons represented Employer Silkey Trucking, Inc. Claimant previously dismissed the Treasurer of Missouri as Custodian of the Second Injury Fund. The parties agreed on the following facts and identified the issues that were in dispute:

1. On February 13, 2014, Claimant sustained an accident arising out of and in the course of his employment with Silkey Trucking, Inc.
2. As a result of the accident, Claimant injured his left shoulder and cervical spine.
3. On February 13, 2014, Silkey Trucking, Inc., was uninsured and was not an authorized selfinsurer for purposes of Missouri Workers' Compensation.
4. Employer had proper notice of Claimant's accident.
5. Claimant's claim was filed within the time allowed by law.
6. Claimant's average weekly wage was $\ 313.88, yielding a compensation rate of $\ 209.25 for all purposes.
7. Claimant's injuries as medically and causally related to his work for Employer.
8. Employer paid no medical aid and no temporary disability benefits.
9. If found compensable, temporary total disability would be owed from March 10, 2014 to January 15,2015 , which is the date Claimant was released by his physician.
10. The Missouri Division of Workers' Compensation has jurisdiction and the parties agree to venue in Springfield, Greene County, Missouri.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Randy W. Brookman

Injury No.: 14-026571

1. How many persons did Silkey Trucking, Inc., employ on date of injury?
2. Were Employer and Claimant subject to and covered by the Missouri Workers' Compensation Act on the date of the accident?
3. Is Employer liable for 16,513.49 in past medical bills?
4. Is Employer liable for 9,386.36 in temporary total disability?
5. If benefits are awarded, is it subject to a Veterans' Administration lien for medical treatment provided?
6. If benefits are awarded, what is the nature and extent of any permanent partial disability?

Claimant offered the following exhibits which were admitted:

- Exhibit 1 Deposition of Jeff Silkey - Registration Report of Silkey Trucking, Inc.

- Exhibit 2 Deposition of Jeff Silkey - W-2 from Silkey to Brookman

- Exhibit 3 Deposition of Jeff Silkey - Occupational accident policy

- Exhibit 4 Deposition of Jeff Silkey - Brookman Employment file

- Exhibit 5 Deposition of Jeff Silkey - Driver daily log for February 13, 2014

- Exhibit 6 Deposition of Jeff Silkey - New Century Ins. Group Brookman policy

- Exhibit 7 Deposition of Jeff Silkey - New Century Ins. Group Disclosure & Release

- Exhibit 8 Deposition of Jeff Silkey - Insurance documents

- Exhibit 9 Deposition of Jeff Silkey - Letter September 10, 2014, to Silkey from Lori Baker

- Exhibit 10 Deposition of Jeff Silkey

- Exhibit 11 Amended Notice of Submitting Medical Report into Evidence

- Exhibit 12 Report of Dr. Mitchell Mullins

- Exhibit 13 C.V. of Dr. Mitchell Mullins

- Exhibit 14 Notice of Service of Business Records

- Exhibit 15 Medical Bills - Mercy Health Center

- Exhibit 16 Medical Bills - Mercy Clinic, Inc.

- Exhibit 17 Medical Records - Dept. of Veterans Affairs

- Exhibit 18 Medical Records - Mercy Hospital Springfield

- Exhibit 19 Email February 13, 2014 - Mr. Brookman to Mr. Silkey

- Exhibit 20 Email February 13, 2014 - Mr. Silkey to Mr. Brookman

- Exhibit 21 Email March 3, 1014 - Mr. Silkey to Mr. Brookman

- Exhibit 22 Emails regarding injury

- Exhibit 23 Emails regarding medical treatment

- Exhibit 24 Pay Stubs

¹ There are marks or highlights on the exhibits, but the administrative law judge made no alteration to any exhibit. Any objections not addressed at the hearing or in this Award are now overruled.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Randy W. Brookman

Injury No.: 14-026571

Employer offered the following exhibits which were admitted:

- Exhibit A W-2

- Exhibit B Payroll Summaries for February 7, 2014

- Exhibit C Payroll Summaries for February 14, 2014

- Exhibit D Payroll Summaries for February 21, 2014

- Exhibit E Quarterly Payroll Report

- Exhibit F Deposition of Kerri Cuff

- Exhibit G Deposition of Randy Brookman

On February 13, 2014, Randy Brookman (Claimant) worked as a truck driver for Silkey Trucking, Inc. (Employer). On that same date, while exiting the cab of a semi-truck, Claimant fell when he missed a step that had been removed by a third party. The parties agree that the accident and resulting injuries to Claimant's left shoulder and cervical spine occurred within the course and scope of Claimant's employment with Silkey Trucking, Inc. Jeff Silkey, who was Claimant's supervisor, had notice of the accident immediately after its occurrence.

Employer Silkey Trucking, Inc., owned its own trailers. In February of 2014, Silkey Trucking, Inc. did not have workers' compensation insurance. Mr. Silkey did not believe he was required to carry workers' compensation insurance. He also did not believe his company had the requisite number of employees. Rather, Jeff Silkey purchased occupational accident policies for each of the employees. On the date of Claimant's work accident, Mr. Silkey believed that Randy Brookman was covered under a 2013-2014 occupational accident insurance policy that had been provided by Silkey Trucking, Inc.

Kerri Cuff has been the accountant for Silkey Trucking, Inc., since 1996. She regularly figures the company's payroll taxes and issues W-2's and 1099's after receiving information from Jeff Silkey on each driver's pay. Ms. Cuff testified credibly both by deposition and live at the hearing. Her testimony established that Silkey Trucking, Inc., reported having had five employees for the tax years 2013 and 2014, and each of the employees would have received a W-2. The testimonies of Ms. Cuff and Jeff Silkey revealed, however, that only four of these employees were on the payroll on February 13, 2014, which was the date of the work accident. These four individuals were Jeff Silkey, Randy Brookman, Thomas Reed, and Jerry Skaggs. Silkey Trucking, Inc., had no part-time employees. Jeff Silkey supervised these company employees.

The fifth employee - Richard Wambolt - received a W-2 as an employee of Silkey Trucking, Inc., for years 2012 and 2013; however, the last recorded payment for Richard Wambolt in 2013 was on September 13, 2013. According to the quarterly payroll summaries, Richard Wambolt did not return to work for Silkey Trucking, Inc., until February 21, 2014, which was eight days after Claimant's accident. There is no record of Mr. Wambolt working as an employee for Silkey Trucking, Inc., between September 14, 2013 and February 21, 2014. The payroll for the fourth quarter of 2013, which is October 2013 through December 2013, lists only four employees: Randy Brookman, Thomas Reed, Jimmie Silkey, and Jerry Skaggs. Mr. Wambolt does not appear on the 2013 fourth quarter payroll summary.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Randy W. Brookman

Injury No.: 14-026571

Silkey Trucking, Inc., also contracted with Donal Graham, a self-employed individual who was an owner-operator and leased his vehicle to the company. During the tax year 2014, Mr. Graham's payments were documented on a Form 1099 and not on a W-2. Ms. Cuff indicated that she received from Mr. Graham a W-9 rather than a W-4 like most employees.²

RULINGS OF LAW

Employer does not challenge that Claimant was its employee. The pivotal issue is whether Silkey Trucking, Inc., had at least five employees on the date of Claimant's work accident, February 13, 2014, so as to be deemed an employer for the purposes of the Missouri Workers' Compensation law, as prescribed in § 287.030.1(3) RSMo. Employer Silkey Trucking, Inc., concedes that there were four employees on the date of the accident. These employees include Randy Brookman, Jeff Silkey, Jerry Skaggs, and Thomas Reed. There are two other individuals whose relationship with Employer at the time of the work accident are in question.

The evidence clearly established that Donal Graham was not an employee but an independent contractor who had leased his vehicle to Silkey Trucking, Inc. Pursuant to §§ 287.040 to 287.043 RSMo, independent contractors who are owner-operators of their own trucks are not employees.

That leaves the only remaining individual, Richard Wambolt, as a possible fifth employee. Employer's testimony and payroll records clearly show Richard Wambolt's employment ended in September of 2013 and did not restart until February 21, 2014, after Claimant's work accident.

Based on the evidence³, I find and conclude that Richard Wambolt was not an employee of Silkey Trucking, Inc., on the date of the accident, February 13, 2014. Silkey Trucking, Inc., had only four employees on the date of Claimant's accident. Silkey Trucking, Inc., was not an employer for the purposes of the Missouri Workers' Compensation Act. It has no liability to Claimant under that Act. All other issues are moot. Employee is awarded no benefits.

I certify that on June 26, 2018 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

Made by:

Victorine R. Mahon

Chief Administrative Law Judge

Division of Workers' Compensation

² A W-9 is used by individuals to report a tax identification number, whereas a W-4 is provided by an employee to an employer for purposes of calculating withholdings for federal tax purposes. https://www.irs.gov/pub/irs-pdf/iw9.pdf.

³ The administrative law judge has considered all of Claimant's testimony and evidence, including the Emails referencing an individual named "Rick." Claimant believes his evidence establishes an employment relationship between Richard Wambolt and Silkey Trucking, Inc., on the date of the work accident. I find Claimant's evidence in this regard speculative and unpersuasive.