Ronald Chilton v. Productive Staffing, Ajinomoto Windsor Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-098442

**Employee:** Ronald Chilton

**Employers:** Productive Staffing, Ajinomoto Windsor Inc.

**Insurers:** Commerce & Industry Insurance Company, Travelers Indemnity Company

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 July 12, 2018. The award and decision of Administrative Law Judge, Maureen Tilley, issued July 12, 2018, 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 **27th** day of March 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Carnegie, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Ronald Chilton

Injury No. 15-098442

Employee: Ronald Chilton

Injury No. 15-098442

Dependents: N/A

Employer: Productive Staffing and Ajinomoto Windsor Inc. (alleged employer)

Additional Party: N/A

Insurer: Commerce & Industry Ins. Co c/o AIG Claims Inc. and Travelers Indemnity Co. of America (alleged insurer)

Hearing Date: April 11, 2018

Checked by: MT/kg

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: 12/22/15

1. State location where accident occurred or occupational disease was contracted: Wayne County, MO.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did the 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.

1. Was the employer insured by above insurer? Yes.

1

Employee: Ronald Chilton

Injury No. 15-098442

1. Describe work the employee was doing and how accident occurred or occupational disease contracted: Employee's right hand was caught in an industrial dough mixer, severely mangling his hand and fingers.

1. Did accident or occupational disease cause death? No.

1. Part(s) of body injured by accident or occupational disease: Right hand and fingers.

1. Nature and extent of any permanent disability:

- 100% of the right index finger at the 45 week level;

- 35% of the right thumb at the 60 week level;

- 20% of the right long finger at the 35 week level;

- 6.25% of the right hand at the 175 week level; and

- 12.5 weeks of disfigurement.

1. Compensation paid to date for temporary disability: 4,428.71 paid by Productive Staffing; 0.00 paid by Ajinomoto Windsor.

1. Value necessary medical aid paid to date by the employer-insurer? 25,528.31 paid by Productive Staffing; 0.00 paid by Ajinomoto Windsor.

1. Value necessary medical aid not furnished by the employer-insurer? 0.00.

1. Employee's average weekly wages: 434.54 for Productive Staffing; Sufficient for the maximum rates for Ajinomoto Windsor.

1. Weekly compensation rates: $289.69 for TTD and PPD as applied to Productive Staffing.

1. Method wages computation: By consent of Employee and Productive Staffing.

1. Amount of compensation payable:

- From Productive Staffing: 27,936.98 in PPD benefits; 124.15 in unpaid TTD benefits

1. Second Injury Fund liability: N/A

1. Future requirements awarded: N/A

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Daniel Keefe

2061860372

On April 11, 2018, the employee, Ronald Chilton, appeared in person and with his attorney, Daniel Keefe, for a hearing for a final award. There were two alleged employers in this case. Productive Staffing was represented at the hearing by its attorney, Mark R. Kornblum. Ajinomoto Windsor Inc. was represented at the hearing by its attorney, Stephen H. Larson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

As between Employee and Productive Staffing, the parties stipulated to the following:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by AIG.
2. Employee was a covered employee at the time of the injury.
3. On 12/22/15, Employee sustained a compensable injury by accident arising out of and in the course and scope of his employment, injuring his right hand and fingers.
4. Employee gave Productive Staffing proper notice of his injury.
5. Claim was filed within the time prescribed by law.
6. Employee's average weekly wage was $\ 434.54, and his TTD and PPD rates are $\ 289.69.
7. Employee's injuries were caused by his accident.
8. Medical benefits in the amount of $\ 25,528.31 have been paid.
9. TTD benefits in the amount of $\ 4,428.71 have been paid, covering 16 and $2 / 7$ weeks from 12/26/15-4/18/16 by Productive Staffing, and Productive Staffing agrees to pay 3 days not previously paid, in the amount of $\ 124.15 covering a period of $3 / 7$ weeks from 12/23/15-12/25/15, inclusive, for a total liability in TTD of 16 and $5 / 7$ weeks.
10. Employee sustained 100 % PPD to his right index finger at the 45 week level; 35 % of his right thumb at the 60 week level; 20 % of the right long finger at the 35 week level; 6.25 % of the right hand at the 175 week level; and 12.5 weeks of disfigurement.

1. Whether Employer is liable for PPD benefits and disfigurement.

As between Employee and Ajinomoto Windsor Inc., the parties stipulated to the following:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Travelers Indemnity Company of America.
2. On 12/22/15, Employee sustained an injury by accident arising out of and in the course and scope of his employment.

**Injury No. 15-098442**

1. Employer received proper notice of the injury.
2. Employee's injury was caused by his 12/22/15 work accident.
3. Medical benefits in the amount of 0.00 have been paid.
4. 0.00 has been paid in TTD benefits.
5. Employee sustained 100% PPD to his right index finger at the 45 week level; 35% of his right thumb at the 60 week level; 20% of the right long finger at the 35 week level; 6.25% of the right hand at the 175 week level; and 12.5 weeks of disfigurement.

1. Whether Employee was a covered employee of Employer.
2. Whether the claim was filed within the statute of limitations.
3. Employee's average weekly wage and compensation rates.
4. Whether Employer is liable for TTD benefits from 12/23/15-4/18/16.
5. Whether Employer is liable for PPD benefits and disfigurement.

The following exhibits were offered and admitted into evidence:

1. 11/20/17 Deposition- Dr. David Volarich
2. DWC Report of Injury
3. Medical Records from Poplar Bluff Regional Medical Center
4. Medical Records from Washington University in St. Louis School of Medicine, Dr. Calfee, Barnes Jewish Hospital

I. Deposition transcript of Dr. Calfee

A. Staffing Agreement dated 3/29/16

B. Claim for Compensation

C. Answer to Claim for Compensation - Productive Staffing

D. Answer to Claim for Compensation - Ajinomoto Windsor, Inc.

E. Report of Injury

F. 8 CSR 50-2

G. DOLIR "are you covered" text

**Injury No. 15-098442**

Ronald Chilton was hired by Productive Staffing, a personnel agency, in October 2015, for a job at Windsor Foods. Employee worked sanitation at Windsor Foods. He testified that after being placed at Windsor Foods, Employee's only contact with Productive Staffing was through his paychecks, which Productive Staffing issued.

Every morning, he reported for work at Windsor Foods and his daily instructions were given by Windsor employees and supervisors.

On December 22, 2015, while walking past an auger machine, Employee reached with his right hand to knock some dough off the edge of the auger, but his sleeve was caught and pulled his right hand into the machine. When he pulled it out, he noticed he was missing his right index finger, and that there was blood everywhere. A coworker wrapped his hand for him, and he was taken to the hospital via ambulance.

Because Poplar Bluff Medical Center could not adequately deal with such an injury, Employee was transferred to Barnes-Jewish Hospital. His hand was irrigated and he was admitted for surgery.

On December 23, 2015, Dr. Ryan Calfee took Employee to surgery and performed a right hand revision amputation of his right index finger at the proximal phalanx, and an open reduction internal fixation of his right thumb proximal phalanx with K-wires. On February 9, 2016, Employee complained of persistent tingling in the tip of his thumb and phantom pain in his right index finger, prompting a fluoroscopy, which showed two of the K-wires migrating toward the ulnar side. On February 25, 2016, Dr. Calfee took Employee back to surgery and removed the two deep K-wires from his right thumb. Employee was released to return to work without restrictions on April 18, 2016, and was placed at MMI on July 5, 2016.

At the time of the injury, Employee had worked at Windsor Foods for about 8 weeks. His job duties included shoveling batter and vegetables from the floor into containers, and taking apart machines and cleaning them with high pressure washers, then reassembling them. He worked 8-12 hours a day at the Windsor plant, 6 to 7 days per week, and averaged about 50 hours each week, all of them at the Windsor plant. He had a 30-minute lunch break scheduled by Employer and two 10-minute breaks, also approved by Employer. Employer did not allow any other breaks.

Employee filed claims for compensation against Productive Staffing and Ajinomoto Windsor. The claims were received and processed by the Division of Workers' Compensation on February 8, 2016. The Division sent copies of the claim to the employers and insurers. Productive Staffing's answer was received by the Division on February 19, 2016. Windsor's answer was not received until July 18, 2016. One week before the hearing, on April 4, 2018, Employer filed an Amended Answer. The Amended Answer changed the name of Employer from Windsor Foods to Ajinomoto Windsor.

**Injury No. 15-098442**

#### Issue 1. Permanent Partial disability and disfigurement

Based on the evidence presented and of the stipulations between Employee and Productive Staffing, Employee is awarded a total of 96.4375 weeks of compensation for PPD benefits, which, at the stipulated PPD rate of 289.69, totals 27,936.98, and $124.15 for three days of unpaid TTD benefits. The total amount Productive Staffing is directed to pay Employee is $28,061.13.

**Ajinomoto Windsor**

#### Issue 1. Covered Employee

It is disputed whether Employee was a covered employee of Employer #2 Ajinomoto Windsor. It is undisputed that Employee was a covered employee of Employer #1 Productive Staffing, as all parties stipulated to their employment of Employee. It was also stipulated by all parties that Employer #1 Productive Staffing provided and paid for all necessary medical care and TTD for 16 2/7 weeks at the rate of $289.69. Of significance, there is a contract between Employer #1 Productive Staffing and Employer #2 Ajinomoto Windsor, which essentially provides that Employer #1 Productive Staffing shall provide all wages to Employee including all payroll taxes, workers' compensation and general liability insurance, unemployment insurance and additional umbrella insurance. In addition, Employer #1 Productive Staffing shall provide vacation pay and holiday pay, along with medical insurance coverage, after their employees worked a predetermined number of hours/days. The contract further provided for on-site interviews of prospective employees. Employee's testimony confirmed all of the information and terms as contained in the contract and stipulated to the average weekly wage and compensation rate asserted by Employer #1 Productive Staffing.

It is undisputed that Employee was employed by Employer #1 Productive Staffing and that all payroll, taxes, insurance and other benefits were administered by Employer #1 Productive Staffing. Employee testified that he was hired by Employer #1 Productive Staffing and their "employment" relationship was stipulated by all parties. It is also undisputed that Employee was then assigned by Employer #1 Productive Staffing to perform labor for Employer #2 Ajinomoto Windsor. Employer #1 Productive Staffing is a temporary staffing company and this is the nature of their business. The question presented is whether Employer #2 Ajinomoto is also an employer of Employee.

Employee was assigned to perform services for Employer #2 Ajinomoto Windsor, pursuant to a contract with Employer #1 Productive Staffing. Employee testified that he was assigned to work as a production assistant at the Ajinomoto Windsor facility. These facts would suggest that Employer #2 Ajinomoto Windsor was possibly a statutory employer. The test for statutory employment is codified under RSMo 287.040(1) and provides:

MNKOI 0001605088

Employee: Ronald Chilton

Injury No. 15-098442

287.040 Liability of employer — contractors, subcontractors. — 1. Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

This three-part test provides that statutory employment exists if (1) the work at the time of injury is being performed pursuant to a contract; (2) the injury occurs on or about the premises of the alleged statutory employer; and (3) the work is performed in the usual course of the alleged statutory employer's business. Fisher v Bauer Corp., 239 S.W.3d 693, 698-99 (Mo. App. E.D 2007). In the instant case, the undisputed facts support that all three parts of the statutory employment test have been met. Therefore, based on Employee's testimony and other, credible evidence, I find the Employer #2 Ajinomoto was a statutory employer of Employee pursuant to RSMo 287.040(1).

Despite finding that Employer #2 Ajinomoto Windsor was a statutory employer of Employee, this does not necessarily create liability on the part of Employer #2 Ajinomoto Windsor. RSMo 287.040 provides further guidance on the issue of liability as between an employer and statutory employer. 287.040(3) provides:

1. In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney's fees and expenses of the suit. Such recovery may be had on motion in the original proceedings. No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer.

In this case, I find that Employer #1 Productive Staffing was the immediate employer and was fully insured through Commerce & Industry Ins. c/o AIG. The evidence supports that Employer #1 Productive Staffing was the immediate, primary employer and that Employer #2 Ajinomoto Windsor was a secondary, statutory employer. Pursuant to 287.040(3), it is clear that no other employer shall be liable if Employee was insured by his immediate employer. This is precisely the situation in this case, with Employee's immediate and primary employer, Productive Staffing, being fully insured.

Employee asserts that there was "joint employment" and therefore the employers are joint and severally liable for benefits. Employee relies upon RSMo 287.130 which provides:

If the injury or death occurs while the employee is in the joint service of two or more employers, their liability shall be joint and several, and the employee may hold any or all of such employers. As between themselves such employers shall

**Injury No. 15-098442**

have contribution from each other in the proportion of their several liability for the wages of such employee but nothing in this chapter shall prevent such employers from making a different distribution of their proportionate contributions as between themselves.

Joint employment occurs when a single employee, under contract with two employers, and under simultaneous control of both, performs services for both employers and the services provided are the same or closely related to that of the other. *Shurvington v Cavendar Drywall*, 36 S.W.3rd 432, 436-37 (Mo. App. W.D. 2001). The facts of the instant case do not support joint employment. Employee had an 'employment contract' with Employer #1 Productive Staffing, which included administration of payroll, taxes, insurance and benefits. There is no evidence of such an 'employment contract' with Employer #2 Ajinomoto Windsor. While there was a staffing contract between the two employers, this statutory section mandates that Employee have a contract with both employers. Also, there is no persuasive evidence of simultaneous control. Employee testified that he reported to Employer #2 Ajinomoto Windsor each day with no required reporting or checking-in with Employer #1 Productive Staffing. Employer #1 Productive Staffing was essentially a passive recruiting agency with no evidence that they maintained an active or direct interest in the manner and means whereby Employee performed his work for Employer #2 Ajinomoto Windsor. Additionally, the evidence does not support that Employee provided "services" for both employers and that those "services" are the same or closely related to each other. Arguably, Employee performed no services for Employer #1 Productive Staffing, other than agreeing to go where he was assigned, as they are a temporary staffing agency. Employee performed services as a production assistant for Employer #2 Ajinomoto Windsor where he maintained machinery and performed heavy lifting. It cannot be said that these are the same or similar services. The evidence does not support 'joint employment', rather the evidence supports primary employment with the immediate employer and statutory employment with the secondary employer. RSMo 287.040(3) governs this situation and mandates that only the immediate employer is liable if fully insured. Accordingly, I find that Employer #2 Ajinomoto Windsor is a secondary, statutory employer pursuant to 287.040(1), though they do not have any liability as Employer #1 Productive Staffing is the immediate, primary employer and they were fully insured, pursuant to 287.040(3).

Based on this finding, I find that the claim against Ajinomoto Windsor is denied. Based on this denial, the other issues regarding Ajinomoto Windsor are moot and therefore shall not be ruled upon.

Daniel Keefe, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

I certify that on $\frac{\text { Qubel }}{2018}$ 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. By $\qquad$


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