Michel Ziade v. First Class Medical Transportation; Quality Business Solutions, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No. 15-064339**

**Employee:** Michel Ziade, Deceased

**Dependents:**

- Kristin Ziade, Spouse

- Talia Ziade, Minor Child

**Employers:**

- First Class Medical Transportation

- Quality Business Solutions, Inc.

**Insurer:** Guarantee Insurance Company in Liquidation

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, 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 with this supplemental opinion.

**Whether Michel Ziade was an employee of Quality Business Solutions on July 28, 2015, the date of his alleged work-related accident**

We concur with the administrative law judge's finding that Quality Business Solutions, Inc. (QBS) failed to prove that it terminated the agreement between it and First Class Medical Transportation (FCMT) that made QBS a co-employer of FCMT's employees and responsible for proving workers' compensation coverage for the employees.

We specifically find that the testimony of QBS's former president David Evette that he sent a notice of termination of the agreement in a package of payroll checks to FCMT on July 15, 2015, was not credible. We note that whether or not QBS had good cause to terminate its agreement with FCMT is irrelevant to whether QBS terminated its agreement prior to employee's accident and death on July 28, 2015.

**Issues of judicial estoppel and collateral estoppel**

We consider the issues QBS raises relating to the equitable doctrines of judicial estoppel and collateral estoppel to be outside of the scope of the Division of Workers' Compensation or Commission's jurisdiction.

The Commission is an administrative agency created by statute and limited in its jurisdiction by the terms of the statute (citations omitted). It is not a court of general jurisdiction. The quasi-judicial power conferred upon an executive agency is limited to the ascertainment of facts and the application of existing law in order to resolve issues within the given area of agency expertise (citations omitted).

*Hunt v. Laclede Gas Co., 869 S.W.2d 770, 773-74.*

*MNKOI 0001634458*

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We therefore disavow the administrative law judge's affirmative findings on these issues while preserving them for potential consideration by an appellate court.

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

The award and decision of Administrative Law Judge Kenneth J. Cain, issued June 26, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

The Commission approves and affirms the administrative law judge's allowance of an 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 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Issued by Division of Workers' Compensation

Employee: Michel Ziade

Injury No. 15-064339

FINAL AWARD

Employee: Michel Ziade, Deceased

Injury No. 15-064339

Dependents: Kristin Ziade, Spouse

Talia Ziade, Minor Child

Employer: First Class Medical Transportation

Insurer: Guarantee Insurance Company in Liquidation¹

Employer: Quality Business Solutions, Inc.

Insurer: Guarantee Insurance Company in Liquidation

Hearing Date: April 18, 2019

Brief Filed: May 20, 2019²

Checked by: KJC/pd

FINDINGS OF FACT AND RULINGS OF LAW

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: July 28, 2015.

1. State location where accident occurred or occupational disease was contracted: Kansas City, Wyandotte County, Kansas; contract of hire, Lee's Summit, Jackson County, Missouri

¹ On January 25, 2017, Christopher McCurdy entered his appearance as the attorney for Guarantee Insurance Company. On December 19, 2017, Mr. McCurdy on behalf of "Quality Business Solutions d/b/a First Class Medical Transportation and Guarantee Insurance Company" filed a motion to stay the proceedings due to the liquidation. Prior to the hearing on April 19, 2019, the parties were asked about the stay. Neither stated that the stay remained in place. Mr. McCurdy also noted on the record that the legal counsel for the Missouri Division of Workers' Compensation had advised him on February 15, 2019, that the Missouri Insurance Guaranty Association (MIGA), had indicated that due to the large deductible in the insurance policy ($250,000), that MIGA would not be able to handle the claim until 75 percent of the deductible had been met.

² The dependents filed a brief on May 20, 2019. Neither Quality Business Solutions nor First Class Medical Transportation filed a brief in the case.

Issued by Division of Workers' Compensation

Employee: Michel Ziade

Injury No. 15-064339

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

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.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: The deceased employee, who did business development, among his other duties for his employer, First Class Medical Transportation, was sent by his employer to deliver gift cards to his employer's clients at the Kansas University Rehabilitation facility. While at the rehab facility, the deceased employee also assisted other employees in loading a large man in a wheelchair into a company van. Immediately, thereafter, a co-employee shot and killed the deceased employee in a dispute over the co-employee's pay.

1. Did accident or occupational disease cause death? Yes. Date of death: July 28, 2015.

1. Part(s) of body injured by accident or occupational disease: Body as a whole (death).

1. Nature and extent of any permanent disability: Death.

1. Employee's average weekly wages: 1,000.00 per week.

1. Weekly compensation rate: 666.67 per week.

1. Method wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: None

Death benefits: $666.67 per week (See additional findings of fact and rulings of law).

TOTAL: Undetermined.

1. Future requirements awarded: See additional findings of fact and rulings of law.

Said payments to begin as of July 29, 2015 and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Mr. Thomas Stein.

Issued by Division of Workers' Compensation

Employee: Michel Ziade

Injury No. 15-064339

**Employee:** Michel Ziade, Deceased

**Dependents:**

- Kristin Ziade, Spouse

- Talia Ziade, Child

**Employer:** First Class Medical Transportation

**Insurer:** Guarantee Insurance Company in Liquidation

**Employer:** Quality Business Solutions, Inc.

**Insurer:** Guarantee Insurance Company in Liquidation

**Hearing Date:** April 18, 2019

**Checked by:** KJC/pd

Mr. Michel Ziade was an employee of First Class Medical Transportation (FCMT) on July 28, 2015. On January 8, 2015, FCMT had entered into a Client Services Agreement with Quality Business Solutions, Inc. (QBS) making QBS a joint employer. QBS, on the terms of the agreement, was responsible for providing workers' compensation insurance coverage for FCMT's employees.

On July 28, 2015, Willie Parker, an employee of FCMT, murdered Michel. The Client Services Agreement between FCMT and QBS entered into on January 8, 2015, had a one-year term. QBS, however, argued that it had terminated the agreement prior to July 28, 2015, the date of Michel's murder.

Michel was survived by his widow, Ms. Kristin Ziade, (hereinafter referred to as Claimant), date of birth July 1, 1972, and his dependent daughter, Talia Ziade, date of birth November 11, 2009. Prior to the hearing, Claimant and QBS entered into various admissions and stipulations. The remaining issues were as follows:

1. Whether Michel Ziade was an employee of QBS on July 28, 2015;
2. Whether Mr. Ziade sustained an accident arising out of and in the course and scope of his alleged employment with QBS on July 28, 2015;
3. Whether Claimant remarried after Mr. Ziade's death;
4. Liability of the alleged employer, QBS, for death benefits to the widow and minor child;
5. Whether judicial estoppel is appropriate in the case;
6. Whether collateral estoppel is appropriate in the case; and
7. Liability of QBS for the $5,000 burial allowance as provided in the statute.

Issued by Division of Workers' Compensation

Employee: Michel Ziade

Injury No. 15-064339

At the hearing, Claimant testified that she was the widow of Michel Ziade. She testified that she had not remarried after Michel's death. She stated that one child, Talia Ziade, was born of her marriage to Michel.

Claimant testified that she now owned Express Medical Associates, which provided wheelchair and stretcher transportation services. She stated that she changed the company's name to Express Medical Associates from FCMT after Michel's death due to the bad publicity associated with its original name.

Claimant testified that she started FCMT in 2010. She stated that she was the president and 100 percent owner of the company. She stated that Michel worked for FCMT. She stated that she did not know if Michel was a corporate officer.

Claimant testified that FCMT had 20 employees in July 2015. She identified as Exhibit C the Client Services Agreement between FCMT and QBS, making QBS a co-employer of FCMT's employees. She stated that she entered into the agreement because it was a workers' compensation policy. She stated that Michel handled the negotiations and asked her to sign it. She indicated that she had no conversations with QBS about the Client Services Agreement, either before or after Michel's death.

Claimant testified that one of Michel's duties was business development. She stated that Michel was murdered on Tuesday, July 28, 2015, at 12:03 p.m. She stated that she sent him on that day to the KU Rehabilitation Center to do business development. She stated that he was going to give out gift cards to their clients in the facility.

Claimant testified that Michel also did the payroll for the company. She stated that on pay weeks Michel would enter the payroll on Tuesday or Wednesday mornings. She stated that the payroll had to be wired from her company to QBS. She stated that Michel would have wired the payroll records to QBS on Wednesday July 29, 2015. She stated that QBS would have then processed the payroll checks out of her company's account with QBS.

Claimant testified that due to Michel's death, FCMT did not transfer money to QBS for the payroll. She denied that QBS had terminated the Client Services Agreement prior to Michel's death on July 28, 2015. She argued that the only termination of the Client Services Agreement let