Claimant had worked with Derek Mulvaney about a year when the Monett City Hall renovation project began. Claimant credibly said Mulvaney had at times arranged for transportation. Mulvaney provided the tools, and told Claimant where to work and what work to perform. Claimant had performed a variety of jobs for Mulvaney including roofing, framing and metal work. There is no evidence that Claimant had any particular or unique skill. Mulvaney paid Claimant by the hour, not by the job. When Mulvaney turned in his bills for the work performed on the City Hall renovation project, it included the work performed by Claimant. In 2017, when Mulvaney sent Claimant to work on the City Hall project, Claimant understood he was to prep walls for the hanging of sheet rock. The job required the use of a pass load gun which Claimant did not own. Claimant used the load gun owned by a co-worker who also was assigned to the project by Mulvaney. Claimant was told if he had any questions regarding the project, he could contact Jerry Dierker, who was the City Councilman who unlocked and locked the facility each day. If any
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Tommy Patrick
Injury No. 16-056896
construction materials were needed to complete the job, all workers were instructed to go to Meeks' Lumber and put the supplies on the account of the City of Monett. Mr. Mulvaney admitted in deposition that when Claimant arrived on the job each day, he did not report to the City of Monett, he just reported to Mr. Mulvaney (Ex. 4, p. 39). Mr. Mulvaney also admitted he did not have workers' compensation insurance for the job.
On March 17, 2016, after about a week on the City Hall job, Claimant was hanging "hat channels" in preparation for the drywall. He realized that one of the channels needed a small piece of wood. As he was using a saw to cut the piece of wood, the saw blade cut his left hand. The Monett Fire Department responded to the accident as the station was next to Monett City Hall. Claimant traveled by ambulance to Cox South Hospital in Springfield, Missouri, where the examining physician advised Claimant that surgery needed to be performed immediately due to the disruption of the tendons in his fingers. When Claimant called Mulvaney to inform him of the needed procedure, Mulvaney admitted he did not have workers' compensation insurance. The hospital then referred Claimant to an orthopedic specialist who performed the hand surgery five days later on March 22, 2016. This was still an emergency situation.
Medical costs for the surgery and related treatment totaled $42,007.13. Ozark Anesthesia Associates filed an Application for Direct Payment for $1,128.00 for treatment in conjunction with the work injury. Claimant said he, personally, authorized the treatment on his hand.
Claimant said Mulvaney is still in the construction business with multiple employees working for him. Claimant believed he was an employee of Mulvaney until he was "fired" after the injury, at which time he received his final check from Mulvaney. Mulvaney had paid Claimant regularly with a check from Mulvaney Construction LLC. Mulvaney testified by deposition that he believed Claimant was an independent contractor. Mulvaney made no withholdings from Claimant's checks. He provided Claimant with a Form 1099. Claimant never received a paycheck or a W-2 or W-4 from the City of Monett, Jerry Dierker, or Dierker's construction company.
Current Condition
Claimant has returned to the construction business for a different employer. He has trouble performing his tasks. He cannot completely close his left hand into a fist. He has lost strength in his left hand. While he is right-handed, he must use his left hand to hold nails and screws in place, but he cannot discern different nails and screws by feel, which he could do in the past. Claimant's left hand is sensitive to cold weather. He uses gloves and relies on a warmer in the glove of his left hand to provide pain relief. Claimant takes Ibuprofen, Tylenol, heat and ice to help alleviate the constant pain and burning in his left hand. The pain in his hand wakes him up at night. He has difficulty picking up his grandchild because he cannot feel how much pressure he is using. The undersigned ALJ assessed at six weeks disfigurement for the left hand.
Independent Medical Opinion
Dr. David Volarich
Dr. David Volarich examined Claimant on May 15, 2017, and found that Claimant had diminished range of motion with regard to his left middle, ring and small fingers. The most severely diminished range of motion was with the left middle finger that lacked almost 50 percent of the range of motion at the distal phalangeal joint. Claimant also suffered from diminished pinprick sensation in his left long finger and his left ring
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Tommy Patrick
Injury No. 16-056896
finger. Dr. Volarich also found that the grip in Claimant's non-dominant left hand was substantially less than what he would have expected, which he found was due to the work injury.
Dr. Volarich assigned a disability rating of 50 percent to the proximal interphalangeal joint of the left long finger, 15 percent of the left ring finger at the proximal interphalangeal joint, and 7.5 percent at the proximal interphalangeal joint. These ratings took into consideration any loss of sensation, mobility, and strength in the fingers. Dr. Volarich also assigned a disability rating of 20 percent of the left hand at the 175-week level due to a diminished grip strength and loss of dexterity.
Dr. Ted Lennard
On behalf of the City of Monett, Dr. Ted Lennard examined Claimant on September 12, 2018. Dr. Lennard noted that Claimant had undergone surgical repair of both the ulnar and radial digital nerves on his left long finger. Dr. Lennard recorded that Claimant suffers from constant pain and numbness in Claimant's left long finger. The pain was accompanied with severe burning and tingling pain with repetitive use. Claimant was unable to make a closed fist. Claimant's problems were made worse with cold temperatures, repetitive use of his left hand, vibrations, and gripping. Claimant's symptoms were lessened by resting his left hand and taking Ibuprofen.
Dr. Lennard opined that the treatment that Claimant had received was reasonable and medically necessary. Dr. Lennard issued permanent partial disability ratings of 25 percent at the 35-week level for the left long finger, 10 percent at the 35-week level for the left ring finger and 5 percent at the 22-week level for the left small finger. He did not include a separate rating at the hand.
Additional Findings
Claimant testified live and I was able to assess his demeanor. His trial and deposition testimonies are consistent. His trial testimony also is corroborated by the medical records. I find him credible. I also find both physicians credible, although I find that all of the disability should be rated at the level of the hand, given the loss of the grip strength, diminished grip strength, and multiple fingers involved.
RULINGS OF LAW
Employment and Liability
Missouri's Worker's Compensation Law defines an employee as a person in service of any employer under any contract of hire expressed or implied, oral or written. § 287.020.1 RSMo. An independent contractor is one who contracts to do a piece of work according to his own methods without being subjected to the control of an employer except as to the final result of the work. *Cole v. Town & Country Exteriors*, 837 S.W.2d 580, 584 (Mo. App. E.D. 1992), *overruled on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). "An employee is distinguished from an independent contractor by the amount of control exercised by the alleged employer." *Id.* Some factors considered in determining whether an individual is an employee as opposed to an independent contractor are: 1) whether the work is part of the regular business of the employer; 2) whether the work is a distinct occupation requiring special skills; 3) whether the alleged employee may hire assistants; 4) whether the work is usually done under supervision; 5) whether the employee supplies his own tools and materials; 6) whether there was a contract for a specific piece of work at a fixed price; 7) whether the worker is paid by the time; and 9) the extent to which the
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Tommy Patrick
Injury No. 16-056896
employee may control the details of the work except as to the final results. *Choteau v. Netco Construction*, 132 S.W.3d 3rd 328, 332 (Mo. App. W.D. 2004).
Claimant did not get paid by Jerry Dierker, Dierker Construction, or the City of Monett. Rather, Claimant was paid by the hour on a regular basis with paychecks issued by Mulvaney Construction LLC. Claimant had a long-standing, continual relationship with Derek Mulvaney, having worked for him about a year. This was not piecework. Claimant regularly performed whatever construction-related duties Derek Mulvaney directed him to perform. Claimant had no tools and brought no materials with him. There also is no evidence that Claimant could hire an assistant to perform the assigned work. The balance of all factors weighs heavily in favor of finding Claimant to have been an employee of Derek Mulvaney at the time of the work injury. Claimant was not an independent contractor.
Even having just one employee placed Derek Mulvaney under a duty to secure workers' compensation insurance, pursuant to §287.030.1(3) RSMo. Derek Mulvaney admitted that he had no workers' compensation insurance when Claimant needed medical care on March 17, 2016. He repeated that denial of coverage in his deposition. In the case of a construction worker whose immediate employer does not have coverage for workers' compensation claims, the worker is allowed to go up the ladder to the other contractors to determine if they have workers' compensation coverage that would apply to him. This is allowed through the "statutory employment" statute, which reads in applicable part as follows:
- Any person who has work done under contract on or about his premises which is an operation at 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.
- The provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished, altered or repaired by an independent contractor but such independent contractor shall be deemed to be the employer of the employees of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work.
- 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. 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 made liable as in this section provided, if the employer was insured by his immediate or intermediate employer.
Section 287.040.1 and 3, RSMo.
With respect to Claimant and Derek Mulvaney, Jerry Dierker solely was a representative of the City of Monett as coordinator of the City's renovation project, and not as a general contractor himself. Part of the work was being performed pursuant to a verbal contract between the City of Monett and Mulvaney. The location undergoing remodeling or repair is the premises of the principal contractor while the work is being completed. *Cole v. Town and Country Exteriors*, 837 S.w.2d 580, 585 (Mo. App. E.D. 1992) overruled on other grounds *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). Claimant was performing the work on the premises of the City of Monett when he was injured. It is clear from all of the
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Tommy Patrick
Injury No. 16-056896
evidence that The City of Monett was acting as the general construction contractor, using some subcontractors and some of its own employees to complete the renovation of the City Hall. Pursuant to § 287.040.1 and 3 RSMo, the City of Monett was Claimant's statutory employer and is secondarily liable.
The City of Monett contends that it is not liable because the work being performed was not "an operation at the usual business" of the City of Monett, as stated in § 287.040.1 RSMo (cited above). But, there is no "litmus" test as to what is defined as a party's usual course of business. *Barger v. Kansas City Power & Light Co.*, 548 S.W.3d 424, 428 (Mo. App. W.D. 2018). As a municipality, it can be involved in any number of activities. In this case, the City of Monett made itself a general contractor in the remodeling project of its City Hall, even using some of its permanent employees to perform some of the construction work, and relying on a city council member with construction expertise to oversee the project. In doing so, the City of Monett made the remodeling project a part of its "usual business."
Moreover, the City of Monett cannot hide behind subsection 2 of § 287.040 RSMo, which protects from liability the mere owners of property upon which improvements are being erected. In this case, by not hiring a general contractor to control the remodeling project, the City of Monett was more than a mere property owner and is liable under the Missouri Workers' Compensation Law. See e.g., *West v. Posten Construction Co.*, 804 S.W.3d 743, 745 (Mo. banc 1991), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003) (holding that when an owner did not procure an independent contractor to build a house, there was no reason not to allocate the loss to the principal contractor erecting an improvement on his own property).
It is undisputed that neither Derek Mulvaney nor its construction company had workers' compensation insurance. Both Dierker Construction and the City of Monett, pursuant to statute, preserved their rights to proceed against Mulvaney if either of them were found responsible to Claimant. The City of Monett may proceed against Mulvaney, as I have found that the City of Monett is secondarily liable to Claimant for the benefits awarded.