Jesse Wulf v. Tradesman International, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 18-113120**

**Employee:** Jesse Wulf

**Employer:** Tradesman International, Inc.

**Insurer:** New Hampshire Insurance 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 December 1, 2021, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Mark, S. Siedlik, issued December 1, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 28th day of September 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Roderick Campbell, Chairman**

**Shalonn K. Curls, Member**

**VACANT Member**

**Attest:**

**Shelah S. Legge, Secretary**

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

DECEMBER 01, 2021

18-113120

Scan Copy

*Employee : JESSE WULF* 13318418 0 11419 E 14TH ST S INDEPENDENCE, MO 64052-3809 *Employee Attorney: TIMOTHY E POWER* SANTA FE BUILDING 8000 FOSTER OVERLAND PARK, KS 66204-3699 *18-113120* *13318419 7 TRADESMEN INTERNATIONAL* 9760 SHEPARD RD MARCEDONIA, OH 44056 *Insurer : NEW HAMPSHIRE INSURANCE CO* c/o SEDGWICK CLAIMS MANAGEMENT SER PO BOX 14155 LEXINGTON, KY 40512-4155 *Insurer Attorney: BRIAN J FOWLER* 1100 MAIN ST STE 2000 KANSAS CITY, MO 64105-2119 *Insurer : NEW HAMPSHIRE INSURANCE CO* *Denotes that the Division sent a copy of the Award by electronic mail to the email address that the party provided. The Certificate of Service for this document is maintained in the Division's records.

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

AWARD ON HEARING HLP

Please visit our website at www.labor.mo.gov/DWC

Employee: Jesse Wulf

Injury No.: 18-113120

Dependents: N/A

Employer: Tradesmen International, Inc.

Insurer: New Hampshire Insurance Co.

Additional Party: N/A

Hearing Date: August 26, 2021

Checked by: MSS/drl

1. Are any benefits awarded herein? No. Missouri does not have jurisdiction over this claim.
2. Was the alleged injury or occupational disease compensable under Chapter 287? Missouri does not have jurisdiction.
3. Was there an accident or incident of occupational disease under the Law? Not under Missouri law.
4. Date of alleged accident or onset of occupational disease: November 14, 2018
5. State location where alleged accident occurred or occupational disease was contracted: Marietta, Georgia
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did alleged accident or occupational disease arise out of and in the course of the employment? Yes, but Missouri does not have jurisdiction.
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured? New Hampshire Insurance Company
11. Describe work employee was allegedly doing and how alleged accident occurred or occupational disease contracted: Claimant was working from a ladder when a brace gave out. Claimant sustained initial injury to his left upper extremity.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Left upper extremity and now neck, low back claim

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jesse Wulf

Employee: Jesse Wulf

Dependents: N/A

Employer: Tradesmen International, Inc.

Insurer: New Hampshire Insurance Co.

Additional Party: N/A

Hearing Date: August 26, 2021

Checked by: MSS/drl

The parties appeared for trial of this claim on August 26, 2021. The sole issue to be addressed is the claim that the Missouri Division of Workers' Compensation has jurisdiction over this claim. The Employer/Insurer dispute and deny that Missouri has jurisdiction.

The Employer/Insurer admit that the Kansas Division of Workers' Compensation has jurisdiction over this claim and admit Claimant sustained a compensable injury. Benefits were immediately started under the Kansas Workers' Compensation Act and the Claimant has been receiving $645.00 per week, the maximum Kansas rate for T.T.D. The Employer/Insurer have paid medical benefits and continued to pay medical benefits for treatment Claimant is receiving, again, under the Kansas Workers' Compensation Act. Claimant is alleging Missouri jurisdiction so he can claim a higher compensation rate for his temporary total disability. The only issue for the Court at this hearing is, does the Missouri Division of Workers' Compensation have jurisdiction. The Court did question previously if this type of issue meets the requirement of a "Hardship Hearing" but the Court did allow Claimant to proceed with the hearing.

Claimant testified on his own behalf. He originally applied for employment with Tradesmen International (hereafter "Tradesmen") in July or August 2013. He filled out an application online for employment. He was at a job center in Leavenworth, Kansas. Claimant was living in Leavenworth, Kansas at that time.

Following his completion of the online application, he was invited to the Tradesmen office located in Kansas City, Kansas for an interview. This was the one and only time he ever interviewed for employment with Tradesmen.

Claimant did complete an employment application, the application dated August 12, 2013. (Employer/Insurer's Exhibit 1). During the interview at the Tradesmen's office in Kansas City, Kansas he was offered employment which he accepted. He clearly entered into a Kansas contract of employment.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jesse Wulf

Injury No.: 18-113120

Tradesmen supplies skilled workers, such as Claimant, for its clients. Tradesmen would be considered a specialized manpower employment company.

Once he was hired, Claimant worked at a number of projects for Tradesmen. Employer/Insurer's Exhibit F references his dates worked and compensation received while working for Tradesmen.

Claimant discussed how he obtained his job assignments. He would receive a telephone call, usually at night, from a representative advising as to the next day job assignment. The call was normally followed by a text to his phone with the location of the project, directions to the site and other information he would need. At times, there was not always work available. Some projects would run longer than a day or even several weeks.

Employer/Insurer's Exhibit F reflects Claimant worked fairly continuously from 2013 until May of 2014. There was then a break in employment until he returned for an assignment July 13, 2014. (Page 4 of Exhibit F) When he returned, Claimant did not have to complete a new job application or re-interview for the position. He simply received a telephone call just as he had for previous assignments and was advised that there was a job available for him. Claimant worked most of the remainder of 2014 and worked until May 24, 2015. Once again, there was a break in his employment and he was not called back with a new assignment until on or about November 15, 2015. Similar to prior breaks in his employment, Claimant admitted he did not have to reapply for employment or go through another interview process. He was still considered an employee of Tradesmen when he took his next job assignment in November of 2015.

Testimony from Claimant, as well as from Employer witness, Mike Wolf, confirmed that Claimant was a very skilled Carpenter and was well liked by clients of Tradesmen. In fact, often times clients would specifically request the services of Claimant.

Once Claimant took on new assignments in 2015, he worked until April 2016. At that time, he went back temporarily to a construction company, Harmon Construction. The work at Harmon "slowed down" and Claimant was advised that Harmon had little projects that would be available in the Fall and Winter of 2017.

In September of 2017, he received another telephone call from Mike Wolf. He knew it was Mike because his cell phone showed the name of "Mike Wolf" and he knew that Mike was calling reference a work project that would be available through Tradesmen. Mike called him on his cell phone. Mike explained that there was a project available in Overland Park, Kansas if Claimant wanted to show up for work. Claimant said he would report for the assignment in Overland Park, Kansas. Later that day, he received the usual text message from Mike with details on the location of the project and the Supervisor he would report to once he arrived at the site.

This was a very brief phone call with Mr. Wolf. There was no discussion of employment benefits. Claimant admitted there was no need to discuss benefits. There was no discussion of an hourly rate for Claimant. He knew from his last project at Tradesmen that he

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jesse Wulf

Injury No.: 18-113120

would be paid $25.00 per hour. He was not required by Mike to first report to the Tradesmen Kansas City, Kansas office.

Claimant then went to the Overland Park job assignment the next day. He reported to the Supervisor for the project, a representative of SM Wilson. He was required to watch a safety video before he could actually start work.

On direct exam, Claimant was asked about additional employment paperwork in his employment file such as Kansas withholding information, disclosure on possible background investigation and other documents that Tradesmen had for him. Claimant testified he was not required to go to the Tradesmen office in Kansas before he reported to the Overland Park job location on or about September 18th of 2017. He believes someone else may have updated the employment file and also electronically signed for receipt of various documents in his personnel file.

The telephone call and text message Claimant received in September 2017 was no different than multiple telephone calls he received in the past from Tradesmen. At the time he received the telephone call in September 2017, he still considered himself an employee of Tradesmen.

Claimant continued to work at the Overland Park job assignment with SM Wilson. When that project ended, he then transferred to a job assignment in Marietta, Georgia. Once again, he was not required to reapply for employment or complete any additional employee information. It was while at the job assignment in Marietta, Georgia that he sustained the work injury. As stated above, the Employer/Insurer immediately accepted the claim and started paying temporary total disability benefits. Claimant accepted all benefits under the Kansas Workers' Compensation Act and continues to accept those benefits. His original claim was filed only in the State of Kansas (he also has retained a Georgia attorney but not sure if he has filed a claim in Georgia). Claimant did not file a Missouri claim until December 15, 2020, over two years after his accident.

Mr. Mike Wolf testified at trial, he is a Senior Account Executive for Tradesmen. He coordinates job assignments for clients of Tradesmen. He has absolutely no authority to hire or fire employees. He will review computer lists that Tradesmen maintains of laborers that are available for job assignments. He will then determine if there is a good fit for a laborer with a current client. If so, he will contact the laborer and explain the position or job assignment. All communication is normally done by cell phone and/or a follow up text message. Once an employee is hired, he or she would not have to reapply for every new job assignment or project.

Mike Wolf was familiar with Claimant's abilities. He was considered a very good employee. In fact, clients such as SM Wilson at times requested Claimant for job openings they had. In September 2017, SM Wilson was starting a project in Overland Park, Kansas. Mr. Wolf thought Claimant would be a good person to assign to the project. He checked the employment ledger and saw Claimant was listed as an employee. He then called the same number he had always used for Claimant. He discussed with Claimant the job assignment

available in Overland Park, Kansas. After the phone call, he then sent a text to Claimant with information on the job location, when to report and the name of the Superintendent. Within a few days he would have been at the project to make sure Claimant was working out okay for the client.

Mr. Wolf discussed the normal policy at Tradesmen might require an employee who had been absent for more than six months to complete additional paperwork. However, in this case, he was not aware that was required at all for Claimant. He saw that he was available for a job assignment in September 2017 and he called him to discuss the project. Mr. Wolf could not recall ever seeing Claimant in the Kansas City, Kansas office in September of 2017.

Missouri can take jurisdiction only under three circumstances:

(1) Injury received in the State of Missouri. Obviously, that did not occur in this case. Claimant was injured in the State of Georgia.

(2) Where the employee's employment is localized in Missouri within thirteen weeks of the injury, that did not happen in Missouri. All of Claimant's employment the thirteen weeks prior to the injury occurred in the State of Kansas and/or the State of Georgia.

(3) Where the Contract of Employment was entered into in the State of Missouri.

No question the contract of employment was entered into in the State of Kansas in August of 2013. Claimant conceded as such, he had an interview at the Kansas City, Kansas office of Tradesmen and was offered employment at that time.

This is a rather unique employment relationship between Claimant and Respondent. Claimant does not have an office he reports to on a daily basis. Instead, he reports to whatever project might be available for clients of Respondent. All job assignments were provided by way of telephone call and a text message to him, at times daily, or a weekly basis. The phone number he provided to Respondent is the same phone number he had at trial, a 913 Kansas area exchange.

Exhibit F shows the somewhat sporadic nature of Claimant's employment assignments. There would be times when he was working full regular duty. At other times, there would be gaps in employment of two months, six months or even longer.

There is no disagreement between Claimant and Mike Wolf as to how he received his job assignments. They were all handled by calls from Mike Wolf to Claimant, or from one of the other account executives with Tradesmen.

In September 2017, Claimant was laid off from a different employer. As he was in his car, his phone flashed that Mike Wolf was calling him. His wife was in the car and he told her that Mike was calling about a job assignment. This was a very brief phone call, Claimant then

received a text message with more information about the job assignment in Overland Park, Kansas. The next day or perhaps two days later, Claimant reported to the job assignment for SM Wilson. He first had to review a video before he was actually allowed to start work.

The Court is well aware of the legal principle concerning a contract of hire, that we look to the last act necessary to complete the employment contract. In this case, it is very clear that the last act necessary to create a contract of employment occurred in August of 2013 at Tradesmen's Kansas City, Kansas location. There was no need or requirement for a new contract of employment after that date. Both parties continued with the understanding that Claimant was an employee of Tradesmen and they continued to act in that fashion. This is verified by the constant phone calls and text messages back and forth between the parties for ongoing job assignments. The testimony of Claimant at trial confirmed there was no need for a new or different contract of employment to be entered into in September of 2017. He knew the second he saw Mr. Wolf's name flash on his cell phone that Mr. Wolf was calling with a job assignment. There was no discussion of employee benefits or compensation that Claimant would receive, those details were already reached during his prior job assignments. He was never instructed by Mr. Wolf that he had to go back to the Kansas City, Kansas office and reapply for employment. Even though he had been without job assignments for some months, he was still listed as an available employee on Tradesmen's job reports.

There must be a meeting of the minds between the parties to form a contract, and that all occurred in August of 2013. There was no "meeting of the minds" to form a new contract of employment in September of 2017. It is Claimant's burden of proof to convince the Court there is somehow a new contract of employment during this brief phone call with Mr. Wolf. The pattern and practice of conduct between the parties clearly demonstrates otherwise. Claimant has failed to sustain his burden of proof. Missouri does not have jurisdiction over this claim.

At the time Claimant received the September phone call, Claimant still considered himself an employee of Tradesmen. He agreed there was no reason for him to undergo additional job interview or fill out an additional employment application, he was already an employee. In addition, Mr. Wolf testified that he had no authority to hire or fire employees. Claimant offered no testimony to refute or contradict Mr. Wolf's testimony.

Documents were submitted by Claimant (Exhibit 1) reference additional employment information in his personnel file. Claimant denies that he completed any of the updated employment information and denies that he was required to complete any updated employment information before he started the job assignment for SM Wilson in Overland Park, Kansas. Although Mr. Wolf thought at times employees may have to complete updated paperwork, in this particular case, the evidence is clear there was no requirement of Claimant that he complete a new employment application or undergo a new interview process.

Claimant's own pleading concedes he did not care who completed the updated paperwork for his file. In his Memorandum submitted at the trial of this claim, Claimant stated that "meanwhile Tradesmen needed a paper file for Claimant and decided to make one for him without his physical signature and/or compliance. Frankly, Claimant did not care since he had

a job to go to and they were paying him a high wage". (Claimant's Memorandum, Page 10 and 11 submitted at trial)

Having considered all of the evidence presented, the Court finds that Claimant has failed to prove that the Missouri Division of Workers' Compensation has jurisdiction over this claim.

I certify that on Dec 012021

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.

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Made By: $\frac{\text { Mark }}{}$ Siedlik

Mark S. Siedlik

Administrative Law Judge

Division of Workers' Compensation