Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge

with Supplemental Opinion)

Injury No.: 15-078084 Employee: Vitaliano Rodas Employer: The Carter Group, Inc.

Villa Bella, LLC Aandrea Carter

Insurer: None 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, heard the parties’ arguments, 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 (ALJ) with this supplemental opinion. Findings of Fact Vitaliano Rodas is sixty-five years old, has a third-grade education, and speaks virtually no English. Through an interpreter, Mr. Rodas credibly testified that Aandrea Carter hired him through her company The Carter Group, Inc. in Kansas City, Missouri. From 2008 through 2015, he performed maintenance work at Ms. Carter’s multiple investment and rental properties involving carpentry, painting, roofing, and remodeling. A supervisor, Olivia Simpson, assigned his tasks each day. Employer(s) provided tools for his work, including paintbrushes, rollers, saws, carpet stretchers, nails guns, and compressors. The employee’s injury on May 18, 2015, occurred while he was setting floors at Villa Bella Apartments; a rental property located in Kansas City, Kansas, operated through Villa Bella, LLC. Both The Carter Group, Inc. and Villa Bella, LLC are 100% owned by Ms. Carter. The employee testified he worked full-time, approximately 50-52 hours each week and that employer paid him by check every Friday. He did not retain copies of his paychecks and could not recall the name of the company that appeared on the checks because it was in English. Employers produced time sheets showing the employee worked 45.5 hours during one week identified as 6/13/15 and 54 hours during a second week identified as 6/17/15.1 A third, undated time sheet, showed 9.5 hours of work on one day.2 Employers also produced:

• A 2014 1099-MISC form documenting The Carter Group, Inc.’s payment of $900.00 to Rodas Vitaliano [sic].3

1 Employers’ Exhibits 3 and 4, Transcript 648-650. 2 Id. 3 Employers’ Exhibit 7, Id. 653.

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 2 -

• A check from Villa Bella LLC dated June 19, 2015, payable to Rodas Vitaliano [sic] in the amount of $825.50.4

• A 2015 1099-MISC form documenting Villa Bella LLC and Aandrea Carter’s payment of $10,609.00 to Rodas Vitaliano [sic].5

Employers’ witness Joel Donigan testified that The Carter Group, Inc.’s payment of $900.00 to employee in 2014 was “done as a loan to Villa Bella”.6 Jurisdiction Section 287.020.1, defines “employee” for purposes of the Law as “every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written…” Section 287.110.2 provides:

This chapter shall apply to all injuries received and occupational diseases contracted in this state, regardless of where the contract of employment was made, and also to all injuries received and occupational diseases contracted outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide, and also to all injuries received and occupational diseases contracted outside of this state where the employee’s employment was principally localized in this state within thirteen calendar weeks of the injury or diagnosis of the occupational disease (emphasis added).

Based on the employee’s credible testimony we find he entered into a contract of hire with employer(s) in the State of Missouri. Pursuant to Section 287.110.2, the Workers’ Compensation Law applies to employee’s claim based on an injury sustained while performing work for employer(s) in the state of Kansas. Notice of Injury Section 287.420 requires an employee to give written notice of an injury within thirty days, with certain exceptions. The employee testified he provided actual notice to his supervisor, Olivia Simpson, on the date of the injury. Ms. Simpson told claimant to “do whatever you want because we don’t have any kind of insurance.”7 Her son took the employee to the hospital. We find the employee complied with the requirement of § 287.420 by providing actual notice of his injury to employers’ agent Olivia Simpson, on the date of his work accident. See Sell v. Ozarks Med. Ctr. 333 S.W. 3d 498 (Mo. App. 2011).

4 Employers’ Exhibit 5, Id. 651. 5 Employers’ Exhibit 35, Transcript, 666. 6 Id. 57. 7 Id. 85.

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 3 - Aandrea Carter’s Exemption from the Workers Compensation Law as a Qualified Real Estate Agent Employers’ application for review alleges error in that:

The ALJ’s Ruling of Law #2 that CLAIMANT wasn’t a real estate agent demonstrates a lack of understand [sic] of 287.090.1.2, which exempts the alleged EMPLOYER, not the Claimant.

Section 287.090.1.(2) provides: “This chapter shall not apply to. . .qualified real estate agents and direct sellers as those terms are defined in § 3508 of Title 26 of United States Code (emphasis added)”.

26 U.S.C. § 3508 (a) provides: (a) For purposes of this title, in the case of services performed as a qualified real estate agent. . . (1) the individual performing such services shall not be treated as an employee, and (2) the person for whom such services are performed shall not be treated as an employer. (emphasis added).

We find that the ALJ properly applied 287.090.1.(2) to the employee consistent with the definition set out in 26 U.S.C. § 3508 (a)(1). The ALJ correctly found Mr. Rodas was not exempt from the Workers’ Compensation Law pursuant to this section because the evidence demonstrated he is not a real estate agent. Employers cite no precedent in support of its argument that § 287.090.1.(2) exempts any employer from the Missouri Workers’ Compensation Law solely on the basis of the employer’s status as a “qualified real estate agent”. The mandate of strict construction requires us to interpret 287.090.1.(2) in accordance with its plain language, applying the statute only to situations or parties that are fairly or clearly within its terms. Section 287.800 requires that we “construe provisions of this chapter strictly.” Missouri case law informs:

“A strict construction of a statute presumes nothing that is not expressed.” The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions. Allcorn v. TAP Enterprises, Inc. 277 S.W.3d 823, 828 (Mo. App. 2009) (internal citations omitted).

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 4 - In our opinion, Section 287.090.1.(2) exempts an employer who is a “qualified real estate agent” from the provisions of the Workers’ Compensation Law only to the extent that an employee’s services relate to employer’s performance of services as a qualified real estate agent. There is no evidence that employee’s carpentry, painting, roofing and remodeling work related to any services Aandrea Carter performed as a real estate agent. We therefore conclude that the provisions of 287.090.1.(2) do not exempt Ms. Carter as an employer from the Missouri Workers’ Compensation Law. Admission of Dr. James Stuckmeyer’s Report and Deposition Employers’ application for review alleges the ALJ’s award is erroneous because “Claimant’s expert’s notice doesn’t comply with 287.210.7 as he was not made available for cross-examination”. Employers’ brief provides no further discussion or explanation of this argument. Section 287.550 provides:

All proceedings before the commission or any commissioner shall be simple, informal, and summary, and without regard to the technical rules of evidence, and in accordance with section 287.800. All such proceedings shall be according to such rules and regulations as may be adopted by the commission.

Section 287.560 provides, in pertinent part, “Any party shall be entitled to process to compel the attendance of witnesses and the production of books and papers, and at his own cost to take and use depositions in like manner as in civil cases in the circuit court.” Consistent with the requirement that all workers’ compensation proceedings be “simple, informal and summary, and without regard to the technical rules of evidence,” § 287.210.7 of the Workers’ Compensation Law codifies an exception to the hearsay rule by permitting admission of the complete report of a treating or examining physician without other foundational evidence, subject to a party’s compliance with specified procedures. Among the procedures specified in the statute are the requirements that a party give notice to the other side within sixty days of the hearing that it intends to submit a report in lieu of testimony of its medical expert and provide the other side a “reasonable opportunity” to obtain cross-examination testimony from the treating or examining physician. No additional common law rights to discovery exist in workers’ compensation cases beyond those provided by statute.8 This legal proposition applies to the Commission. Employee’s attorney notified employers of his intent to use Dr. James Stuckmeyer’s independent medical report as evidence at trial pursuant to 287.210 by a notice dated March 30, 2016.9 The employee produced Dr. Stuckmeyer for deposition on May 4, 2016. Dr. Stuckmeyer’s May 4, 2016, deposition includes thirty-six pages of cross-examination by employers’ attorney.10 When employers’ counsel refused to withdraw a question 8 Lutes v. Honorable Lee B. Schaefer, 431 S.W.3d 550,553 (Mo. App. 2014). 9 Claimant’s Exhibit D, Transcript, 529-530. 10 Claimant’s Exhibit F, Id. 552-560.

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 5 - suggesting that Dr. Stuckmeyer was acting more as employee’s advocate than as a physician, employee’s attorney accused him of badgering the witness, declared the deposition over, and instructed his expert to leave. Employers’ attorney objected by stating, “I’ve got a full page of questions that I have not been able to ask and I’m going to move to strike this entire deposition testimony”.11 Employee’s attorney invited employers’ counsel to move on to other questions but employers’ attorney declined to further depose the witness. The ALJ admitted Dr. Stuckmeyer’s report, noting that the employers’ attorney did not object to employee’s notice within ten days, as required by 287.210.7. The ALJ admitted Dr. Stuckmeyer’s deposition as evidence, overruling employers’ hearsay objection. The ALJ advised the parties that he would take employers’ second objection, relating to the conduct of the May 4, 2016, deposition, under advisement in deciding the weight given to Dr. Stuckmeyer’s deposition testimony.12 On or about May 17, 2016, employee’s counsel filed a Motion for Entry of Protective Order alleging employers’ counsel was “harassing, annoying, and/or badgering Dr. Stuckmeyer with non-probative and/or irrelevant questions” during the May 4, 2016, deposition.13 Employee’s motion requested that any future questioning of Dr. Stuckmeyer by employers be confined to opinions and findings in Dr. Stuckmeyer’s report and medical records and that any future deposition be limited to at most fifteen minutes. Employers’ attorney took no steps to conduct further cross-examination of Dr. Stuckmeyer and sought no relief until the January 9, 2017, hearing, more than eight months after the doctor’s May 4, 2016, deposition. We find employee’s attorney provided employers’ attorney reasonable opportunity to obtain cross-examination of Dr. Stuckmeyer as required by § 287.210.7. The report and deposition of Dr. Stuckmeyer are properly admitted into evidence. Employer/Employee Relationship Section 287.030.1 defines “employer” for purposes of the Law as:

(1) Every person, partnership, association, corporation, limited liability partnership or company . . . using the service of another for pay.

. . .

(3) Any of the above-defined employers must have five or more employees to be deemed an employer for purposes of this chapter…except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for purposes of this chapter if they have one or more employees. . . .

11 Id. 560. 12 Id. 12-13. 13 Claimant’s Exhibit M, Id. 615-642.

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 6 - § 287.040.1 provides:

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.

The ALJ found that Villa Bella, LLC, and Aandrea Carter were involved in the construction industry on the basis that they routinely engage in the erection, demolition, alteration, or repair of improvements on property they own. This finding, based on the definition of “employer” in 287.030.1, is to some extent inconsistent with our analysis and unnecessary to our resolution of the issue of the employer/employee relationship in this case. Therefore, while we affirm the ALJ’s finding that Mr. Rodas is a covered employee, we disavow his finding that Aandrea Carter and Villa Bella, LLC qualify as construction industry employers.14 Nothing in the plain language of 287.040.1 predicates liability, as a statutory employer, based upon a minimum number of employees. Consistent with the Law’s strict construction mandate, we may not construe the statute as including additional requirements that are not set out by its express terms. We further note the general rule that, “‘[w]here one statute deals with a particular subject in a general way, and a second statute treats a part of the same subject in a more detailed way, the more general should give way to the more specific.’” Anderson v. Ken Kauffman & sons Excavating, L.L.C., 248 S.W.3d 101, 107-108 (Mo. App. 2008) citing Moats v. Pulaski County Sewer Dist. No. 1, 23 S.W.3d 868, 872 (Mo App. S.C. 2000). Consistent with this statutory construction canon we find that the employer liability provisions of 287.040.1 are more detailed and specific and take precedence over the general definition of employer set out in 287.030.1. For this reason, whether employer(s) retained five or more workers to perform work under contract on their premises and in the regular course of their business is irrelevant to our determination of the existence of a statutory employer/employee relationship in this case. As stated by the Supreme Court in McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473,480 (Mo. 2009):

[Section 287.040.1] is designed to prevent employers from evading the Act’s requirements by hiring independent contractors to perform work the employer

14 The ALJ further found that “Villa Bella, LLC, had five employees including: Ms. Aandrea Carter, Joel Donigan, Olivia Simpson, Fausto and Vitaliano Rodas, Roman Aleberto Lozaya [sic] and others whom the Employers refused to provide documentation requested by the Claimant prior to the deposition of Mr. Donigan”. Award, p. 8. While we question this finding, we need not decide the issue of whether Villa Bella, LLC had five employees because of our holding on the issue of a statutory employer/employee relationship.

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 7 -

otherwise would hire ordinary employees to perform. Bass, 911 S.W.2d at 619. It does so by defining the company that hires the independent contractor as a statutory employer. This allows an injured employee to recover workers’ compensation from the company if injured, just as if the work had not been farmed out to an independent contractor (emphasis added). Huff v. Union Elec. Co., 598 S.W.2d 503, 511 (Mo. App. 1980). The party asserting the existence of statutory employee status bears the burden of proving that the injured person was a statutory employee of the purported statutory employer. Martinez v. Nationwide Paper, 211 S.W.3d 111,115 (Mo. App. 2006). One is a statutory employee if (1) the work is performed pursuant to a contract, (2) the injury occurs on or about the premises of the alleged statutory employer and (3) the work is in the usual course of the alleged statutory employer’s business. Bass, 911 S.W.2d at 619.

We find Aandrea Carter engaged employee through The Carter Group to perform carpentry, roofing and miscellaneous remodeling work for her various businesses, including Villa Bella, LLC. Employers’ witness Joel Donigan testified that the employee performed work for Villa Bella, LLC as “a private contractor”.15 There is no dispute that the employee performed work pursuant to a contract. It is further undisputed that the employee’s May 18, 2015, injury occurred while the employee was repairing floors at Villa Bella Apartments, rental property owned and operated by Aandrea Carter through Villa Bella, LLC. McCracken, supra, provides the following guidance regarding the “usual business” element of the three-prong statutory employer/employee test:

Whether a particular sort of work is within a party’s usual course of business is a fact-driven inquiry; there is no “‘litmus paper’ test.” Ferguson v. Air-Hydraulics Co., 492 S.W.2d 130, 135 (Mo App. 1973). In Bass16 this Court defined “usual business” as “those activities (1) that are routinely done (2) on a regular and frequent schedule (3) contemplated in the agreement between the independent contractor and the statutory employee to be repeated over a relatively short span of time (4) the performance of which would require the statutory employer to hire permanent employees absent the agreement.” 911 S.W.2d at 621. This definition is designed to exclude “specialized or episodic work that is essential to the employer but not within the employer’s usual business as performed by its employees.” Id. McCracken, supra, at 480.

We find that the various properties owned by Aandrea Carter and Villa Bella, LLC required maintenance and repair work on an ongoing basis and that the employee routinely and repeatedly performed carpentry, roofing, and remodeling jobs at these properties. The employee completed each job assignment within a relatively short span of time. We find 15 Transcript, 539. 16 Bass v. Nat’l Super Mkts., 911 S.W.2d 617, 621 (Mo. banc 1995).

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 8 - that the employee regularly performed similar work for employers on a regular and frequent schedule, that employee’s work was not specialized or episodic and that but for its agreement with employee, employers would be required to hire a permanent employee to perform similar work. We conclude that employee’s work was in the usual course of the business of Aandrea Carter and Villa Bella, LLC, as required by the third prong of the statutory employer/employee test. See McGrath v. VRA I L.P., 244 S.W. 3d 220 (Mo App. 2008). We conclude, pursuant to § 287.040.1, the employee was a statutory employee of Aandrea Carter, Villa Bella, LLC, and The Carter Group, Inc.17 Temporary Total and Permanent Partial Disability Employers’ application for review alleges the ALJ’s award of temporary total and permanent partial disability benefits is unsupported by the evidence because the employee “admitted he was working post-injury and all evidence shows he worked only periodically and not ‘50-52 hours per week.’”18 Employers’ allegation that employee worked for employers only periodically is refuted by the employee’s credible testimony. As noted by the ALJ:

It is undisputed that no temporary total benefits were paid to Mr. Rodas. Dr. Stuckmeyer testified that Mr. Rodas needed to be off work from May 18, 2015 to June 11, 2015, or 24 days. (Ex. C, p. 4.) Dr. Stuckmeyer’s medical opinions are uncontroverted. Mr. Rodas testified he was off work from May 18, 2015 to June 11, 2015, due to his injury, surgery, and recovery.19

Employers produced time sheets referencing hours worked during weeks identified as June 13, 2015, and June 17, 2015. These records do not establish that employers paid employee any wages from May 18, 2015, to June 11, 2015, nor do they refute employee’s claim of temporary total disability for that period.20 With respect to the issue of permanent partial disability, we credit the employee’s testimony regarding chronic pain, loss of strength in his right knee, and limitations since his work injury relating to standing, lifting, climbing, and running. Mr. Rodas’ testimony is consistent with the expert medical opinion of Dr. James Stuckmeyer, who imposed permanent work restrictions on employee of “no prolonged standing or walking greater

17 We include The Carter Group, Inc., as an employer because as we have noted earlier, The Carter Group made payment to employee on Villa Bella’s behalf. As we discuss further herein, we find The Carter Group, Inc., indistinguishable from Aandrea Carter and Villa Bella, LLC for purposes of the employee’s claim. 18 Employers’ application for review does not allege error with respect to the ALJ’s calculation of employee’s wage rate. Pursuant to 8 CSR 20.3.030(3)(A) employer fails to preserve this issue on appeal. 19 Award, 11. 20 Employers’ Exhibits 3 and 4, Transcript 648-650.

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 9 - than tolerated with absolutely no kneeling, squatting or crawling and no repetitive stair climbing greater than needed for activities of daily living”.21 Dr. Stuckmeyer testified that the employee’s May 18, 2015, work injury was the cause and prevailing factor of his right knee injury, his need for right knee surgery and 30% permanent partial disability to the right knee. As the ALJ notes, Dr. Stuckmeyer’s medical opinion is uncontroverted since employers produced no rating or medical report. The employee testified that Olivia Simpson, employers’ agent, discharged him after his injury, telling him “there was no more work for me because I was useless, that she had better people…that could work better than me.”22 The employee acknowledged that in an effort to survive financially since becoming unemployed he has performed work for several people, “but just for a little bit of time…not even 20 hours a week”.23 Employee’s ability to perform some light maintenance work, as documented by employers’ video surveillance, discredits neither employee’s testimony regarding his physical limitations nor Dr. Stuckmeyer’s uncontroverted evaluation of the nature and extent of the employee’s permanent partial disability. We find competent and substantial evidence in the record to support the ALJ’s award of temporary total and permanent partial disability. The employee is entitled to compensation of 3.4 weeks of temporary total disability from May 18, 2015, to June 11, 2015, and permanent partial disability of 30% PPD at the 160-week level referable to the employee’s right knee. Piercing the Corporate Veil As stated in Walls v. Allen Cab Co., 903 S.W.2d 937, 942 (Mo. App. 1995):

For workers’ compensation purposes, in order to “pierce the corporate veil,” a claimant must show: 1) control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the nominal company had at the time of the injury no separate mind, will, or existence of its own; 2) such control must have been used to commit fraud or wrong, to perpetuate the violation of a statutory duty, or dishonest and unjust act in contravention of claimant’s legal rights; and 3) the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of. “Piercing the corporate veil” is a viable doctrine under the Missouri Workers’ Compensation Law. [citations omitted]

Collet v. American Nat’l Stores, Inc., 708 S.W.2d 273, 284 further states:

[W]hen one corporation shows such domination and control over another that the latter corporation becomes a mere adjunct or the “alter ego” of the first

21 Claimant’s Exhibit F, Transcript, 575-576. 22 Id. 104. 23 Id. 96.

Injury No.: 15-078084 Employee: Vitaliano Rodas

- 10 -

[and] when the formal corporate separateness and the arrangements between the two corporations is devised or used to accomplish a fraud, injustice, or some unlawful purpose, then the separate formal corporate structures will be ignored. Id.

We find The Carter Group, Inc. and Villa Bella, LLC, 100% owned by Aandrea Carter, are subject exclusively to her domination and control. Both entities paid employee for his work on Ms. Carter’s multiple investment and rental properties. Employers’ admission that The Carter Group, Inc. “loaned” money to Villa Bella, LLC to pay for services employee provided Villa Bella demonstrates that the two entities are not authentically separate. We conclude that The Carter Group, Inc. and Villa Bella, LLC have no separate mind, will, or existence independent of Aandrea Carter. They do not constitute legitimate separate corporate entities but rather function merely as Ms. Carter’s alter egos. We find that Aandrea Carter used both The Carter Group, Inc. and Villa Bella, LLC to avoid her responsibilities as an employer under the workers’ compensation law in contravention of the employee’s legal rights. We further find that her control of both entities and failure to comply with the Law proximately caused the employee to incur substantial uncompensated medical expense and lost wages. We therefore find Aandrea Carter personally liable for the employee’s work injury. Award We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Lawrence G. Rebman, issued May 19, 2017, is attached and incorporated by this reference. Given at Jefferson City, State of Missouri, this 12th day of April 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION John J. Larsen, Jr., Chairman VACANT Member Curtis E. Chick, Jr., Member Attest: Secretary

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

Revised Form 31 (2/97) Page 1

FINAL AWARD

Employee: Vitaliano Rodas Injury No. 15-078084 Dependents: N/A Employer: The Carter Group, Villa Bella, LLC, and Aandrea Carter Insurer: None Additional Party: N/A Hearing Date: January 9, 2017 Checked by: LGB/pd

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes 2. Was the injury or occupational disease compensable under Chapter 287? Yes 3. Was there an accident or incident of occupational disease under the Law? Yes 4. Date of accident or onset of occupational disease: May 18, 2015 5. State location where accident occurred or occupational disease was contracted: Kansas City,

Kansas 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 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? The Employers do not have insurance. 11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant scraped knee while pulling up floorings. 12. Did accident or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

Revised Form 31 (2/97) Page 2

13. Part(s) of body injured by accident or occupational disease: Right knee 14. Nature and extent of any permanent disability: 30% PPD at the 160-week level 15. Compensation paid to date for temporary disability: None 16. Value necessary medical aid paid to date by employer/insurer? None 17. Value necessary medical aid not furnished by employer/insurer? $36,725.52 18. Employee's average weekly wages: $667.00 19. Weekly compensation rate: $450.67 permanent partial disability 20. Method wages computation: Testimony of Claimant

COMPENSATION PAYABLE

21. Amount of compensation payable from Employer: Past medical aid not furnished by Employer/Insurer in the amount of $36,725.52 and $21,632.16 for 30% PPD to the right knee at the 160-week level. Unpaid temporary total disability in the amount of $1,532.28. TOTAL: $59,889.96 . 22. Second Injury Fund liability: N/A 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 Mav Mirfasihi, Employee’s attorney, for necessary legal services rendered.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

Revised Form 31 (2/97) Page 3

FINDINGS OF FACT and RULINGS OF LAW: Employee: Vitaliano Rodas Injury No. 15-078084 Dependents: N/A Employer: The Carter Group, Villa Bella, LLC, and Aandrea Carter Insurer: None Additional Party: N/A Hearing Date: January 9, 2017 Checked by: LGB/pd

The evidentiary hearing in this case was held on January 9, 2017, in Kansas City,

Missouri. Claimant, Vitaliano Rodas, appeared personally and by counsel, Mav Mirfasihi; Employers, The Carter Group, Villa Bella, LLC, and Aandrea Carter, appeared personally and by counsel, Eric C. Carter. The parties were instructed to prepare and submit proposed awards on February 10, 2017. This case was submitted February 10, 2017.

STIPULATIONS

Despite the requirements of Division of Workers’ Compensation Rule 8 CSR 50-2.010(14) states, in pertinent part, “Prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues (emphasis added).” The parties refused to stipulate to any issues.

ISSUES

The parties agreed that the issues to be decided were:

1. Whether the Claimant was operating subject to the Missouri Workers’ Compensation Law;

2. Whether the Employers were employers under the Law; 3. Whether there was an accident; 4. Whether the notice requirements of Section 287.420 serve as a bar to the claim for

compensation; 5. The nature and extent of any disability; 6. The average weekly wage of the Claimant; 7. Employers’ liability, if any, to reimburse Claimant for expenses for past medical

treatment; 8. Employers’ liability, if any, for temporary total disability.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

WC-32-R1 (6-81) Page 4

EVIDENCE

The evidence consisted of the testimony of Claimant, Vitaliano Rodas, and Joel Donigan and Aandrea Carter.

The Employee offered the following exhibits, all of which were objected to by the

Employers with the exception of Claimant’s Exhibits H and J-N. Claimant’s Exhibit A – KU Medical Center records Claimant’s Exhibit B – KU Medical Center: $36,725.52 Claimant’s Exhibit C – IME of Dr. James Stuckmeyer Claimant’s Exhibit D – Notice of Report Claimant’s Exhibit E – Deposition of Joel Donigan (Corporate Representative) Claimant’s Exhibit F – Deposition of Dr. James Stuckmeyer Claimant’s Exhibit G – Vocational report of Michael Dreiling Claimant’s Exhibit H – Claim for Compensation (Carter Group) dated 10/15/15 Claimant’s Exhibit I – Notice of Deposition & Subpoena Duces Tecum (Employers’ Corporate Rep) Claimant’s Exhibit J – Letter to Employers’ Attorney dated 7/18/16 Claimant’s Exhibit K – Demand Letter & Request for Statements dated 3/30/16 Claimant’s Exhibit L – Attorney/Client Contract Claimant’s Exhibit M – Motion for Protective Order Claimant’s Exhibit N – The Carter Group, Inc.’s Webpage The Employers offered the following exhibits into evidence without objection except for

objections to Exhibits 1 and 3-9 which were admitted. Employers’ Exhibit No. 1 – W-9’s of Claimant Employers’ Exhibit No. 2 – Photo of Claimant working Employers’ Exhibit No. 3 – Time Sheet Employers’ Exhibit No. 4 – Time Sheet Employers’ Exhibit No. 5 – Pay check to Claimant Employers’ Exhibit No. 6 – W-9 of Claimant (Same as Exhibit 1) Employers’ Exhibit No. 7 – 2014 Tax Return of The Carter Group Employers’ Exhibit No. 8 – Social Security Verification Employers’ Exhibit No. 9 – 2015 Tax Return of The Carter Group Employers’ Exhibit No. 10 – Photo Employers’ Exhibit No. 11 – Video Employers’ Exhibit No. 12 – Video Employers’ Exhibit No. 13 – Video Employers’ Exhibit No. 14 – Video Employers’ Exhibit No. 15 – Video Employers’ Exhibit No. 16 – Video Employers’ Exhibit No. 17 – Photo Employers’ Exhibit No. 18 – Video Employers’ Exhibit No. 19 – Video Employers’ Exhibit No. 20 – Video Employers’ Exhibit No. 21 – Video

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

WC-32-R1 (6-81) Page 5

Employers’ Exhibit No. 22 – Video Employers’ Exhibit No. 23 – Photo Employers’ Exhibit No. 24 – Photo Employers’ Exhibit No. 25 – Photo Employers’ Exhibit No. 26 – Photo Employers’ Exhibit No. 27 – Photo Employers’ Exhibit No. 28 – Video Employers’ Exhibit No. 29 – Video Employers’ Exhibit No. 30 – Video Employers’ Exhibit No. 31 – Photo Employers’ Exhibit No. 32 – Video Employers’ Exhibit No. 33 – Video Employers’ Exhibit No. 34 – Video Employers’ Exhibit No. 35 – Form 1099

FINDINGS OF FACT

Based on the review of the above exhibits and the testimony of the witnesses, I find the

following:

Claimant is 63 years old, has only a third grade elementary school education, and testified through a Spanish language interpreter that he does not speak English. On or about May 18, 2015, Mr. Rodas was on his knees pulling flooring at the Villa Bella Apartment complex in Kansas City, Kansas when he scraped his right knee on the floor causing abrasions and swelling. After four days of swelling and pain, Irving Simpson, who is the son of his supervisor Olivia Simpson, took him to the hospital where he was treated for an infection that eventually resulted in surgery, debridement of the right knee, and several days as an inpatient in the hospital. Mr. Rodas indicated he informed Ms. Simpson and another worker by the name of Fausto of his right knee injury on the day of the injury. He again informed his supervisor, Oliva Simpson, when the pain and swelling in his right knee increased and prior to going to the hospital. Mr. Rodas testified that Oliva Simpson responded with “do what you want because there is no insurance.” The Employer has denied the claim and has not paid any benefits.

Mr. Rodas testified that he was hired by The Carter Group located at 435 Nichols Road,

Kansas City, Jackson County, Missouri. Mr. Rodas testified that his job duties for the Carter Group included carpentry, roofing and anything having to do with remodeling. Mr. Rodas’ Claim for Compensation filed on August 17, 2015 list his employer as Villa Bella, LLC, at 110 Main St,. Kansas City, Missouri, 64105. Mr. Rodas’ Claim for Compensation filed on October 15, 2015 lists his employer as The Carter Group, 3933 Main Street, Kansas City, Missouri, 64111. Mr. Rodas testified he may have picked up other odd jobs on the side infrequently. Mr. Rodas’ Claim for Compensation filed on June 15, 2015 lists his employer as Villa Bella, LLC, at 110 Main, St. Kansas City, Missouri, 64105; The Carter Group, 3933 Main Street, Kansas City, Missouri, 64111; and Aandrea Carter, 3933 Main St,. Kansas City, Missouri, 64111. Ms. Aandrea Carter testified she is the sole owner of The Carter Group, Inc,, and Villa Bella, LLC, both of which she testified have never had any employees. Claimant introduced information from a website page from The Carter Group. Mr. Donigan testified that The Carter Group is a brokerage and does not have any real estate agents. Mr. Donigan testified that Villa Bella is a

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

WC-32-R1 (6-81) Page 6

landlord and that he acts as an asset manager performing as-needed services as an independent contractor. Mr. Donigan testified that he performed numerous activities for various entities owned by Ms. Carter including Villa Bella.

The Employers refused to produce any Internal Revenue Service (IRS) 1099-MISC forms

for Mr. Rodas that Mr. Donigan said existed in his deposition. (Ex. E, p. 33, lines 15-20.) Ms. Carter testified that Ms. Olivia Simpson is an independent contractor who works at

Villa Bella and that she finds workers for projects at Villa Bella. Ms. Carter testified that Mr. Rodas has never been at Villa Bella for a full year for any number of years. Mr. Rodas testified that the Carter Group had 22 to 25 employees. Mr. Rodas testified that his supervisor was Olivia Simpson and that she provided tools and job assignments. Employers’ Exhibit 35 includes a year 2015 1099 form for Roman Alberto Lozaya and Vitaliano Rodas.

Dr. Stuckmeyer testified that Mr. Rodas needed to be off work from May 18, 2015 to June 11, 2015, or 24 days. (Ex. C, p. 4.) Mr. Rodas testified he was off work from May 18, 2015 to June 11, 2015 due to his injury, surgery, and recovery and that he received no temporary disability benefits. The employer produced time records for June 13 and 17, 2015 indicating Mr. Rodas worked 45.5 hours and that Mr. Rodas and Elena Ramos both worked 54 hours the week of the 17th.

Mr. Rodas’ current complaints primarily involve chronic pain and loss of strength in his

right knee. According to his testimony, Mr. Rodas has limitations with standing, lifting, climbing, and running as a result of the May 18, 2015 work injury. He also cannot play soccer anymore, do any roofing, or hang sheetrock.

Dr. James Stuckmeyer testified that the abrasion on Mr. Rodas’ right knee while sanding

floors on or about May 18, 2015 was the cause and prevailing factor of the right knee work injury, the need for right knee surgery, and 30% permanent partial disability to the right knee. (Ex. F, p. 14, & Ex. C.) “…As result of the injury to the right knee, Mr. Rodas is having problems with prolonged standing, walking, kneeling, bending, and traversing steps.” ( Ex. C, p. 4). Mr. Rodas needs the ad lib ability to change positions. (Ex. F, p. 11.) Mr. Rodas is restricted from kneeling, squatting, and crawling. (Ex. F, p. 11.)

Mr. Rodas testified he worked 50-52 hours a week and Employer paid him $13.00 an

hour. Mr. Donigan testified Mr. Rodas worked for a temporary work agency. At the final hearing, the Employers further stated that Mr. Rodas did work for a couple of other corporations owned and operated by Aandrea Carter, El Castillo, LLC, and Villa Bella, LLC. Employers produced a 1099-Misc alleging Villa Bella, LLC, paid $10,609.00 to Mr. Rodas in 2015.

Mr. Rodas testified that he incurred medical bills of $36,725.52 represented by

Claimant’s Exhibits A and B, which Dr. Stuckmeyer testified were reasonable, necessary, and caused by the prevailing factor of the May 18, 2015 work injury. (Ex. C, p. 4; Ex. F, p. 7, lines 10-13). In addition, Mr. Rodas testified that these uncompensated bills of $36,725.52 were incurred as a result of his work injuries of May 18, 2015.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

WC-32-R1 (6-81) Page 7

Employers' surveillance photographs and videos, Employers’ Exhibits 10 through 34, show Claimant at a work site on May 17 and 18, 2016, almost a year after the accident, bending over to pick up tools and construction materials, carrying construction materials, swinging an ax or hoe to break up rough soil, and performing a multitude of manual labor movements.

Employers' Exhibits 3 and 4 are Claimant's time sheets that Claimant filled out for the

periods of Thursday, June 4, 2015 through Wednesday, June 10, 2015 and Thursday, June 11, 2015 through Wednesday, June 17, 2015 respectively. Employers’ Exhibit 9 is an IRS form 1096, which is a summary of 1099's submitted by The Carter Group for the tax year 2015. Exhibit 9 shows that The Carter Group had only four independent contractors, including Joel Donigan (accounting) and two law firms. Exhibit 9 indicates that Mr. Joel Donigan was paid $69,153.89. Mr. Joel Donigan performs financial accounting services on behalf of Villa Bella as well and testified that Villa Bella has no employees. Similarly, Mr. Donigan testified that The Carter Group has no employees, either.

RULINGS OF LAW

This case was complicated by the parties’ refusal to agree on any issues, the Employers’ refusal to provide relevant information on potential employees, and both parties’ failure to directly address significant parts of the statutes at issue in this case. Accordingly, the Division must address all issues. 1. Was the injury or occupational disease compensable under Chapter 287?

Section 287.020. RSMo. States in pertinent part:

. . . . 2. The word "accident" as used in this chapter shall mean an unexpected

traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

3. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. (5) The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

WC-32-R1 (6-81) Page 8

The evidence is uncontested that on or about May 18, 2015, Mr. Rodas was on his knees pulling flooring at the Villa Bella Apartment complex when he scraped his right knee on the floor causing abrasions and swelling. After four days of swelling and pain, he went to the hospital where he was treated for an infection that eventually resulted in surgery, debridement of the right knee. Mr. Rodas sustained an injury/accident under the law.

2. Was above employee an employee of above employer at time of alleged accident or

occupational disease?

Section 287.020. RSMo states:

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. RSMo states: The word "employer" as used in this chapter shall be construed to mean:

(1) Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay;

(3) Any of the above-defined employers must have five or more employees to be deemed an employer for the purposes of this chapter unless election is made to become subject to the provisions of this chapter as provided in subsection 2 of section 287.090, except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for the purposes of this chapter if they have one or more employees. …

The evidence is uncontested the Mr. Rodas was a handyman performing the demolishing, alteration or repair or improvements of floor at the Villa Bella Apartment Complex when he was injured. The evidence is uncontroverted that Mr. Rodas is not a real estate agent, nor does he fall under any other exemption to the law. The evidence also establishes that Villa Bella, LLC, had five employees including: Ms. Aandrea Carter, Joel Donigan, Olivia Simpson, Fausto and Vitaliano Rodas, Elena Ramos, Roman Aleberto Lozaya and others whom the Employers refused to provide documentation requested by the Claimant prior to the deposition of Mr. Donigan.

Next, we address whether Mr. Rodas is a statutory employee under Section 287.040.1 RSMo. The analysis of the statutory employer issues was addressed in McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473 (Mo 2009) where it states:

The statute provides that “[a]ny person who has work done under contract on or about his premises which is an operation of the usual business which he there

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

WC-32-R1 (6-81) Page 9

carries on shall be deemed an employer” and shall be fully liable under the Act. Sec. 287.040.1. The statute is designed to prevent employers from evading the Act's requirements by hiring independent contractors to perform work the employer otherwise would hire ordinary employees to perform. Bass, 911 S.W.2d at 619. It does so by defining the company that hires the independent contractor as a statutory employer. This allows an injured employee to recover workers' compensation from the company if injured, just as if the work had not been farmed out to an independent contractor. Huff v. Union Elec. Co., 598 S.W.2d 503, 511 (Mo.App.1980). The party asserting the existence of statutory employee status bears the burden of proving that the injured person was a statutory employee of the purported statutory employer. Martinez v. Nationwide Paper, 211 S.W.3d 111, 115 (Mo.App.2006). One is a statutory employee if (1) the work is performed pursuant to a contract, (2) the injury occurs on or about the premises of the alleged statutory employer and (3) the work is in the usual course of the alleged statutory employer's business. Bass, 911 S.W.2d at 619. The parties here agree that the first and second elements are satisfied. Therefore, the disposition of this appeal turns on application of the “usual business” element.

McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473 (Mo 2009) (1) The work is performed pursuant to a contract.

There is no factual dispute that Mr. Rodas was repairing floors at the Villa Bella apartment complex and being paid $13.00 per hour on May 18, 2015. These facts are evidence that Mr. Rodas’ work was performed pursuant to contract.

(2) The injury occurs on or about the premises of the alleged statutory employer.

There is no factual dispute that Mr. Rodas was injured repairing floors the Villa Bella apartment complex which is owned by Villa Bella, LLC, and that Villa Bella, LLC, is owned solely by Ms. Aandrea Carter.

(3) The work is in the usual course of the alleged statutory employer's business.

While the Employers in this case declare they don’t engage in construction and they don’t have employees, the evidence is uncontested and admitted that Mr. Rodas has been working as a handyman/construction worker for 6 years for the various business owned by Ms. Carter including Villa Bella, LLC. Ms. Carter testified that Ms. Olivia Simpson works at Villa Bella and that she finds workers for projects at Villa Bella. The evidence is that Villa Bella, LLC, and Aandrea Carter routinely are engaged in the erection, demolish, alter or repair improvements of property owned. Mr. Rodas was an employee of Villa Bella, LLC, and Aandrea Carter at the time of the alleged accident.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

WC-32-R1 (6-81) Page 10

Did employer receive proper notice? Mr. Rodas testified that he informed Oliva Simpson of his right knee injury on the day of

the injury. He again informed his supervisor, Oliva Simpson, when the pain and swelling in his right knee increased and prior to going to the hospital. Oliva Simpson responded with “do what you want because there is no insurance.” Ms. Carter attended the entire hearing and did not offer any evidence to contradict Mr. Rodas’ testimony. I find Employer had adequate notice of Mr. Rodas’ right knee injury. Average Weekly Wage

The Employers chose to dispute Mr. Rodas’ wage rate; however, it refused to provide information requested by Claimant’s counsel and did not refute any testimony by Mr. Rodas regarding his pay. The Employers did concede that Mr. Rodas did some work for it on an alleged contract basis. Employer offered no IRS W-2’s, 1099-MISC’s, or paystubs.

Mr. Rodas testified he worked 50-52 hours a week and Employer paid him $13.00 an

hour. Based upon the evidence, I find Mr. Rodas’ average weekly wage was $667.00 per week which would entitle him to the maximum benefit of $450.67 for TTD and PPD. Nature And Extent Of Employer Liability For Permanent Partial Disability

Mr. Rodas’ current complaints primarily involve chronic pain and loss of strength in his right knee. According to his testimony Mr. Rodas has limitations with standing, lifting, climbing, and running as a result of the May 18, 2015 work injury. I find Mr. Rodas credible.

Dr. James Stuckmeyer testified that the abrasion on Mr. Rodas’ right knee while sanding

floors on or about May 18, 2015 was the cause and prevailing factor of the right knee work injury, the need for right knee surgery, and 30% permanent partial disability to the right knee. (Ex. F, p. 14, & Ex. C.) “…As result of the injury to the right knee, [Mr. Rodas] is having problems with prolonged standing, walking, kneeling, bending, and traversing steps.” (Ex. C, p. 4.) Mr. Rodas needs the ad lib ability to change positions. (Ex. F, p. 11.) Mr. Rodas is restricted from kneeling, squatting, and crawling. (Ex. F, p. 11.)

Dr. Stuckmeyer’s testimony is uncontroverted since Employers had no rating or medical

report. I find Dr. Stuckmeyer credible.

Based on the medical testimony, records and reports, as well as the testimony of Mr. Rodas, I find that Mr. Rodas sustained 30% PPD at the 160-week level referable to the right knee. The total of compensation award is 48 weeks of compensation at $450.67 or $21,632.16. Employer Liability For Unpaid Medical Expenses

It is well-settled in Missouri that an award of past medical expenses is supported when

the record includes (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bills; and (3) testimony from the employee establishing the relationship between the bills and the disputed treatment. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. 1989).

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Vitaliano Rodas Injury No. 15-078084

WC-32-R1 (6-81) Page 11

Mr. Rodas testified that he incurred uncompensated medical bills of $36,725.52 represented by Employers’ Exhibits A and B, which Dr. Stuckmeyer testified were reasonable, necessary, and caused by the prevailing factor of the May 18, 2015 work injury. (Ex. C, p. 4; Ex. F, p. 7, lines 10-13.) In addition, Mr. Rodas testified that these uncompensated bills of $36,725.52 were incurred as a result of his work injuries of May 18, 2015. The medical records in support of each bill are in evidence. Goerlic v. TPF, Inc., 85 S.W.3d, 724, 732 (Mo App 2002); Martin v. Mid America Farm Line, Inc., 769 S.W.2d, 105 (Mo 1989). Based upon the evidence, the Villa Bella, LLC, and Ms. Aandrea Carter shall pay Rodas for his medical bills in the amount of $36,725.52. Liability For Unpaid Temporary Total Benefits

Section 287.149. 1. RSMo States: Temporary total disability or temporary partial disability benefits shall be paid throughout the rehabilitative process.

It is undisputed that no temporary total benefits were paid to Mr. Rodas. Dr. Stuckmeyer testified that Mr. Rodas needed to be off work from May 18, 2015 to June 11, 2015, or 24 days. (Ex. C, p. 4.) Dr. Stuckmeyer’s medical opinions are uncontroverted. Mr. Rodas testified he was off work from May 18, 2015 to June 11, 2015 due to his injury, surgery, and recovery.

An award of 3.4 weeks (24 days/7 days = 3.4 weeks) Temporary Total Disability (TTD) is hereby entered in favor of Mr. Rodas and computed as follows: 3.4 weeks x $450.67 maximum weekly TTD = $1,532.28.

CONCLUSION Villa Bella, LLC, and Aandrea Carter shall pay past medical aid not furnished by

Employers in the amount of $36,725.52 and $21,632.16 for 30% PPD to the right knee at the 160-week level; and Employers shall also pay unpaid temporary total disability in the amount of $1,532.28, equaling a total award of $59,889.96.

An award of 25 percent of all payments made pursuant to this award is allowed Mav

Mirfasihi, attorney for Mr. Rodas, for necessary legal services provided. Made by: _________________________________ Lawrence G. Rebman Administrative Law Judge Division of Workers’ Compensation