BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G (1/21/2014) STANLEY SEAGLE, EMPLOYEE CLAIMANT

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G (1/21/2014) STANLEY SEAGLE, EMPLOYEE CLAIMANT JOLLY FARMS, LLC., UNINSURED EMPLOYER RESPONDENT OPINION FILED JUNE 16, 2015 Hearing before ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on April 10, 2015, at Forrest City, St. Francis County, Arkansas. Claimant represented by the HONORABLE ROBERT J. DONOVAN, Attorney at Law, Marianna, Arkansas. Respondent pro se. STATEMENT OF THE CASE A hearing was conducted in the above styled claim to determine the claimant s entitlement to workers compensation benefits. On January 26, 2015, a pre-hearing conference was conducted in this claim, from which a Pre-hearing Order of the same date was filed. The Pre-hearing Order reflects the issues to be addressed during the course of the hearing and the contentions of the parties relative to same. The Pre-hearing Order is herein designated a part of the record as Commission Exhibit #1. The testimony of Stanley Edward Seagle and Roger Brown along with documentary evidence comprise the record in this claim. DISCUSSION Stanley Edward Seagle, the claimant, with a date of birth of August 24, 1964, is a high school graduate with some post-secondary education. The claimant has a metal examiner s

2 certificate. The claimant has held his CDL since 1985, when he drove a truck for UPS while in college. Prior to working for respondent, the claimant worked for D & K Farms driving a truck sometimes. The claimant testified that he had been self-employed pretty much his whole life. The claimant raises horses on his farm. The claimant testified that he had been employed by respondent for approximately one (1) year at the time of his January 21, 2014, accident. The claimant maintains that he was employed by respondent as a truck driver, and was operating an eighteen-wheeler vehicle owned by respondent when he sustained injuries in a motor vehicle accident on January 21, The claimant asserts that the logo on the side of the truck was Jolly Farms. The claimant identified his employer as Roger Brown, the owner of Jolly Farms. The testimony of the claimant reflects that Mr. Brown wrote his check; that his arrangement with Mr. Brown was that he would receive twenty-five percent gross of what the load produced for the trucking company; that the only thing taken out of his check was a commission for the brokerage; and that Mr. Brown owned five (5) trucks. The claimant testified that he drove the same truck during his employment with respondent. The claimant testified that while he was aware that Mr. Brown has a farming operation, he never worked on the farm. The claimant denied that he ever hauled commodities that were generated on the farm of Mr. Brown. The testimony of the claimant reflects that the load he was carrying at the time of his accident was processed chicken meal out of Cullman, Alabama, which was to be delivered to Russellville, Arkansas. As far as securing loads for the truck that he operated, the claimant testified: 2

3 Roger has brokers he goes through and he brokers the truck and gives me twenty-five percent of what the load produces from point A to point B. (T. 8). The testimony of the claimant reflects that in addition to furnishing the vehicle, Mr. Brown provided the fuel, performed maintenance on the vehicle, provided any necessary equipment, and provided insurance on the vehicle. As far as providing direction on which route to take, the claimant noted that Mr. Brown utilized a computer, and the route information was passed along to the drivers. The claimant explained why he felt that Mr. Brown had the right to control the means and method by which he performed his job: Well, he calls me and tells me where to - - a load number and where to go pick up the product. (T. 10). The claimant further offered regarding taking a different route if directed to do so by Mr. Brown: Well, I m sure I would; it s his vehicle and he pays for the fuel. I have to do what he says. (T. 10). The claimant confirmed that it was his belief that Mr. Brown had the right to terminate his employment. The claimant testified that he did not have a written contract of employment with Mr. Brown, nor did he furnish any tools or equipment for the truck that he operated. Regarding the operation of Mr. Brown s businesses, the claimant s testimony reflects: He runs his trucking company out of his home, and he runs his farming operation out of his shop. (T. 13). The claimant added, regarding the operation site of the trucking business: Yes. As far as I know, that s where his computer is, where he brokers it and I get my check. (T. 14). The claimant testified that he is not familiar with the farming operation of Mr. Brown. The claimant denied that he ever worked on the farm of Mr. Brown, or that he ever hauled any of the 3

4 commodities from that farm. The claimant s testimony reflects that the trucks from Mr. Brown s trucking operation are kept on the farm premises. In discussing the specifics of the January 21, 2014, motor vehicle accident which serves as the basis for the present claim, the claimant testified: It happened in Memphis, Tennessee, the interchange from 240 to 40, coming into Arkansas. (T. 14). The claimant testified that Jolly Farms is located in the community around Wynne, Arkansas. Regarding the mechanics of the January 21, 2014, accident, the claimant continued: As I proceeded around the interchange, another vehicle hit the front of the truck and caused a loss of control. (T. 15). The claimant denied that he lost control of his vehicle: Well, no, I didn t lose control of it, the truck tipped over, the load shifted, the wind was blowing forty-five miles an hour. It s all in the police report. (T. 15). The testimony of the claimant reflects that he sustained injuries in the accident requiring medical treatment and a hospital admission of two and a half to three days. The claimant described the injuries from the accident: I had deep bruising thrombosis to both knees, eight broke ribs, a cracked wrist, a contusion on my head, and a few cuts and abrasions. (T. 16). During cross-examination, the claimant testified that he was not certain if the checks he received were written on the personal account of Mr. Brown or on the account of Jolly Farms. In terms of any settlement of the motor vehicle accident, the claimant testified: A portion of my medical expenses were paid through my insurance company through an uninsured motorist. (T. 17). 4

5 He testified that he did not consider himself a contact laborer of Jolly Farms, but rather: I consider myself working for Roger Brown for twenty-five percent of the load of a commercial truck lines. It would be a wage earner. When I went to work for you, I told you, I would like to receive a 1099 for my wages, would that be any problem? And you said, No. I said, Because I would like to be responsible for my own taxes, because I have my own farm and I can, you know, do with my taxes that way I see fit, instead of having the taxes withheld. (T. 18). The testimony of the claimant reflects that while respondent owns five (5) trucks, he does not know any of the other drivers personally, noting that they come and go. (T. 20). As far as the pay arrangements of the other drivers, the claimant offered: They re paid - - they re paid - - from the ones I talked to, it s twenty-five percent. That s standard of the load. If the load paid ten thousand, then, you d get twenty-five hundred, less the brokerage fee. (T. 20). Roger Brown testified that he is the owner of Jolly Farms, LLC, which is located in Wynne, Arkansas. Mr. Brown testified that Jolly Farms, LLC, is totally separate from Brown Brothers Farm. Mr. Brown s testimony reflects that the nature of the business Jolly Farms, LLC, is commercial haul: I find loads, I ask the drivers, Do you like this load or not? And most of the time, they like my choices, because I m trying to make us all money, and they accept or decline the load. Because sometimes the load might be going where they want to go? (sic) (T ). Mr. Brown confirmed that the payment to the drivers is twenty-five percent of the load. The testimony of Mr. Brown reflects that Jolly Farms own two (2) vehicles, however in January 2014: I m going to say three. It might have been - - it might have 5

6 four, but I m going to say three. (T. 23). Mr. Brown testified that there is one other employee of Jolly Farms, Nathaniel Kid, an OTR driver. Mr. Brown testified that Mr. Kid was situated differently from the claimant in that he had taxes withheld from his earnings whereas the claimant did not. Regarding the afore, Mr. Brown offered: I was under the impression that a 1099 meant that that was outside labor, and if I withhold taxes, then, he s a wage earner. (T. 24). Mr. Brown testified that he did not consider himself to be an employee of Jolly Farms, LLC. Mr. Brown acknowledged that at the time of the claimant s accident he did not have workers compensation insurance in place. The testimony of Mr. Brown reflects that he secured workers compensation insurance for Jolly Farms, LLC, after the claimant s accident. Regarding the afore, Mr. Brown testified: I was under the impression, because of years in a family farm business that the requirements were, as long as I stayed under four employees, I did not - - was not required to have it. The law had changed in the past fifteen years and I didn t know it. And so, ignorance of the law. (T ). Mr. Brown does not dispute that the vehicle that the claimant was operating on January 21, 2014, which was involved in the motor vehicle accident was owned by Jolly Farms, LLC. Mr. Brown testified that the afore vehicle was totaled and has not been replaced. Mr. Brown does not dispute that the claimant suffered injuries in the January 21, 2014, motor vehicle accident. The testimony of Mr. Brown reflects: Yes. Once the accident occurred I contacted my insurance company to see if they would cover it. They will cover it if it s not 6

7 my driver s fault. If it was the driver s fault, the uninsured motorist does not pick up. So, I helped Mr. Stanley get the collision changed from a driver error to a hit and run. And from that point on, it was a waiting process to get - - to let the insurance company- - my insurance company pay. During that waiting process, these proceedings started, plus my insurance company quit pursuing it, because his insurance company, State Farm, told my insurance company they settled, covered medical bills, plus paid him a lump sum on - - outside of that, is what my insurance company told me. So, I thought the matter was settled as far as the medical and medical bills. (T ). After a thorough consideration of all of the evidence in this record, to include the testimony of the witnesses, review of the documentary evidence, application of the appropriate statutory provisions and applicable case law, I make the following: FINDINGS 1. On January 21, 2014, the nature of the business of respondent was that of commercial hauling in which it employed three (3) or more employees regularly in the course of business, pursuant to Ark. Code Ann (11)(A). The Arkansas Workers Compensation Commission has jurisdiction of this claim. 2. On January 21, 2014, the respondent did not have in place a policy of workers compensation insurance, nor was it an authorized self-insured employer pursuant to Ark. Code Ann On January 21, 2014, the employment relationship existed between the claimant and the respondent, when the claimant sustained injuries arising out of and in the course of his employment. 7

8 4. The claimant is entitled to the payment of temporary total disability benefits, at the appropriate compensation benefit rate, for the period commencing January 22, 2014, and continuing through the end of his healing period or until such time as he is released to return to suitable employment by his treating physician. 5. The issues of the duration of the claimant s period of temporary total disability and permanency are reserved. 6. The respondent shall pay all reasonable hospital and medical expenses arising out of the compensable injury of January 21, The respondent has controverted this claim in its entirety. CONCLUSIONS The claimant asserts that while within the course and scope of his employment with respondent he suffered injuries in a motor vehicle accident on January 21, 2014, which required medical treatment and rendered his temporarily totally disable for a period of time. The claimant seeks corresponding workers compensation benefits as well as controverted attorney fees. The respondent takes the position that the claimant was not an employee of same at the time of the January 21, 2014, accident. The present claim is one governed by the provisions of Act 796 of 1993, in that the claimant asserts entitlement to workers compensation benefits as a result of an injury having been sustained subsequent to the effective of the afore provisions. Jurisdiction/Compensability Ark. Code Ann (Repl. 2012) provides in pertinent part: (11) Employment means: 8

9 (A) Every employment in the state in which three (3) or more employees are regularly employed by the same employer in the course of business except: (iii) Agricultural farm labor[.] In the present claim it is undisputed that the nature of the business of respondent is that of commercial hauling. In determining whether an employment is excluded pursuant to the above statutory provision, Arkansas courts have placed greater emphasis on the nature and character of the employer s business rather than the character of the particular task being performed by the claimant when the injury occurred. Griffith v. International Cattle Embryo, Inc., 23 Ark. App. 58, 742 S.W.2d 124 (1988). Contrary to the name, respondent is a completely separate business from Brown Brothers Farms. The evidence preponderates that respondent owned three (3) to four (4) vehicles, each of which was operated by a driver with a CDL, who was paid 25% of the load produced from the truck; that respondent secured the load; that respondent furnished fuel, insurance and equipment for the vehicle; and provided direction for the route taken by the driver in delivering the load. The claimant was transporting a load from Cullman, Alabama to Russellville, Arkansas at the time he sustained injuries in a motor vehicle accident in Memphis, Tennessee. The owner of respondent acknowledged that the operation of same did not entail employment in agricultural farm labor. The evidence preponderates that the claimant was not engaged in agricultural farm labor at the time of his January 21, 2014, injury. Indeed, respondent is not engaged in agricultural farm labor, but rather is a commercial hauler. As noted above, respondent supplied the vehicle, fuel, loads, direction, equipment to the claimant. Respondent had the right to terminate the employment of the claimant. The evidence 9

10 preponderates that the claimant was an employee of respondent at the time of the January 21, 2014, motor vehicle accident. The respondent has controverted this claim in its entirety. Medical Treatment Ark. Code Ann (a) (Repl. 2012), mandates that the employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employer. What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Engineering Co., 66 Ark. App. App. 201, 989 S.W.2d 543 (1999). The injured employee must prove that medical services are reasonably necessary by a preponderance of the evidence. The afore services may include that necessary to accurately diagnose the nature and extent of the compensable injury; to reduce or alleviate symptoms resulting from the compensable injury; to maintain the level of healing achieved; or to prevent further deterioration of the damage produced by the compensable injury. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex Hydrophonics Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). There is not a dispute that the claimant suffered injuries in the January 21, 2014, accident, resulting in a three (3) to four (4) day hospital admission. The claimant described the nature of the injuries that he incurred in the January 21, 2014, accident. The reasonableness and the necessity of the medical treatment is not disputed. Respondent has controverted the compensability of this claim in its entirety. AWARD The respondent is herein ordered and directed to pay all reasonably necessary medical, nursing, hospital, and other apparatus expenses, to include medical related milage, growing out 10

11 of and in connection with January 21, 2014, compensable injury. awarded. Maximum attorney fees are herein awarded on the controverted indemnity benefits herein The respondent is further ordered and direct to pay the bill of the court reporter within thirty (30) days of submission. until paid. This award shall bear interest at the legal rate pursuant to Ark. Code Ann , IT IS SO ORDERED. Andrew L. Blood, ADMINISTRATIVE LAW JUDGE 11

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