S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET #

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1 HOWARD ROBINSON, PLAINTIFF, 1998 ACO #380 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # J. C. BUILDING CORPORATION, II AND THE MARYLAND INSURANCE GROUP (ASSURANCE COMPANY OF AMERICA), BULLDOG BUILDERS, UNINSURED, OJACON, UNINSURED. DEFENDANTS. APPEAL FROM MAGISTRATE NOWINSKI. GARY M. BUSCH FOR PLAINTIFF, ALAN J. GERBAUER FOR DEFENDANTS J. C. BUILDING CORPORATION, II AND THE MARYLAND INSURANCE GROUP (ASURANCE CMPANY OF AMERICA). SKOPPEK, COMMISSIONER OPINION Plaintiff appeals the decision of Magistrate David W. Nowinski, mailed November 5, 1996, denying his application for compensation benefits against defendant employer J. C. Building Corporation, II as an alleged statutory employer under Section 171 of the Act. Plaintiff filed a claim for wage loss and medical benefits against three separate employing entities, including J. C. Building (a construction company), Bulldog Builders (a subcontractor with principal Bill Biedron) and Ojacon (a subcontractor with principal Jeff Allen), stemming from an accident suffered on October 5, The claim against the latter two entities, both uninsured, was dismissed without prejudice due to plaintiff s failure to achieve service against either one. The claim against J. C. Building was denied on the merits, due to plaintiff s failure to show that the accident occurred at one of its construction sites. We have no choice but to affirm the magistrate s holding. The facts in this case were summarized by the magistrate as follows: Mr. Robinson [plaintiff] was hired by Mr. Allen to work as a general laborer. Mr. Allen was engaged in construction of single family residences. It appears that Mr. Allen s crews worked on one home site for J. C. Building Corporation Inc. and that they worked on other building sites for other builders.

2 Mr. Allen hired Mr. Robinson on September 30, Mr. Robinson worked as a laborer. He picked up walls which were already built by the carpenters. He lifted trusses. He cut wood. He piled wood. Mr. Robinson worked at three different sites for Mr. Allen. At one of the sites, there was a truck from J. C. Building. On October 5, 1994, Mr. Robinson was cutting wood at one site. Mr. Allen came to that site, and took the entire crew to another site to lift walls. One of the walls was mishandled, and it fell on top of Mr. Robinson and a couple of other workers. Mr. Robinson sustained injuries including a broken collarbone. Unfortunately, according to the records of the Bureau of Workers Disability Compensation, Mr. Allen was not insured at the time of this accident. J. C. Building Corporation did carry workers compensation insurance, and, therefore, could be held liable for Mr. Robinson s injury if the Plaintiff was able to satisfactorily demonstrate that he was working on a J. C. Building Corporation site when he was injured. The magistrate held that plaintiff did not carry his burden of proving by a preponderance of the evidence that he was working on a J. C. Building site when he was injured. Therefore, plaintiff was not entitled to recover benefits from J. C. Building: However, Mr. Robinson [plaintiff] has not carried his burden of proof in this matter. The evidence demonstrates that he was working for Mr. Allen. Mr. Allen was working on a number of residential homesites in this area. He was only performing work for J. C. Building on one homesite. Mr. Robinson acknowledged that he saw a J. C. Building Corporation truck at only one homesite, and it was not the homesite at which he was injured. The Plaintiff has not demonstrated that he was performing services on a job for which J. C. Building was the general contractor when he was actually injured. He may have worked on a J. C. Building Corporation site earlier in the day, but he was not injured while working on a J. C. Building Corporation site. The medical records in this case demonstrate that some other entity, at first, admitted responsibility for payment of medical treatment. Consequently, I do not believe that J. C. Building can be held liable as a statutory employer in this case. The claim against J. C. Building Corporation is denied. On appeal, plaintiff argues that the magistrate incorrectly ruled that defendant is not the statutory employer as a matter of law. A careful examination of the issue before us reveals, however, that the true question is one of fact, and as such, it must be evaluated by this Commission utilizing our Section 861a(3) standard of review. We must affirm the magistrate s decision, if his determination that plaintiff failed to meet his burden of showing that he was injured at a J. C. Building site is supported by competent, material, and substantial evidence on the whole record. 2

3 Section 171(1) holds a general contractor liable for injuries sustained by employees of uninsured subcontractors, when such injuries occur in work performed for the general contractor. The magistrate quite properly made it clear in his opinion that plaintiff needed to prove, by a preponderance of the evidence, that his injury occurred at a home project site owned and/or controlled by J. C. Building, in order for this subsection to become operational. A review of the proceedings in this case suggests that plaintiff was inadequately prepared for this essential proof requirement. Because plaintiff failed to present any persuasive proof that his injury occurred at a J. C. Building home site, J. C. Building cannot be held liable under any section of the statute for benefits. The record in this case is in fact totally devoid of any competent proof as to where plaintiff was injured. While plaintiff did testify that he saw a J. C. Homes truck at one of the three sites he worked at, 1 that site was not proven to be the site where plaintiff suffered his injury. 2 Plaintiff mentioned several times that he believed the sites Jeff Allen worked on were all J. C. Building home sites, but this remained unsubstantiated hearsay in the trial transcript. 3 Further, plaintiff s attorney made no attempt to call Jeff Allen or Bill Bierdon to the stand so as to identify the home site where plaintiff was injured. This would have enabled plaintiff to show whether or not this home site was in fact a J. C. Building home site. Likewise, had plaintiff identified the address where he was injured or taken a picture of the accident site, and offered testimony to show that this location was a J. C. Building home site, such evidence would have gone a long way towards proving the liability of J. C. Building for plaintiff s injury. However, plaintiff offered no such evidence. Mr. Terry Luxton was called as a representative of J. C. Building to testify regarding plaintiff s claim. Mr. Luxton admitted that plaintiff was a member of Jeff Allen s work crew, and that Jeff Allen did in fact work on at least two J. C. Building home sites. 4 However, Mr. Luxton testified that he knew nothing of plaintiff s accident. Further, Mr. Luxton indicated that any and all accidents that occur on the job are to be reported to J. C. Building, 5 but no such report was made in this case. 6 In other words, although Mr. Luxton admitted that plaintiff did work on one J. C. Building home site, that was not the site where plaintiff suffered his injury. Mr. Luxton s testimony does not aid plaintiff in any way, in his attempt to prove he was injured at a J. C. Building home site. 1 Trial transcript, pg. 12, Id. at Id. at 6, 13-16, Id. at Id. at Id. at 39. 3

4 The record amply supports the magistrate s conclusion that plaintiff was employed by Jeff Allen. MCL a(3). In order to shift liability to J. C. Building under Section 171, it was therefore essential for plaintiff to present some type of competent evidence demonstrating that he was hurt on a J. C. Building site. The magistrate found, and the record certainly supports him, that plaintiff failed to make this showing. No competent testimony was given on plaintiff s behalf to show that Jeff Allen worked exclusively for J. C. Building, or that plaintiff s injury occurred while working at defendant s site. The magistrate properly ruled that J. C. Building was not shown to be plaintiff s Section 171 statutory employer at the time of injury. Commissioners Witte and Leslie concur. Jürgen Skoppek Joy L. Witte Richard B. Leslie Commissioners 4

5 HOWARD ROBINSON, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # J. C. BUILDING CORPORATION, II AND THE MARYLAND INSURANCE GROUP (ASSURANCE COMPANY OF AMERICA), BULLDOG BUILDERS, UNINSURED, OJACON, UNINSURED. DEFENDANTS. This cause came before the Appellate Commission on appeal by plaintiff, from the decision of Magistrate David W. Nowinski, mailed November 5, The Commission has considered the record and briefs of counsel, and believes that the magistrate's decision should be affirmed. Therefore, IT IS ORDERED that the decision of the magistrate is affirmed. Jürgen Skoppek Joy L. Witte Richard B. Leslie Commissioners