JOHN D. JAMES, SSN: XXX-XX-XXXX, Plaintiff,
v.
FEHLIG BULDERS, LLC, UNINSURED, and BOULAND CONSTRUCTION COMPANY and ACCIDENT FUND INSURANCE COMPANY OF AMERICA, Defendants.
No. 7316
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Office of Administrative Hearings and Rules Worker’s Compensation Board of Magistrates
May 22, 2019
The
social security number and dates of birth have been redacted
from this opinion.
HEARING DATES: February 7, 2019, March 18, 2019.
For
Plaintiff: Peter Angelas (P41739)
For
Defendant Bouland: John Reilly (P49082)
OPINION ORDER
Jane
S. Colombo, Magistrate (252G) Judge.
STATEMENT
OF CLAIM
An
Application for Mediation or Hearing – Form A was filed
April 20, 2018 by John James (hereinafter
“plaintiff”) alleging a work related injury of
March 30, 2018 when he fell from a roof while working,
sustaining fractures to the skull, shoulder, ribs, closed
head injury, fractured vertebra and collapsed lungs that
caused, aggravated or accelerated work-related disability.
The application was filed against Fehlig Builders LLC,
(hereinafter Defendant #1) identified as plaintiff’s
employer, with no record of worker’s compensation
coverage. An Amended Application filed May 20, 2018
identified Bouland Construction Company and its carrier
Accident Fund National Insurance Company as the employer
(hereinafter Defendants #2), listed the same date of injury
and nature of disability. The applications claimed medical
and wage loss benefits, and all benefits available under the
Workers Disability Compensation Act.
Two
applications were filed in the matter against two entities,
Defendant #1 identified as Fehlig Builders, LLC and Jeff
Fehlig Construction, Inc., was uninsured according to the
Worker’s Compensation Agency’s records. The
amended application alleged the general contractor, Bouland
Construction Company, Defendants #2 was liable for payment of
worker’s compensation benefits pursuant to MCL 418.171
et seq. under a “shoot through” provision of the
WDCA. Defendant #1 was not represented by counsel, and did
not participate in the trial, except the owner Jeffrey Fehlig
testified on behalf of plaintiff at trial.
Applications
for Mediation or Hearing – Form B were filed Trinity
Health/St. Mary’s Hospital, Trinity Health, Pioneer
Specialty Hospital, Farmington Opco LLC (Medilodge of
Farmington Hills) and Moriah, Inc. doing business as
Eisenhower Center.
STIPULATIONS
The
stipulation sheet was filled out by plaintiff’s counsel
and counsel for Defendants #2 Bouland Construction Company.
Fehlig Builders did not fill out or prepare a stipulation
sheet, and did not participate in the trial except as noted
above.
The
parties- plaintiff and defendants #2- stipulated to timely
notice of personal injury and claim for compensation
benefits; it was stipulated defendant Bouland Construction
was insured by the Accident Fund. Left to proof was the
question whether the parties were subject to the Act,
coverage for Fehlig Builders, LLC, average weekly wage,
disability related to the alleged personal injury, a
connection between wage loss and the personal injury and a
retained wage earning capacity by plaintiff to any employment
suitable to his qualifications and training. Also left to
proofs was plaintiff’s IRS filing status, and
dependents. Defendant #2 denied plaintiff sustained a
personal injury arising out of and in the course of
employment, denied defendant Bouland employed plaintiff, and
denied fringe benefits, dual employment and compensation
rate.
The
back of the stipulation sheet identified plaintiff’s
witnesses as George Pushies, Jim Bernard, Casey Palmer, Ann
Pendley, Todd Byrnes, Jerry James, Jeff Fehlig, and Barb
Feldman. Casey Palmer, Todd Byrnes, and Ms. Feldman did not
testify at the hearing. Ms Feldman’s deposition was
admitted as Plaintiff’s Exhibit #1. Defendants’
witnesses were identified as Frank Myers and Terry Moore;
only Franklin Myers testified.
ISSUES
Plaintiff
alleged he was an employee of Fehlig Builders LLC, uninsured
employer, seeking worker’s compensation benefits from
the “general contractor,” identified as Bouland
Construction Company, pursuant to the provisions of MCL
418.171 et seq.
WITNESSES
TESTIFYING IN PERSON
For
Plaintiff: George Pushies, James Bernard, Jeffrey
Fehlig, Ann Pendley, and Gerald “Jerry” James.
For
Defendant: Franklin Myers.
EXHIBITS
ADMITTED
For
Plaintiff:
1.
Deposition testimony of Barbara Feldman, taken February 1,
2019
2.
Letters of guardianship, Oakland County Probate Court, May
23, 2018
3.
Medical records and bills from St. Mary’s Hospital,
March 30-April 25, 2018
4. St.
Mary’s physician bill; dates of service March 30 -
April 18, 2018
5.
Pioneer Specialty Hospital bills, dates of service
April14-23, 2018
6.
Medilodge of Farmington bills, dates of service June
21-August 3, 2018
7.
Eisenhower Center records, bills, November 15- December 31,
2018
8. Dr.
Glinski medical bill, date of service March 30, 2018
9.
Envision Medical Group bill, August 12- September 19, 2018
10.
Molina/Medicaid lien (Equian), March 30- July 12, 2018
11.
Photographs of plaintiff taken post-injury in the hospital
12.
MIOSHA report regarding Jeff Fehlig Builders, issued July 24,
2018
13.
MIOSHA report regarding Bouland, Inc, issued July 24, 2018
14.
Bouland records pertaining to project, i.e., plans,
contracts, bills, lists
15.
Bouland-Bernard contract, Cost Plus Fixed Fee Contract, May
1, 2017
16.
color photos of house and premises where injury occurred,
taken 4-10-18
17.
Health Education/ Discharge Report, dated February 12, 2019
18.
Eisenhower bills, January 1- February 8, 2019
For
Defendant:
A.
Deposition testimony of Andrew Nay, PhD, MA, taken March 8,
2019
B.
Correspondence, documents from Plymouth Rock Insurance, April
13, 2018
C.
Bouland “Bernard Foyer” items: plans, permits,
invoices, bills; May 1, 2017
D.
Fehlig-MIOSHA report; sworn statements, contracts attached,
including “Jeff Fehlig Builders” invoice;
“bill to Kim Bernard/Frank Bouland; total: $19,850.
E.
March 17, 2018 hand-written estimate from Fehlig
Construction, Inc to “Jim,” $19,875.
F.
Bouland-Bernard Cost Plus Fixed Fee Contract, dated May 1,
2017
H.
Handwritten statement from Todd Byrnes; invoice from Fehlig
Builders
REVIEW
OF WITNESS TESTIMONY
George
Pushies, senior safety officer for MIOSHA in the
Construction Safety Division, testified his job involves
investigating construction accidents. He was called to
investigate plaintiff’s incident on the date of injury,
March 30, 2018. The investigation included taking statements
from witnesses, speaking to the homeowner, the local police
department and reviewing documents and contracts between
Fehlig Builders and the general contractor Bouland
Construction Company. Shown plaintiff’s Exhibit #12,
Mr. Pushies identified the document as the case file,
consisting of the documents he reviewed and the report he
prepared based on that information, which he described as his
field narrative. He also obtained information from Frank
Myers from Bouland Construction.
Mr.
Pushies testified part of the investigation involved a
determination as to who is the employer and who is the
employee. The homeowner identified Bouland and Fehlig as the
two companies involved in the construction work. The document
reflects the permit for the construction job was pulled by
Bouland Construction; he was not aware of any permits pulled
by the homeowner, Mr. Bernard, or Fehlig Builders for any
work to be done on the property. He also reviewed contracts
between Bouland and Mr. Bernard pertaining to the work to be
done on the worksite.
Mr.
Pushies described the worksite as one involving multiple
employers controlled by a general contractor with
subcontractors also involved in the worksite. He...
