Chris H. Murdock SSN: XXX-XX-XXXX PLAINTIFF,
v.
Kalamazoo Pallet, LLC/ Guarantee Insurance Company/ Michigan Property & Casualty Guaranty Association, DEFENDANTS.
No. 7317
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Office of Administrative Hearings And Rules Workers’ Compensation Board of Magistrates
June 26, 2019
The
social security number and dates of birth have been redacted
from this opinion.
Garrett J. Tenhave-Chapman (P44604) for Plaintiff.
Brian
R. Fleming (P59578) for Defendants.
AMENDED OPINION
CHRIS
D. SLATER, MAGISTRATE #245G JUDGE.
CASE
SUMMARY
Procedural
History
This
matter commenced with an Application for Mediation or Hearing
- Form C filed by Attorney Randall R. Grit on behalf of
Kalamazoo Pallet, LLC which “requests a judicial
determination regarding liability/compensability/dependency
and any other issues that could arise pursuant to the
Worker’s (sic) Compensation Act resultant from the
August 1, 2017 event and subsequent death of Mr.
Murdock.” This Application was received by the Agency
on November 13, 2017.
[1]
The
Agency file also contains an Application for Mediation or
Hearing – Form A filed by Attorney Garrett J.
Tenhave-Chapman on behalf of Christopher H. Murdock
(deceased) by Personal Representative Jill Mattimore (the
“Plaintiff”) against Kalamazoo Pallett, LLC. The
Application alleges that on August 1, 2017 Plaintiff was at
work when a tire exploded, resulting in Mr. Murdock’s
death. All benefits available under the Workers’
Disability Compensation Act were requested. The Application
was received by the Agency on April 30, 2018.
The
Agency file also contains an Appearance & Answer and
Carrier’s Response filed by Attorney Brian R. Fleming
on behalf of Kalamazoo Pallet LLC, Guarantee Insurance
Company (Insolvent) and Michigan Property & Casualty
Guaranty Association. These responsive pleadings set forth
general and standard answers and affirmative defenses, and
they were received by the Agency on May 18, 2018.
The
Agency file also contains an Amended Application for
Mediation or Hearing – Form A filed by Mr.
Tenhave-Chapman which recites the prior allegations of the
events leading up to Mr. Murdock’s death. It also
apparently seeks a ruling on whether Jill Mattimore is a
dependent pursuant to MCL 418.353 (1) (b) and West v
Barton-Malow Co., 394 Mich. 334, 230 N.W. 2
nd
545 (1975); whether Laci Murdock is a dependent pursuant to
MCL 418.353 (1) (a); and whether Caleb and Christopher
Murdock are dependents pursuant to MCL 418.353 (1) (b). It
also requests a ruling on whether an employer-employee
relationship existed between Mr. Murdock and Defendant under
the WDCA. This Application was received by the Agency on
November 13, 2018.
The
Agency file also contains an Amended Appearance & Answer
and Amended Carrier’s Response filed by Mr. Fleming on
behalf of Kalamazoo Pallet LLC, Guarantee Insurance Company
(Insolvent) and Michigan Property & Casualty Guaranty
Association. These pleadings were received by the Agency on
November 30, 2018.
This
matter came before me for trial in the Kalamazoo Agency on
April 24, 2019. Only two specific issues were presented to me
for decision. A tangential issue preserved was a potential
award of reasonable and necessary medical benefits consistent
with my ruling on the specific issues presented. Post-trial
briefs were accepted into evidence on May 15, 2019, and the
record was closed on that date. This started the 42-day
deadline for me to issue this decision.
DATES
OF TRIAL
April
24, 2019
May 15,
2019
STIPULATIONS
The
parties entered into the following stipulations with respect
to the August 1, 2017 alleged date of injury contingent upon
a finding at Trial that an employer-employee relationship has
been established at Trial. To the extent that I do not make
this finding, Mr. Tenhave-Chapman did not want any of these
stipulations to be somehow inadvertently binding and
determinative of this issue. This was agreed to by both
attorneys. To the extent that I do not find an
employee-employer relationship exists, the claim will be
denied, and these subject stipulations will be moot. With
that being said, the following issues were stipulated to:
1. That the parties were subject to the Act.
2. That the insurance carrier carried the risk.
3. That a personal injury arose out of and in the course of
employment.
4. That the employer had timely notice of the alleged
personal injury.
5. That a timely claim for compensation was made.
6. That the average weekly wage excluding fringe benefits was
$578.77 and that there were no fringe benefits. The
appropriate compensation rate is determined to be the minimum
survivor benefit $482.81 per week.
7. That Plaintiff was not engaged in dual employment.
8. That Plaintiff was not paid benefits listed in Section 354
or 358 of the Act that are subject to coordination.
9. That Plaintiff was not paid weekly workers’
compensation benefits.
10. That the claimed disability is due to the alleged
personal injury.
11. That there is a connection between wage loss and the
personal injury.
12. That Plaintiff’s IRS tax filing status is
single/head of household.
Therefore,
the issues left for my decision are as follows:
ISSUES
TO BE ADDRESSED
1.
Whether the Defendant employed the Plaintiff.
2.
Whether there are dependents.
SUMMARY
OF RULINGS ON EACH ISSUE
1. I
find that an employer-employee relationship existed between
Mr. Murdock and Kalamazoo Pallet, LLC at the time of his
death. Therefore, benefits afforded under the WDCA are the
exclusive remedy of any potential claimant pursuant to
Section 131 of the WDCA.
2. Laci
Murdock is a whole dependent of Mr. Murdock pursuant to
Section 331 of the WDCA, thereby entitled to the whole death
benefit of $482.81 per week. No other potential dependent has
any claim for death benefits.
LAY
WITNESSES
Plaintiff:
John Breslin (called as an Adverse Witness). Christopher
James (“C.J.”) Murdock. Jill Mattimore
Defendants:
John Breslin
EXHIBITS
Plaintiff
1.
Letters of Authority for Co-Personal Representatives.
2. Life
EMS Ambulance Bill.
3.
Forensic Pathology Report with Toxicology Results dated
August 2, 2017.
4.
Payment Documents including Adjustment Register and Checks.
5.
Birth Certificate for Laci Sue Murdock.
6.
Holiday Inn Express Pay Summary.
7. Mr.
Murdock’s Partial Timecards.
8.
Plaintiff’s Post-Trial Brief.
Defendants
A. UIA
Quarterly Wage/Tax Report.
B. Mr.
Murdock’s 2017 W-2.
C.
Employer’s Basic Report of Injury.
D.
Defendant’s Post-Trial Brief.
All of
the exhibits were admitted into evidence. Mr. Fleming noted
an objection to Plaintiff’s Exhibit
2 in that he would not stipulate that the bill
had been presented for payment and/or improperly denied.
SUMMARY
OF EVIDENCE
Lay
Testimony
Plaintiff
John
Breslin
Mr.
Tenhave-Chapman called John Breslin as an Adverse Witness for
Plaintiff. Mr. Breslin has been a partner/owner of Defendant
for approximately 30 years. In addition to managing the
business, he characterized his job functions as being a
“working” partner. To this end, he supervises
those individuals working under him and, when necessary,
performs actual workplace tasks with others who work for him.
Mr.
Breslin later explained that Kalamazoo Pallett was in the
business of constructing and recycling pallets. This involved
picking up old or damaged pallets from customers as well as
delivering new or refurbished ones. The pallets were
delivered or picked up by trucks using trailers. The trailers
would oftentimes be left with the customers. Once the trailer
was filled up with pallets, Defendant would be notified to
come and pick up the trailer. These trailers were required by
state law to have annual...
