Overley v. J. Stevens Construction, Inc., 081219 MIWC, 7323

Docket Nº:7323
Case Date:August 12, 2019
GLYNN ROOFING, Uninsured, MICHAEL ALLEN GLYNN, Uninsured and T & M TREE SERVICE, Uninsured. Form-C Respondents.
No. 7323
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Board of Magistrates
August 12, 2019
         The social security number and dates of birth have been redacted from this opinion.           Plaintiff – Joel A. Alpert (P27352)           Defendants – J. Stevens Construction and Michigan Insurance Company – John L. Ruedisueli (P41164)           Defendants – Quandel Construction Co. and Zurich American Insurance –Mark C. White (P55051)           All other Defendants and Form–C Respondents – None           OPINION & ORDER           David H. Williams, Magistrate (253 G) Judge.          TRIAL DATE(S):          Trial in this matter began on December 6, 2018. It continued December 7, 2018 and January 11, 2019 It was scheduled to resume on January 31, 2019 however due to closure of the State offices, did not proceed, being adjourned until March 4, 2019 which was adjourned again for medical reasons involving one of defense witnesses. Testimony and admission of evidence was completed March 22, 2019. The parties submitted Trial Briefs by May 17, 2019 at which point the case was submitted for decision.          CLAIM:          This case has a rather extensive and convoluted procedural history up to the point at which it was ready for and proceeded to trial. There were numerous and varied Applications for Hearing-Form A filed by Plaintiff against multiple entities and individuals. A good many of those were ultimately dismissed along the way prior to trial. Suffice it to say that even at that point there remained numerous defendants, only two of which had workers’ compensation insurance coverage, while the others, including the Form–C Respondents, were uninsured. None of those named entities or individuals personally appeared at trial or retained legal counsel to represent their respective interests in these proceedings.          The initial Application for Mediation or Hearing–Form A (“AFH-A”) was filed on October 26, 2015 and which named J. Stevens Construction as a “statutory employer”. Shortly thereafter, on November 12, 2015 additional AFHs-A were filed naming Muskegon Roofing Company, West Michigan Roofing, Raoul Alvarez and St. Joseph Mercy Health System on the same basis. Amended Applications for Mediation or Hearing–Form A were filed against all of the above-named parties on January 4, 2016, without reference to the same being statutory employers. Still later, on January 19, 2016 additional “Amended” Applications for Hearing-Form A were filed naming 3 more defendants: Trinity Senior Living Center, Marycrest Manor and Quandel Construction under the statutory employment theory. Wolf Lake Construction Co., LLC was also added to the ever-growing list of defendants about this same time by way of another AFH-A file by Plaintiff on January 28, 2016. An additional AFH-A was filed against St. Joseph Mercy Health System on February 24, 2016 which did not reference said entity as a statutory employer. Another AFH-A was filed by Plaintiff on July 22, 2106 which named “Raul Alvira” as a defendant-employer. Trinity Continuing Care Services was then brought into the case via yet one more AFH-A filed on August 15, 2016. An Amended AFH-A was filed against Raul Alvira on October 24, 2016. An additional party, “Jonathan Alviar” was then brought into the case pursuant to an AFH-A filed by Plaintiff on December 8, 2016. About a week later an Application for Mediation of Hearing – Form C was filed by Quandel Construction seeking a determination that it “. . . was not an employer of Justin Overley.” On December 27, 2016 another AFH-A was filed by Plaintiff naming William A. Bluhm as an employer from which benefits were being sought. On April 27, 2018 a further AFH-Form A was filed bringing in the State of Michigan Second Injury Fund as a party defendant alleging “Total and Permanent Disability”. On April 30, 2018 Applications for Hearing – Form C were filed by Defendants J. Stevens Construction and Michigan Insurance Company adding even more parties to the case. These included: Glynn Roofing, Michael Allen Glynn, Jr., and T & M Tree Service under the theory that one or more of them had “contracted with Justin Overley.”[1]          Numerous named Defendants were let out of this case prior to the start of trial. In an Order signed on December 21, 2016 West Michigan Roofing Company and Auto Owners Insurance Company were so Dismissed.2 The various Trinity Health related entities (Trinity Senior Living Center, Trinity Continuing Care Services, St. Joseph Mercy Health System and Trinity Health Michigan) were Dismissed by Order signed on January 25, 2018 (mailed February 10, 2018). The same was true with respect to as Plaintiff’s Application adding the State of Michigan–Second Injury Fund (Total & Permanent Disability Provisions) which was also Dismissed shortly prior to trial by Order signed October 15, 2018 (mailed October 31, 2018).          The essence of Plaintiff’s claim against the remaining Defendants was that he was employed by one (or more) of these entities/individuals when on July 28, 2015 he sustained severe and permanent injuries due to having fallen off a roof while working on a construction site in Livonia, Michigan. At least two (2) of these Defendants were claimed to have liability as so-called “statutory employers” inasmuch as other(s) in an allegedly sub-contract type situation were uninsured for workers’ compensation.          As for the underlying basis giving rise to the claimed disability Plaintiff alleged that the consequences of his falling off the roof resulted in paraplegia and other significant conditions involving his head, legs, internal injuries, neurological deficits and so forth. Vocational assistance was requested. An attorney fee on medical was also sought.          STIPULATIONS:          Only those parties which appeared via counsel were “present” for trial proceedings which commenced on Dec. 6, 2108. Same consisted of three in total: Plaintiff, Defendants J. Stevens Construction Company/Michigan Insurance Co. and Quandel Construction/ Zurich American Insurance Company. They were the only parties involved in the taking of Stipulations. As mentioned above, neither counsel for nor any representatives of the remaining Defendants as it related to Plaintiff’s Applications-Form A and/or Defendants’ Form C attended or otherwise participated in these proceedings.          The extent of matters Stipulated by Plaintiff and the two (2) above-referenced Defendants, J. Stevens/Michigan Insurance and Quandel/Zurich-American Insurance, were very limited in nature. Both left to proof whether they were subject to the Workers’ Compensation Act on the alleged date of injury (“DOI”). Both agreed that insurance coverage was afforded by the above-named carriers. Both denied that the “alleged” employee Overley was in their employ on the DOI and left to proofs whether a personal injury arose out of and in the course of such alleged employment on said date. The same held true with respect to the issue of whether the claimed disability was due to the alleged personal injury.          Notice was left to proofs, but both Defendants admitted the Plaintiff’s claim was made within the statutorily prescribed period. Since employment was denied there were no stipulations made as it concerned an average weekly wage, fringe benefits and the like. There was no dual employment claimed and all agreed that there were no alternative benefits paid by either Defendant and received by Plaintiff which would be subject to coordination under WDCA sections 354 or 358; MCL 418.354 and MCL 418.358. It was agreed that no workers’ compensation benefits were paid. Defendants agreed to Plaintiff having an IRS filing status of “single” and left to proofs whether any of his three (3) claimed minor children were “dependents”.          EXHIBITS:          Numerous documents and expert depositions were offered and admitted; either at the outset of trial or during presentation of witness testimony (which provided foundation for some to which objection was initially made, but later cured or the objection withdrawn) during...

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