MWCC NO. 97-09160-G-0467

ALBERT FAULSTICH                                                                                                                        CLAIMANT

vs.

COLE CONSTRUCTION COMPANY, INC.                                                                                   EMPLOYER
AND
BUILDERS AND CONTRACTORS ASSOCIATION OF MS.                                                          CARRIER

REPRESENTING CLAIMANT:
Honorable Ron M. Feder, Attorney at Law, Gulfport, Mississippi

REPRESENTING DEFENDANTS:
Honorable Karen J. Young, Attorney at Law, Gulfport, Mississippi
 

The above styled cause came on for consideration by the Commission in the offices of the Mississippi, Workers' Compensation Commission in Jackson, Mississippi on Employer/Carrier's "Notice of Appeal".

Having thoroughly studied the record in this cause and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated August 16, 1999.

SO ORDERED, this the 11th day of April, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 97-09160-G-0467-C

ALBERT FAULSTICH                                                                                                                        CLAIMANT

vs.

COLE CONSTRUCTION COMPANY, INC.                                                                                   EMPLOYER
 

Appearing for the claimant, Honorable Ron M. Feder. attorney at law. Gulfport, Mississippi. Appearing for employer, Honorable Karen J. Young, attorney at law, the firm of Meadows. Riley, & Riley.

A hearing was held in Gulfport, Mississippi, on May 13, 1999, at 9:00 a.m. on the application of claimant, Albert Faulstich, for benefits under the provisions of the Mississippi Workers' Compensation Act, as amended, for an accidental injury that allegedly Occurred on or about December 11, 1996, within the course and scope of his employment by Cole Construction Company, Inc. Cole Construction Company, Inc. did not have in place workers' compensation insurance coverage at the time of the claimant's on-the-job accident.
 

Cole Construction Company, Inc. answered by way of general denial. Therefore, the following issues are presented for the administrative law Judge's consideration:

ISSUE 1: Whether an employer/employee relationship existed between Albert Faulstich and Cole construction Company, Inc.

ISSUE 2: Whether a work-related injury occurred on or about December 11, 1996.

ISSUE 3: Did alcohol intoxication proximately cause claimant's fall on December 11, 1996?

ISSUE 4: The amount of claimant's average weekly wage on December 11, 1996.

ISSUE 5: Existence/extent of total temporary disability attributable to the on-the-job injury.

ISSUE 6: Has claimant reached maximum medical improvement.

ISSUE 7: Existence/extent of permanent injury attributable to the on-the-job injury.

ISSUE 8: Existence/extent of industrial disability and/or loss of wage-earning capacity.

ISSUE 9: Reasonableness and necessity of certain medical treatment.

ISSUE 10: Penalties.
 

The claimant, Albert Faulstich, testified at the hearing that he completed the 9th grade, achieved a GED and has performed no other work other than construction and heavy labor-type of employment. Claimant further testified he was hired to work with Steven Muirhead and his crew of roofers exclusively for Cole Construction Company, Inc. Claimant also testified he was hired to work at $7.00 per hour and that he was paid in cash with no deductions taken from his pay. Claimant further testified that on December 11, 1996, he worked on a Cole Construction Company house until the noon lunch break. He then testified that he did certain work under the direct supervision of Martha Cole, the owner and operator of Cole Construction Company, Inc. Claimant further testified that after completing the work assignment under Martha Cole's supervision, claimant returned to complete the roofing project on the house he had previously begun working at the beginning of the work day. Claimant testified that "toe boards" were not used at the specific direction of Steven Muirhead. Claimant then testified that he fell from the roof injuring both hands.

Claimant testified he received no workers' compensation payments. either in the form of temporary total disability (TTD) payments or payment for medical treatment received. Claimant was initially treated at Memorial Hospital at Gulfport but could no longer afford to live in the Gulfport area or get medical treatment because of non-payment of his medical bills. Claimant returned to his family home in the New Orleans, Louisiana, and moved in with his sister. Claimant testified he continued medical treatment with Eric R. George, M.D., who could not complete the required treatments due to the employer's failure to pay any of claimant's medical bills. Claimant further testified that Dr. George has advised him that additional surgery must be undertaken, but only if the medical bills incurred are paid. Claimant further stated that since the date of the on-the-job accident through the date of the hearing, he has not received any TTD benefits, although he has done some odd jobs to earn money.

On cross-examination, claimant denied that he was a self-employed independent contractor or that he was intoxicated on December 11, 1996. Claimant submitted into evidence medical records of Dr. Eric George. Additionally, claimant submitted medical records of Dr. Tim Jackson, M.D., orthopaedic surgeon in Gulfport, Mississippi. Claimant also introduced medical records from Memorial Hospital at Gulfport and East Jefferson Hospital. All medical evidence was Introduced by affidavit. The medical evidence showed serious injuries sustained by claimant during the fall on December 11, 1996. Claimant fractured both wrists and, at present, has near total loss of industrial use of both hands. Because the claimant has not reached maximum medical improvement, the medical evidence does not permit conclusions to be drawn as to permanent impairment rating and/or permanent limitations and restrictions which demonstrate loss of industrial use or the claimant's total loss of wage-earning capacity.

The employer presented testimony of four (4) witnesses and Martha Cole, herself. Robert and Steven Muirhead both testified that they considered themselves independent contractors and that they considered the claimant, Albert Faulstich, to likewise be an Independent contractor. Robert and Steven Muirhead both testified, however, that everyone working on the roof worked under the direct supervision of Steven Muirhead. Both testified that Steven Muirhead determined rates of pay and assigned to the claimant all work to be done by him. Both Muirheads further testified that Steven Muirhead made decisions on safety rules, including the removal of workers from the work site if the worker was suspected to be under the influence of alcohol. Both Muirheads testified that the claimant drank often, but neither testified that Albert Faulstich consumed alcohol on the day in question or that lie was intoxicated or that he even demonstrated any behaviors suggestive of intoxication. No proof was offered that claimant's fall was proximately caused by the alleged intoxication.

Kirk Necaise testified that Steven Muirhead made key decisions on the work to be done, the workers to perform said work, and the conditions under which said work was to be done. Kirk Necaise attempted to give testimony that on the day in question the claimant purchased what appeared to be a quart of beer and consumed it during the lunch hour. On cross-examination, however, Mr. Necaise admitted that lie did not actually see the label on the bottle allegedly purchased by the claimant and that he had no evidence the beverage allegedly purchased was, in fact. beer. Mr. Necaise further testified that he was familiar with the behavior of persons under the influence of alcohol and that the claimant did not exhibit in his presence the characteristics of persons under the influence of alcohol.

The employer called Cleetis Evers who testified that, for a short period, he worked in the immediate vicinity of the claimant and detected a very strong smell of alcohol on his person. Mr. Evers further testified it was his opinion that claimant was intoxicated. Mr. Evers based his opinion on his personal observations and his long-standing familiarity with persons who were known to him to be intoxicated. He also based his opinion on the claimant's reputation for consuming large quantities of alcoholic beverages on a regular basis.

Employer, Martha Cole, testified that she had at one time maintained workers' compensation insurance coverage but dropped the coverage before claimant was injured on her work site. Martha Cole further testified she considered workers such as the claimant to be independent contractors and outside the scope of coverage under workers' compensation insurance and the Mississippi Workers' Compensation Act. Martha Cole testified, however, on the date in question, she went to Steven Muirhead's crew and directed the claimant to leave that work site to accompany her to another work site. Mrs. Cole testified that, although she smelled an odor of beer coming from the claimant, she admitted it could have come from a previous night's consumption of beer. Martha Cole did not provide any testimony supporting allegations that claimant was, in fact, intoxicated.

Transcripts of testimony previously given in depositions were put into evidence. None of the testimony supported the employers claims.
 

Having heard and considered all the evidence presented in this case, both oral and documentary, and based upon my judgment of the demeanor and credibility of the witnesses. and having studied the medical evidence and deposition testimony taken outside the hearing room, I find the following facts:

1. The average weekly wage of the claimant at the time of the injury was $280.00;

2. At the time of the accident, the claimant was an employee of Cole Construction Company, Inc. and that his injury occurred while performing duties in the course and scope of his employment with Cole Construction Company, Inc.;

3. That the relationship of employer/employee existed at the time of the accident;

4. That there is no credible proof that claimant was intoxicated and no proof whatsoever that intoxication was the proximate cause of claimant's fall and his injuries;

5. That the employer received reasonable notice of the on-the-job accident and injury to the claimant;

6. That the employer did not have workers' compensation insurance coverage on December 11, 19996, at the time claimant was injured, and that Cole Construction Company, Inc. was, therefore, a self-insured employer within the meaning of the Mississippi Workers' Compensation Act;

7. The defense of intoxication is not available to the employer as the totality of the evidence does not support a finding of intoxication, much less intoxication that proximately caused the claimant to fall from the roof, the absence of toe boards appears to be the proximate cause of the claimant's fall;

8. The claimant has not reached maximum medical recovery as of the date of the hearing;

9. The claimant should be compensated for all reasonable and necessary medical services and supplies incurred due to his injury and the process of his recovery as required by the Act;

10. Claimant is entitled to temporary total disability (TTD) payments in the amount of $186.48 per week; this amount is calculated based on evidence that claimant earned $7.00 per hour and worked approximately 40 hours per week, generating an average weekly wage of $280.00;

11. The claimant is entitled to penalties on all unpaid installments of compensation past due and owing.
 

IT IS, therefore, ORDERED AND ADJUDGED that the employer, Cole Construction Company, Inc., pay compensation and medical benefits as follows:

1. Pay for, furnish and provide to the claimant all reasonable and necessary medical services and supplies Incurred due to his injury and the process of his recovery as required by Mississippi Code, Annot., §71-3-15 (1972), as amended;

Pay to claimant temporary total disability (TTD) benefits at the rate of $186.48 per week from December 16, 1996 until the claimant reaches maximum medical recovery at some point in the future, pursuant to Mississippi Code, Annot., §71-3-17(b) (1972), as amended,

3. Pay to claimant penalties on all unpaid installments of compensation benefits past due and owing, pursuant to §71-3-37(5) (1972), as amended.

SO ORDERED AND ADJUDGED this the 16th day of August, 1999.

W.A. THORNTON
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary