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Mitchell v. Winnfield Holding Corp.12/17/2003
judge also relied on the deposition of Lance Crappell, a CPA, who was payroll administrator for the Ben Johnson Educational Foundation. Attached to the deposition of Mr. Crappell was the Employment History Report for Mr. Mitchell. The report reflects two payments to Mr. Mitchell after the date of the accident. The first payment was on March 31, 2001 for $800.00 and the second payment was on April 27, 2001 for the reduced amount of $400.00. Mr. Mitchell testified one check was for work performed prior to the date of the accident and the other check was for work performed by his brother-in-law and his nephew on his behalf. There are no other payments after April 27, 2001. This document does not support the workers' compensation judge's conclusion that Mr. Mitchell continued to work for the Nurturing Nook on a regular basis after the date of the accident.
Additionally, testimony from Lance Crappell indicates the bookkeeping at the Ben Johnson Educational Foundation contained "some irregularities or potentially fraudulent activities. . . . he thing was losing so much money, and apparently had so many irregularities going on, that the board members of the Educational Foundation decided that it was not a venture that they wanted to continue, so they forced it to shut down." The workers' compensation judge completely disregarded Mr. Mitchell's testimony regarding his employment at the Nurturing Nook and instead relied on admittedly unreliable payroll information to deny Mr. Mitchell's claim for benefits.
The workers' compensation judge found Mr. Mitchell concealed his part-time job at the Nurturing Nook from Annette Robinson, claims manager for LWCC. It is not clear what benefit Mr. Mitchell would obtain by concealing his part-time employment at the Nurturing Nook from Ms. Robinson since he was entitled to have both part-time and full-time wages calculated in determining his benefits. The following exchange occurred between Ms. Robinson and Mr. Mitchell's attorney regarding his part-time employment:
A. Would you tell the Judge then when I first made demand do you recall in my - letter I said that - I told you that he was working at - at part-time employment? Tell the Judge what you did, if anything, to find out the nature of his work, the part-time employment, how much he was making and so forth.
A. I responded to your letter on March the 6th by way of letter advising you that we had received your letter of representation, that we were advised of the second job and to let you know that Mr. Mitchell had not recorded having worked a second job even though he was asked that question in his recorded statement. I requested any information for review that you might have on wages from the second job, asked you to submit that to me and we would be glad to review it and get back with you.
Q. Okay. But let me ask you what did you do to investigate? Did you contact the Nurturing Nook? This was Ben Johnson -
A. No, sir, I did not.
LWCC did not include the part-time wages in the calculation of benefits claiming they were unaware of Mr. Mitchell's job at Nurturing Nook. However, Jeff Darby, the vocational rehabilitation consultant hired by LWCC, was aware of Mr. Mitchell's part-time employment with Nurturing Nook in July 2001. Moreover, Mr. Mitchell knew Ben Johnson and knew Mr. Johnson owned both Winnfield Funeral Home and the Nurturing Nook. It is reasonable to conclude Mr. Mitchell believed the two companies were actually one and the same employer.
While LCWW claims it did not know about the part-time employment, Ms. Robinson testified even if she had known about the part-time employment, the workers' compensation statute, as she
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