September 2, 2011 201092018

 

 

 

OPINION ENTERED:  SEPTEMBER 2, 2011

 

 

CLAIM NO. 201092018

 

 

DONALD DODD                                    PETITIONER

 

 

 

VS.         APPEAL FROM HON. DOUGLAS W. GOTT,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

JEDA HOMES, LLC,

D & D ROOFING,

KENTUCKY EMPLOYERS\' MUTUAL INSURANCE,

and HON. DOUGLAS W. GOTT,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman; COWDEN and STIVERS, Members. 

 

ALVEY, Chairman.   Donald Dodd (“Dodd”) seeks review of the decision rendered March 1, 2011 by Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”), dismissing his claim against JEDA Homes, LLC (“JEDA”), D & D Roofing (“D & D”), and Kentucky Employers’ Mutual Insurance (“KEMI”). No petition for reconsideration was filed.

On appeal, Dodd argues the following:

Mr. Dodd purchased workers’ compensation coverage for D & D Roofing and D & G Roofing, but excluded himself on the coverage.  While Mr. Dodd may have been a partner in the roofing businesses, he was also an employee and the primary worker.  Neither of his roofing businesses had any additional employees or workers besides the partners.  If Mr. Dodd was not covered under the coverage, then what was he paying for?  Jeda is liable for Mr. Dodd’s injuries as an up-the-ladder employer.

 

 We affirm.

          Dodd testified by deposition on October 4, 2010.  No hearing was held, and the claim was submitted by the parties for a decision on the record.  Dodd is a resident of Kevil, Kentucky.  Dodd testified he sustained injuries to his right ankle and knee on January 18, 2010 when he slipped on plastic used to cover lumber for another sub-contractor at the site.  He subsequently underwent surgeries to both his right ankle and his right knee, and has not returned to work since the date of the accident.

          Dodd has a GED, and served in the Navy from 1970 to 1973.  After discharge from the Navy, Dodd worked for a roofer until 1980 where he learned the trade.  In 1980, he began operating his own roofing business under the name of Donald Dodd Roofing.  In 1995 Dodd’s stepson joined him in the roofing business, and he began operating under the name D & G Roofing.  Dodd also operated a roofing company with his brother under the name of D & D Roofing.  On the date of the accident, Dodd was working with his stepson.  D & G Roofing was never joined as a party to this claim.

          Dodd testified roofers are paid by the square or three bundles of shingles.  The steepness of the roof is taken into consideration in the calculation of the payment.  JEDA was one of several companies for whom Dodd, D & D, or D & G performed roofing work.  Dodd testified JEDA provided the materials, but he used his own tools.  Dodd hired employees to assist him as needed.  Dodd did not have to arrive at the worksite at any particular time.  Dodd did not have to work a certain number of hours per day and he could take breaks as needed.  Dodd did not wear any uniform items identifying him as working for JEDA.  Dodd’s truck had a sign bearing the name D & G Roofing.  Dodd’s business cards designated him as being with D & G Roofing.  In order to perform roofing jobs for JEDA, Dodd had to provide proof of workers’ compensation and liability insurance, which he obtained through Calvert City Insurance.  The workers’ compensation coverage was through KEMI.

          Charles Thompson, JEDA’s owner, testified by deposition on September 1, 2010.  Thompson testified JEDA operates a home building and remodeling business, and has no employees.  All work, including roofing, is contracted.  Dodd’s businesses were not the only roofers used by JEDA.  Thompson testified Dodd had no direct supervision and he was provided the address and amount of shingles to be used.  Dodd had no specific time to start or stop work. JEDA supplied neither tools nor ladders, but provided the roofing materials necessary for the job.  Dodd did not wear any apparel indicating he was affiliated with JEDA.  No signage was provided to Dodd by JEDA.  JEDA had no control over whether Dodd hired employees or additional contractors to complete the job.  Dodd was paid by the job or square.  No taxes were withheld in payments made to Dodd.  Dodd, or the companies he owned, received 1099’s at the end of the year.  Dodd performed work for other builders.  Dodd provided proof of workers’ compensation and liability insurance coverage for D & D, and D & G.  Thompson testified Dodd was a sub-contractor, not an employee.

          Attached to the Form 101 – Application for Resolution of Injury Claim, were 1099’s for Donald Dodd dba D & D Roofing, Donald Dodd D & G Roofing, and D & D Roofing from various sources ostensibly to establish Dodd’s income.  Also introduced into evidence was the insurance policy with KEMI issued to Donald Dodd & Dale Chandler dba D & D Roofing.  The endorsement attached with that policy for the applicable time period, March 5, 2009 through March 5, 2010, specifically excludes both Donald Dodd and Dale Chandler from coverage. 

          In the opinion and order, the ALJ found as follows:

KEMI’S MOTION TO DISMISS

 

KEMI has filed a motion to dismiss, but its motion is more accurately considered as a request for a declaratory judgment that its policy issued to D&D Homes [sic] does not provide coverage to Donald Dodd for his claimed work injury.

 

KEMI’S first argument is that Dodd and his partner/co-policy holder, Dale Chandler, did not intend to cover themselves with the KEMI policy.  KEMI cites the following statement in the initial “Quik App”: “D&D is a partnership.  They [sic] have acted as one for a while, but did not purchase Workers Comp due to no employees.  They [sic] are purchasing now to satisfy contractors and customers.  They [sic] do not plan to have other employees and expect premium to change to minimum clerical at audit.” 

 

KEMI further cites to the “General Information” questionnaire to the “Quik App” stating that no work would be done above 15 feet, while most any roofing work the two men could expect to do is done above 15 feet.

 

KEMI further cites to the note from the agent on the policy renewal “Quik App” noting no employees and no payroll, and a request for a net annual cost to the partnership of $250 for coverage.  The 1099’s attached to Dodd’s deposition reflect earnings of over $50,000.

 

KEMI’s second argument is that Dodd was excluded from coverage in policy number 361802 that was issued to him and Dale Chandler, doing business as D&D Roofing.  The policy contained a “Sole proprietors, partners, officers, and other exclusion endorsement” stating that “The policy does not cover bodily injury to any person described in the Schedule.”  Dodd was listed in the Schedule.

 

KEMI further cites to Dodd’s testimony that D&D did hire employees from time to time (p. 11), thus it was receiving coverage for the premium it was paying.

 

KEMI’s third argument is that Dodd was not working for D&D Roofing at the time of his injury, but rather the D&G Roofing business he operated with his stepson.  KEMI cites to the following testimony from Dodd, at pages 10-11:

 

Q. Now, I’m looking at your employment history, you, I guess, had worked for Donald Dodd Roofing or you were the owner of that company from 1980 through 1995.  And at that point you became the owner of D&G Roofing?

 

A.  Yes.

 

Q. Is that the same company?

 

A. Yes.  I took a partner.

 

Q. Okay.  And who was your partner?

 

A. Dale Chandler.

 

Q. Okay.  I’m showing that you worked as the owner of that company from 1995 to 2008.

         

A. Up ‘til I got hurt.

 

Q. Okay.  Because there’s also – well, I’m also showing there’s a D&D Roofing.

 

A. Right.  That was me and my brother.

 

Q. Okay.  So D&G Roofing –

 

A. Is me and my stepson.

 

Q. Okay.  And then –

 

A. D&D is me and my brother.

 

Q. Okay.  And what’s your brother’s name?

 

A. James Dodd.

 

Q. Okay.  And were you working at Dodd & Dodd, or D&D, I guess, at the time you were injured?  Or were you working with your stepson?

 

A. It was with my stepson.

 

******

 

Dodd argues that he is a covered employee of D&D Roofing, and that KEMI’s noncompliance with KRS 342.395 estops it from relying on the exclusion endorsement.  Dodd asserts that he is covered absent a Form 4 on file with the Department of Workers Claims.  The ALJ disagrees.

 

KRS 342.395(1) states:

 

Where an employer is subject to this chapter, then every Employee of that employer, as a part of his contract of hiring or who may be employed at the time of the acceptance of the provisions of this chapter by the employer, shall be deemed to have accepted all the provisions of this chapter and shall be bound thereby unless he shall have filed, prior to the injury or incurrence of occupational disease, written notice to the contrary with the employer;… (emphasis added)

 

The “written notice” contemplated by the preceding statute is a Form 4, Rejection of Coverage document.  The Form 4 is an election by an employee. 803 KAR 25:130§1.  Dodd was not an employee of D&D Roofing.  He was a partner in the business.  As such, he must take the initiative to be included in coverage afforded his business “by the issuance of an appropriate endorsement to a workers’ compensation policy.” KRS 342.012(2).  Instead, after previously choosing not to have coverage on himself or occasional employees, the requirements of contractors like JEDA Homes to show proof of workers compensation coverage forced Dodd to secure a policy in order to obtain work.  The representations in the policy application clearly reflect no intention by Dodd to be personally covered under the policy.  Further, the policy plainly and lawfully contains an exclusion of coverage for Dodd and his partner. This exclusion is enforceable, unlike the circumstance presented in Kentucky Employers’ Mutual Insurance v. J&R Mining, 279 S.W.3d 513 (Ky. 2009), where the Court rejected a similar exclusion in a KEMI policy in a case involving a corporate officer.  The Court held that KRS 342.640 considers a corporate officer an employee of the company, one who is covered absent the opt-out procedure of KRS 342.395(1).  There is no requirement for Dodd to have coverage on himself as a partner in a roofing business, and so obviously no requirement for him to reject coverage via a Form 4.  It was his business decision to be excluded from the policy he purchased from KEMI.

 

Alternatively, the ALJ is also compelled by Dodd’s own testimony to find that D&D Roofing was not the company performing work at the home site at which he was injured on January 18, 2010.  After explaining the difference between the D&D and D&G partnerships, Dodd clearly said that it was the D&G Roofing business he ran with his stepson Dale Chandler that was performing the roofing work on the day he was injured.

 

 

         JEDA HOMES’ MOTION TO DISMISS

 

JEDA Homes’ motion to dismiss is based on the argument that Dodd was an independent contractor and not an employee.  In distinguishing between an independent and an employee, both the act and reality favor an existence of an employer/employee relationship. Hushman Snack Foods Co., v. Dillon, 591 S.W.2d 701 (Ky. App. 1979).

 

In Ratliff v. Redmon, Ky. 396 S.W.2d 320 (1965), the Supreme Court of Kentucky held that in determining whether one is acting for another as an employee or as an independent contractor the following areas are to be considered: a) the extent of control the master may exercise over the details of the work; b) whether or not the  employee is engaged in a distinct occupation or business; c) the kind of occupation, with reference to whether the work is usually done under the direction of the employer or by a specialist without supervision; d) the skill required in the particular occupation; e) whether the employee or the workman supplies the instrumentalities, tools and the place of work for the person doing the work; f) the length of time for which the person is employed; g) the method of payment, whether by the time or by the job; h) whether or not the work is a part of the regular business of the employer; and i) whether or not the parties believe they are creating the relationship of master and servant.

 

The Court later said that four of these factors are to be predominantly considered: the nature of the work as related to the business generally carried by the alleged employer; the extent of control exercised by the alleged employer; the professional skill of the alleged employee; and the true intent of the parties. UEF v. Garland, Ky. 805 S.W.2d 116 (Ky. 1991).

 

In this case, there is little that lends itself to an employer-employee relationship.  The nature of JEDA’s business is building houses, but its owner, James Thompson, did none of the labor himself.  He had no employees and contracted out all of the work, including the roofing work done by Dodd.  Roofing was not the business of JEDA Homes. 

 

Thompson and JEDA did not exercise any control over the manner in which Dodd roofed a house.  The only thing JEDA did was furnish shingles at the work site.       Roofing is a skill that acquires much experience.  Dodd testified to the tasks required in roofing a house, and the skills necessary to accomplish those tasks at pages 5-8 of his deposition.  He said that he started the roofing trade in the union, and it took seven years experience to become a journeyman. (p. 9)

 

The intent of the parties was that of Dodd being an independent contractor.  Dodd did all his work under his business name.  He was not affiliated with JEDA Homes, and did not carry himself out as working for it.  He executed a W-9 and received a 1099 at the end of the year reflecting his earnings.  He continued to work for other contractors and builders while contracting work with JEDA Homes.

 

Dodd’s Brief does not argue that he was an employee of JEDA under the familiar Ratliff v. Redmon analysis.  Instead, it argues that he contracted with JEDA, and that JEDA is liable as an up-the-ladder employer under KRS 342.610(2), which states:

         

A contractor who subcontracts all or any part of a contract and his carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation provided for in this chapter….A person who contracts with another:…(b) To have work performed of a king [sic] which is a regular or recurrent part of the work of the trade, business, occupation, or professional of such person shall for the purposes of this section be deemed a contractor, and such other person a subcontractor.        

 

Dodd’s argument for coverage under the up-the-ladder statute is misplaced.  First, the trigger to coverage is an uninsured subcontractor.  But in this case, D&D Homes was insured.  Unfortunately for Dodd, he did not pay for coverage on his own work injuries, and the KEMI policy expressly excluded him from coverage as a partner in the business.  Similarly, the statute provides for up-the-ladder coverage to employees of the subcontractor.  Dodd was not an employee; he was a partner in the business.  An employee has the burden of proof and the risk of non-persuasion to convince the trier of fact of every element of his workers’ compensation claim.  Snawder v. Stice, 576 SW2d 276 (Ky. App. 1979).

 

 

          In the absence of a petition for reconsideration, on questions of fact, the Board is limited to a determination of whether there is substantial evidence contained in the record to support the ALJ’s conclusion.  Stated otherwise, inadequate, incomplete, or even inaccurate fact finding on the part of an ALJ will not justify reversal or remand if there is substantial evidence in the record that supports the ultimate conclusion.  Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985).

          Despite the foregoing, we do not believe the ALJ erred in his determination Dodd was an owner, not an employee of his own roofing business, albeit D & D, or D & G, and therefore excluded from coverage.  Likewise we do not believe the ALJ erred in his determination neither JEDA nor KEMI is responsible for payment of benefits to or on behalf of Dodd.  The ALJ’s decision is supported by substantial evidence.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  As the fact finder, the ALJ has the sole authority to determine the weight, credibility, substance and inferences to be drawn from the evidence.   Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).  Where the evidence is conflicting, the ALJ may choose whom or what to believe.  Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).  The ALJ has the discretion and sole authority to reject any testimony and believe or disbelieve parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof.  Caudill v. Maloney\'s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  Magic Coal v. Fox, 19 S.W.3d 88 (Ky. 2000); Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000). 

          Similarly, the ALJ has the sole authority to judge the weight and inferences to be drawn from the evidence.  Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334 (Ky. App. 1995).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  In order to reverse the decision of the ALJ, it must be shown there was no evidence of substantial probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).  KRS 342.285 grants the ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence.  AK Steel Corp. v. Adkins, 253 S.W.3d 59 (Ky. 2008).   The ALJ, as fact finder, is free to pick and choose whom and what to believe.  Copar, Inc. v. Rogers, 127 S.W.3d 554, 561 (Ky. 2003).  For that reason, we cannot say the ALJ’s conclusions were unreasonable based upon the evidence.  Speedway/Super America v. Elias, 285 S.W.3d 722, 730 (Ky. 2009); Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003).

          As noted by KEMI, Dodd was neither an employee of JEDA nor his own roofing business.  Therefore KRS 342.295, which provides for “employee” acceptance or rejection of the Workers’ Compensation Act, is inapplicable. 

          Likewise, the ALJ appropriately determined Dodd was the owner of both D & D and D & G, and he was excluded from coverage pursuant to the terms of his insurance policy.  Dodd failed to introduce any evidence he was an employee, and admitted in his deposition testimony he was an owner.  It should also be noted, despite Dodd’s failure to join D & G as a party, he was apparently performing the roofing job for JEDA at the time of the accident through that partnership.  As pointed out by JEDA, KRS 342.012 specifically provides an owner of a business, including partners, will only be included for coverage purposes if they elect to do so.  Dodd did not.  As documented in the policy, he and his partner were specifically excluded. 

          Dodd argues the purpose of KRS 342.610 is to prevent subcontracting to irresponsible people. Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W. 2d 459 (Ky. 1986).  Then he further stated, “if Mr. Dodd paid for workers’ compensation coverage for non-existent employees and did not have himself or his partner covered, then he was certainly irresponsible.”  That is not the standard to be considered.  Dodd was not an employee of the subcontractor, he was the subcontractor.   Therefore, KRS 342.610(2) is also inapplicable.

          Based upon the foregoing, the ALJ properly dismissed Dodd’s claim.  Accordingly, the decision by Hon. Douglas W. Gott, Administrative Law Judge, rendered March 1, 2011 is hereby AFFIRMED.

     COWDEN, BOARD MEMBER, CONCURS.

     STIVERS, BOARD MEMBER, CONCURS IN RESULT ONLY.

 

COUNSEL FOR PETITIONER:

HON. MARK EDWARDS

HON. DAVID TROUTMAN

222 WALTER JETTON BLVD.

PADUCAH, KY 42003

 

COUNSELS FOR RESPONDENTS:

 

HON. WARD BALLERSTEDT

333 GUTHRIE GREEN, SUITE 203

LOUISVILLE, KY 40202

 

HON. BRIAN T. GANNON

1315 HERR LANE, SUITE 210

LOUISVILLE, KY 40222

 

HON. WALTER W. TURNER

151 N EAGLE CREEK DR, STE 310

LEXINGTON, KY 40509

 

ADMINISTRATIVE LAW JUDGE:

 

HON. DOUGLAS W. GOTT

400 EAST MAIN ST, STE 300

BOWLING GREEN, KY 42102