Workers’
Compensation Board
OPINION
ENTERED: April 15, 2016
CLAIM NO. 201402287
DALENE M. STADLER PETITIONER
VS. APPEAL FROM HON. STEVEN
G. BOLTON,
ADMINISTRATIVE LAW JUDGE
KELLY SERVICES and
HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Dalene Stadler
(“Stadler”) appeals from the Opinion and Order
rendered October 1, 2015 by Hon. Steven G. Bolton, Administrative Law Judge
(“ALJ”), who found she was not employed by Kelly Services at the time of the
February 20, 2014 injury, and dismissed her claim. Stadler also appeals from the October 30,
2015 order denying her petition for reconsideration.
On
appeal, Stadler argues the ALJ erred in dismissing her claim. Stadler argues Rahla v. Medical Center at
Bowling Green, 2013-CA-001712, 2014 WL 1400102 (Ky. App., April 11, 2014)
is distinguishable because her participation in the workday simulation
assessment for a potential position with Toyota Motor Manufacturing Kentucky
(“TMMK”) benefited Kelly Services.[1] Stadler also argues she falls within the
definition of “employee” pursuant to KRS 342.640(4). Because the ALJ’s decision is consistent with
the holding by the Kentucky Supreme Court in Rahla v. Medical Center at
Bowling Green, ___S.W.3d___, 2014-SC-000236, 2016 WL 1068256 (Ky., March
17, 2016) (to be published), and no contrary result is compelled, we
affirm.
Stadler
filed a Form 101 alleging she injured her right knee and wrist while performing
simulation training for a job at TMMK when her right foot became stuck on a
rubber mat causing her to fall. The Form
101 lists Kelly Services as her Employer at the time of the accident. Kelly Services filed a Form 111 denying the
claim because Stadler was not an employee when the injury occurred. Kelly Services explained Stadler was
performing the workday simulation assessment, a test required by TMMK to be
completed before an applicant can be considered for employment. Subsequently, the ALJ granted Kelly Services’
motion to bifurcate regarding the issue of whether Stadler was its’ employee on
February 20, 2014.
Stadler
testified by deposition on February 25, 2015.
Stadler stated she became interested in working for TMMK in the summer
of 2013. She called TMMK and was told
she had to apply through Kelly Services, a temporary employment agency. Stadler called Kelly Services, and was
directed to a website to initiate the application process. Stadler provided her personal information and
completed two online tests at home on January 6, 2014. Stadler received a phone call to schedule a
computerized test to be taken at an off-site location. Stadler agreed and took the test in January
2014 at the Lexington Career Center.
Subsequently,
Stadler was notified by Kelly Services she had passed, and could proceed to the
workday simulation assessment which was to take place at TMMK on February 20,
2014. Stadler was provided directions and a date and time to take the workday
simulation assessment. Stadler and sixteen other applicants arrived at TMMK,
and were greeted by the assessors. The
applicants were provided information regarding that day’s testing, and were
required to complete paperwork and sign waivers. The group was then taken to the testing site. During the workday simulation assessment, Stadler
was placed in the Camry simulator. As
Stadler stepped out of the stimulator onto flat rubber matting to turn to the
trunk area, her foot became stuck causing her to fall. She experienced intense right knee pain and
attempted to get up, but immediately fell again injuring her right wrist. Stadler was unable to complete the workday
simulation assessment and was taken to the emergency room. If Stadler had successfully completed the
application process, she would have started as a temporary employee with Kelly
Services for ninety days, and then would have become a full-time TMMK employee.
Stadler
provided the following testimony regarding her understanding of the application
process, including the workday simulation assessment:
Q: -- but if I understand
you correctly, you recognize that you were going through the prehire testing procedure in order to get on at Toyota?
A: Yes
. . . .
Q: All right. And when you’re
going through all these procedures, you understood that to even be considered
for a job there you’re going to have to pass these tests first?
A: The in-house physical, manual labor part, yes.
Q: Okay. And I guess what they
call the workday assessment they have sort of a mock-up of the plant where you
would go and try and perform some of the activities they might be having you do
on a daily basis just to see how able - - how well able you were to do those?
A: Yes.
Q: Okay. But at the time of that
assessment I think they also have a pre-employment physical that they do, a
post-offer but pre-employment physical.
Did you ever get to that stage?
A: There was never any physical required prior to the inside Toyota
test.
Q: Right, but you knew that even if you passed the inside test, the
Toyota inside test, you would have a pre-employment physical and a couple more
steps before you officially became an employee?
A: If that was explained to us, absolutely, yes, I would have
understood that.
. . .
Q: I guess maybe I’m unclear, but, I mean, you knew this was part of
the evaluation process?
A: The steps towards hiring?
Q: Right, right.
A: Yes.
. . . .
Q: Okay. And this is essentially
the same sort of process except for this is what you had to go through if you
wanted to be considered for a job there?
A: Correct. . .
Q: Right. But I guess the point
is you knew you hadn’t been hired.
A: Well, correct. None of us had
been at that point.
Stadler
testified she was not compensated for the testing, and Kelly Services never
issued her a badge giving her access to the TMMK plant. At the time of her injury, Stadler had not
been informed about wages or benefits, and did not know what position she would
have at TMMK if ultimately hired.
Matthew
Gray (“Gray”), a regional safety manager for Kelly Services, testified by
deposition on May 7, 2015. Kelly
Services provides employees to its customers, one of which is TMMK. Gray explained its’ customers inform Kelly
Services the pay rate for open positions.
In turn, Kelly Services provides employees to fill those positions. Kelly Services charges its customers a billing
rate, which is typically higher than the hourly rate quoted for the
employee.
Gray
oversees all safety activities for three TMMK sites. TMMK requires a specific application and hiring
process, which is implemented by Kelly Services. A person interested in working for TMMK first
takes two online tests, both of which are “housed by a third-party that
administers those evaluations.” The
third party who administers the two tests is Select Track. Depending on the results of those tests,
Select Track emails the applicant to schedule the workday simulation
assessment. Gray explained the tests and
workday simulation assessment are required by TMMK for their application protocol. Kelly Services implements TMMK’s protocol for
which it does not receive additional compensation.
The
workday simulation assessment during which Stadler was injured is intended to simulate
a job at TMMK. The assessment takes
approximately five hours to complete.
Once applicants arrive at TMMK and check in, assessors review
information with them and have them complete paperwork, including a liability
waiver. The assessors are neither
representatives from Kelly Services or TMMK, but are representatives of a third
party called CQPD. The CQPD assessors
take the applicants to the assessment area, and provide them with a series of
directions. The assessment area consists
of a mock work station, work tables, three sets of a shell of a car, a weight
wall and a mock welding station.
No
representatives from TMMK or Kelly Services oversee or review the workday
simulation assessment. Once the workday
simulation assessment is complete, Select Track grades the results. Those scores are then relayed to Kelly
Services, who notifies an applicant of the results. The third parties involved, Select Track and
CQPD, have contracts with Toyota, not Kelly Services. Gray refused to say whether Kelly Services
derived a benefit from providing the workday simulation assessment. The assessment allows Kelly Services to
determine who is more physically qualified for a position with TMMK.
If
an applicant passes the workday simulation assessment, he or she must go
through an interview process, complete employment paperwork, pass a drug
screen, and background check. Kelly
Services ensures an applicant has a valid Social Security number, and is
eligible for employment in the United States. Gray testified: “Then once they complete all
that, then they have completed the process, the full process.”
Q: So we know Ms. Stadler had an accident, you know, trying to complete
the mockup, never actually got to work there, never went on the line. So did she ever complete your all’s
employment paperwork?
A: No.
Q: Can you all hire someone without running a background check on their
Social Security number to make sure its valid?
A: No.
Q: Can you all hire someone without making sure they are eligible for
employment in the United States?
A: No.
Q: Is it your company policy to require them to complete your own
employment application before you hire them?
A: Yes.
Q: Had she done any of those steps?
A: No.
Q: Is it fair to say that you all weren’t paid anything for Ms. Stadler
having been shepherded through the process or participating in it?
A: That’s correct.
. . .
Q: Let’s say a candidate sales[sic] through all the Toyota
requirements, you know, the pre-consideration requirements; and then you all
take them in, do a background check on them and the person either has a bad
criminal record, doesn’t have a valid social security number, doesn’t pass drug
screens, do you all have the right to reject that candidate?
A: Yes, that candidate will be rejected from the hiring process.
Q: Okay. And those are based
upon Kelly Services’ standards, not anything to do with Toyota?
A: That’s correct.
In
the Opinion and Order dated October 1, 2015, the ALJ summarized the testimony
of Stadler and Gray. The ALJ noted it is
undisputed Stadler was a job applicant and wanted to obtain a position at
TMMK. Stadler recognized she would be
undergoing the pre-hire testing procedures required in order to be considered
for a position at TMMK through Kelly Services.
The ALJ noted Stadler completed and passed tests on-line and at the
Lexington Career Center. She was then
notified by e-mail she had an appointment to undergo a pre-employment physical
and a mock-up simulation of the types of work tasks she would expect to perform
if hired for a position at TMMK. The ALJ
noted the following:
All of this had been explained to her as a
prerequisite before any consideration would be made as to hiring her as an
employee. Further, and more
significantly, she understood that she was not going to be paid for
participating in this pre-employment assessment process. She acknowledged in her sworn testimony that
she knew she hadn’t been hired as of the time of her injury in the work
simulation module.
The
ALJ noted Gray testified Stadler voluntarily participated in TMMK’s required
pre-placement screening, and she had not even begun the application process for
Kelly Services. Kelly Services has an
independent employment application process and must determine whether the
applicant is legally eligible for employment in the United States. The ALJ found as follows:
I believe
that the recent case of Rahla v.
Medical Center at Bowling Green, No. 2013-CA-001712-WC (rendered 4/11/14
–currently on appeal to the Kentucky Supreme Court) is almost directly on point
with the case at bar. Rahla sustained an injury while performing pre-job
placement for a position as an employee of the Medical Center. In both that case and the present situation,
the Court ruled that the pre-employment activities cannot and should not be
considered “service in the course of the trade, business profession, or
occupation of an employer” as this offers no direct benefit to the alleged
employer and no assumption as to wages can be made on a pre-employment
qualifying examination.
The
distinguishing factor in this case would be Plaintiff’s argument that Kelly
Services’ trade or business is that of providing a work force to employers such
as Toyota. Plaintiff goes on to argue
that in this instance, Kelly Services’ trade and business also included
providing Toyota with the service of carrying out Toyota’s required “job placement
test.” Legally speaking, I believe that
ship founders on the shoal of wages. Neither TMMK nor Kelly Services is paying
the claimant anything for participating in what is essentially a screening
process. That point was made clear in the Plaintiff’s testimony, so there is no
factual issue.
The
Plaintiff in a workers’ compensation claim bears the burden of proof and the
risk of non-persuasion with respect to every essential element of his claim. Snawder v. Snice, 576 S.W.2d 276 (Ky. App. 1979). Jurisdiction is an essential element of any
claim. Without it, the Board is without the authority to award benefits to an
employee who has suffered a work-related injury, no matter how strong the claim
is on its essential facts. Therefore, the threshold requirement in a
compensation claim is that the claimant must be an employee for hire, as the
essence of compensation protection is the restoration of a part of wages which
are assumed to have existed. Further, compensation services uniformly exclude
from the definition of “employees” workers who neither receive nor expect to
receive any kind of pay for their services. Kentucky Farm & Power Equipment
Dealers Association v. Fulkerson Bro’s, Inc, 631 S.W.2d 633 (Ky. 1982);
Highland Heights Volunteer Fire
Department v. Ellis, 160 S.W.3d 768 (Ky. 2005).
Here,
the Plaintiff testified that she applied for a position with TMMK through the
Defendant Kelly Services. She never received any notice, written or verbal,
that characterized Defendant’s communication as an “offer” of employment.
After
passing some preliminary tests, on February 20, 2014, Ms. Stadler was
significantly injured while performed[sic] the “job
placement test” for Kelly Services that is required by Toyota. Kelly Services has denied workers’
compensation benefits to Stadler on the grounds that she was not an employee of
Kelly Services at the time she was performing this “job placement test” which
was performed in a structure located on the premises of the Toyota plant in
Georgetown, KY. She transported herself
to this facility and was not paid by the Defendant for her expenses or time in
attending this screening.
KRS
342.640 (1) defines the term “employees” in pertinent part as being, “Every
person,… whether lawfully or unlawfully employed, in
the service of an employer under any contract of hire or apprenticeship,
express or implied,…” Here, the Plaintiff has the burden of proof to show that
she was an “employee for hire” on October 31, 2012.
I
think that a case that controls in this instance is Graham v. TSL, LTD,
350 S.W.3d 430 (Ky. 2011).
In Graham,
the applicant was recruited over the phone to drive a truck for the prospective
employer. However, as a condition of employment, he had to go to Missouri where
he took a required driving test, participated in a training program concerning
company policies and procedures, and underwent another drug test. The company
then provided him a truck and he began working.
In Graham,
as here, the applicant testified that he was “hired” and that the orientation
was a mere formality. In both cases, the company provided documentation which
notified the prospective employee on its face that there were certain
preconditions that had to be met in order to complete the terms of the
agreement. Those preconditions were similar in part to those in this case.
The Supreme
Court disagreed with Mr. Graham, pointing out in pertinent part that a contract
is made at the time the last act necessary for its formation is complete and at
the place where that act is performed. Noting that a contract made by telephone
is made in the place where the acceptor speaks his acceptance, the court
supported the ALJ’s conclusion that the parties’ contract was not formed until
the claimant completed various requirements in Missouri. While the claimant may
have considered himself hired after his telephone conversation, such evidence
was not so overwhelming is[sic] to compel the ALJ to
conclude that a contract was formed at that time. (Id. At p.
433).
Here,
Ms. Stadler in fact agrees that she understood the Defendant’s offer of
employment to be conditional upon the successful completion of her evaluation.
Moreover, she admits that she had to complete all of the various preconditions
in order to commence work at TMMK. Her argument is that as Kelly Services is in
the business of placing temporary employees, by testing she provided a benefit
to Kelly because they would get paid if she got approved to work at TMK[sic]. Unfortunately the operative word here is “if”. The
parties’ contract was not formed until she completed the various requirements
of the pre-employment process. Traugott v. Virginia Transportation, 341 S.W.3d 115 (Ky. 2011).
She was injured prior to the completion of those requirements. Therefore, she
was not an employee at the time of the injury.
The ALJ concluded the parties’ contract
would not be formed until Stadler completed various
requirements in a pre-employment process. Stadler admitted and failed to prove she was
an employee of Kelly Services at the time of her February 20, 2014 injury since
there was no contract of employment, and she received no wages for services
performed. Therefore, the ALJ denied and
dismissed Stadler’s claim due to lack of
jurisdiction.
Stadler filed a
petition for reconsideration making the same arguments she now makes on
appeal. In denying the petition, the ALJ
stated as follows:
The second error alleged is that I did not find that Kelly
Services received a benefit from the Plaintiff’s activities in taking a “job
placement test” as part of Kelly Services agreement with Toyota. That argument
is also irrelevant and immaterial. Defendant is correct in stating that Kelly
Services administered no pre-employment screening for Toyota. Such testing was
done by a third party on Toyota’s premises. In any event, it makes no
difference because the determining factor in the case is the fact that Kelly
Services paid the Plaintiff no wages. There was no offer of employment and she
was not paid, nor did she have a reasonable expectation of being paid for
performing the job placement test. Again I find no error patently appearing on
the face of the Opinion and Order of October 1, 2015 with regard to this
argument.
On
appeal, Stadler argues the ALJ’s decision should be reversed because it was
clearly erroneous based upon the evidence.
Stadler first asserts the facts of her claim are distinguishable from
those in Rahla v. Medical Center at Bowling Green, supra, and Graham
v. TSL, LTD, 350 S.W.3d 430 (Ky. 2011) since Stadler’s
participation in the workday simulation assessment benefitted Kelly
Services. She argues Kelly Services
makes money by providing and placing employees with employers and that TMMK
required Kelly Services to implement the assessment. Gray indicated if Kelly Services were to
discontinue the assessment, the business relationship between it and TMMK would
potentially end and cause financial damage to Kelly Services. Stadler argues as follows:
As such, Kelly Services derived a clear
benefit from Stadler’s participation in the job
placement test. Although her
participation in the job placement test may not have been a service in the
“trade, business, profession, or occupation” of TMMK, it was certainly a
service in the regular business of Kelly Services, i.e., the business of job
placement.
Stadler
argues without applicants like her, Kelly Services’ business relationship with
TMMK would crumble, regardless of the fact it was not paid directly by TMMK for
the assessment and she was not compensated for her participation.
Authority has long
established the claimant in a workers’
compensation case bears the burden of proving each of the essential elements of her
cause of action before the ALJ, including whether she is an employee subject to
the provisions of the Kentucky Workers’ Compensation Act. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979).
Since Stadler was unsuccessful in her burden, the
question on appeal is whether the evidence is so overwhelming, upon
consideration of the record as a whole, as to compel a finding in her
favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is
defined as evidence so overwhelming no reasonable person could reach the same
conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the
evidence. Square D Co. v. Tipton,
862 S.W.2d 308 (Ky. 1993).
Similarly, the ALJ has the sole authority to
judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d
329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The ALJ may reject
any testimony and believe or disbelieve various parts of the evidence,
regardless of whether it comes from the same witness or the same adversary
party’s total proof. Magic
Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker
v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision
is not adequate to require reversal on appeal.
Id.
In order to reverse the decision of the ALJ, it must be shown there was
no substantial evidence of probative value to support her decision. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
We find the ALJ did not err in his
determination an employer-employee relationship did not exist at the time of
the alleged February 20, 2014 injury, and the evidence does not compel a
contrary result. KRS 342.640 states as follows:
The following
shall constitute employees subject to the provisions of this chapter, except as
exempted under KRS 342.650:
(1) Every person, including a minor, whether
lawfully or unlawfully employed, in the service of an employer under any
contract of hire or apprenticeship, express or implied. . . whether paid by the
employer or employee, if employed with the knowledge, actual or constructive,
of the employer;
. . . .
(4) Every person
performing services in the course of the trade, business, profession, or
occupation of an employer at the time of the injury.
The Kentucky Supreme
Court has held an “employee” pursuant to KRS 342.640 must be an employee for
hire because “the essence of compensation protection is the restoration of a
part of wages which are assumed to have existed.” Hubbard v. Henry, 231 S.W.3d 124, 129
(Ky. 2007)(citing Kentucky Farm & Power Equipment Dealers Assoc., Inc.
v. Fulkerson Brothers, Inc., 631 S.W.2d 633, 635 (Ky. 1982)). The Court also explained KRS 342.640(4) does
not refer to a contract for hire in order to protect workers who are injured
while performing work in the course of an employer’s business by considering
them to be employees despite the lack of a formal contract for hire, unless the
circumstances indicate the work was performed with no expectation of payment or
the worker was a prisoner. Id. at 130.
Subsequent
to the ALJ’s opinion and order on reconsideration, the Kentucky Supreme Court
rendered its decision in Michelle Rahla v. Medical Center at Bowling Green, supra, which is applicable to this
case. In Rahla, the Claimant
received a written offer for a position contingent upon passing a physical
examination and drug screen. Although
the Claimant was able to complete and pass the physical examination, she
alleged she injured her neck during the testing process. The ALJ found at the time of her injury, the
Claimant was not “in the service of, under any contract of hire with, or
performing any service in the trade, business, profession, or occupation of”
the alleged Employer. The Workers'
Compensation Board affirmed the ALJ's ruling, and the Kentucky Court of Appeals agreed
the Claimant was not an employee when she submitted for a physical
examination. In affirming the Kentucky
Court of Appeals, the Court stated as follows:
The
Kentucky Worker's Compensation Act offers a sweeping understanding of who,
precisely, is an “employee” protected under its statutory plan. In addition to
covering individuals formally employed or acting under contract, the Act also
includes “[e]very person performing service in the course of the trade,
business, profession, or occupation of an employer at the time of the injury.”
So under the statutory plan, Rahla potentially qualifies under
two scenarios: either she was employed at the time of the examination, or the
physical examination conferred some sort of benefit to the Medical Center's
business.
Nothing
in the record suggests Rahla was employed by the Medical Center when she
participated in the physical examination. She received confirmation of her
hiring after the examination was completed. And her first day of work at
the Medical Center occurred three weeks later. It is clear from the Medical
Center's tentative offer that a successful physical examination and drug
screening was an express condition precedent to formal employment. So Rahla
does not qualify as an employee under KRS 342.640(1).
Rahla's claim thus turns on whether completing the physical examination
is a “service” in the course of the Medical Center's business. We have expanded
on this qualification, holding that the Act “protects workers who are injured
while performing work in the course of the employer's business by considering
them to be employees despite the lack of a formal contract for hire, unless the
circumstances indicate that the work was performed with no expectation of
payment.” There are two key takeaways from this elaboration in light of Rahla's claim. First, we do not consider the physical
examination “work” in furtherance of the Medical Center's business. Rahla
offered the Medical Center no material benefit; in fact, she was the primary
beneficiary of the examination. It is of no consequence to the Medical Center
whether she completed the examination or not.
Second
and most critically, we envision no scenario where Rahla could possibly expect
payment for the physical examination, even absent the Medical Center's clear
statement that passing the physical is prerequisite to official employment. In fact, had she failed the physical
examination and the Medical Center declined her employment, we doubt this claim
would even exist. No employment relationship existed with the Medical Center
when the injury occurred. And we will
not go beyond the Act's comprehensive sweep of a qualifying “employee” to a
much broader relationship ex nihilo. The text of the statute denies her
compensation because she was not an employee at the time of her injury.
But
Rahla offers a number of critiques to rebut what would appear to be the plain
meaning of the statute serving as the basis for her claim. Perhaps most persuasively, she suggests this
type of claim is found in Larson's Workers' Compensation treatise. Indeed, Larson seems to contemplate that it is
“appropriate to treat a pre-employment physical examination as part of the
employment” but also recognizes that “some courts have not for a variety of
reasons.”
Larson even directly cited two states—Pennsylvania and North Carolina—that do
not follow this approach.9 This Court holds Larson's treatise in high regard,
but Kentucky appears to be among those jurisdictions choosing not to treat this
pre-employment examination as employment for purposes of workers' compensation
coverage.
The
section of Larson's treatise Rahla relies upon in making this claim spends a
great deal of time considering try-out periods in the hiring process and its
effect on workers' compensation coverage. It is of no coincidence that the only
Kentucky case she cites invokes that particular circumstance. In Hubbard v.
Henry, an employee agreed to work as a timber cutter on a trial basis, and
without pay, to demonstrate his ability to his prospective employer. The
employee of course injured himself, but we held he was entitled to workers'
compensation coverage despite the lack of a formal employment relationship.
This was totally consistent with Larson's statement on try-out period coverage
when the “injury flows directly from employment activities or conditions,” and
the statute's command that an employee is covered if “performing service in the
course of the trade, business, profession ... “
While
we have endorsed the try-out period approach, we have not taken the same action
with regard to pre-employment medical screenings.
Rahla
could not point to any Kentucky case law following her approach; instead she
frames the issue as one of first impression to this Court. But as the Medical
Center correctly points out, that is not the case. In Honaker v. Duro Bag Manufacturing Co., we held that that if
employment is contingent upon a pre-employment physical examination, that
individual is not covered as “employed” until the examination is completed. The
workers' compensation statutes attempt to restore an
employee's lost wages—wages that were assumed to have existed at the time of
the injury. Without any evidence of an employment relationship between Rahla
and the Medical Center, we cannot conclude she was employed at the time of her
injury.
In
interpreting statutory commands from the legislature, we cannot derive meaning
from what is absent in the text. Whether the legislature intended to cover
claims like Rahla's is not our prerogative. And no matter what degree of esteem we hold
Larson's contributions to workers' compensation law,
we cannot adopt his position when the statute does not. Kentucky law offers a comprehensive
definition of qualifying employees and none of them describes Rahla's status at the time of her injury. We must
accordingly affirm the lower courts and dismiss her claim.
Here,
as in Rahla, nothing in the record suggests Stadler was employed by
Kelly Services when she voluntarily participated in the workday simulation
assessment on February 20, 2014. In
fact, Stadler’s own testimony firmly establishes she
understood at the time of her injury she was going through the pre-hire
procedure, which she had to pass before consideration for a job at TMMK, and
she had not yet been hired. Gray
provided consistent testimony. It is
clear from Gray’s testimony, Stadler’s potential
employment was conditioned upon successful completion of TMMK’s pre-hire
protocol implemented by Kelly Services, as well as its own application process,
neither of which Stadler successfully completed. Simply put, Stadler was never an employee of
Kelly Services pursuant to KRS 342.640(1), a fundamental requirement necessary
for eligibility of workers’ compensation benefits.
KRS
342.640(4) serves to protect workers who
are injured while performing work in the course of an employer’s business by
considering them to be employees despite the lack of a formal contract for
hire, unless the circumstances indicate
the work was performed with no expectation of payment. Hubbard v. Henry, 231
S.W.3d at 129. We do not consider
the workday simulation assessment “work” in furtherance of Kelly Services’
business. Stadler’s
participation in the assessment offered no material benefit to Kelly Services
and it was not provided compensation for implementing TMMK’s pre-hire
protocol. There is no evidence to
support any theory Stadler expected payment for the workday simulation
assessment. We also find Stadler was not
engaged in a “try-out period” or “trial basis” similar to the Claimant in Hubbard
v. Henry, supra.
In
this instance, the ALJ performed the appropriate analysis and rendered a
decision supported by substantial evidence.
The ALJ specifically noted Stadler was a job applicant, wanted to obtain
a position at TMMK, recognized she would be undergoing the pre-hire testing
procedures required in order to be considered for a position at TMMK, and was
fully aware she would not be compensated for participating in the
pre-employment process. Additionally,
the ALJ noted Stadler acknowledged in her sworn testimony she knew she had not
been hired as of the time of her injury in the workday simulation assessment,
was voluntarily participating in TMMK’s required pre-placement screening, and
had not even begun the application process for Kelly Services. The ALJ noted Stadler never received any
notice, written or verbal, characterizing Kelly Services’ communication as an
“offer” of employment. Stadler
understood her potential hire by Kelly Services was conditioned upon the
successful completion of her evaluation, and she had to successfully complete
all of the various pre-conditions in order to be considered for employment at
TMMK.
Therefore,
because the ALJ performed the proper analysis, his decision is supported by
substantial evidence, and no contrary result is compelled, we affirm.
Accordingly,
the October 1, 2015 Opinion and Order and the October 30, 2015 order on petition
for reconsideration by Hon. Steven G. Bolton, Administrative Law Judge, are
hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON LARRY D ASHLOCK
333 WEST VINE ST, STE 1200
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON C PATRICK FULTON
1315 HERR LANE, STE 210
LOUISVILLE, KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON STEVEN G BOLTON
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1] The test during which Stadler was injured
has been called several different names by the parties, including the job
placement test, the simulation training, Day 2, and the production simulation
performance assessment. For simplicity,
this Board will use the name “workday simulation assessment.”