Brooks v. Sam Lochner Builders, Inc., 51743

• Decision Date: 03 July 1980
• Docket Number: No. 51743,51743
• Citation: 5 Kan.App.2d 152,613 P.2d 389
• Parties: Gary L. BROOKS, Appellee and Cross-Appellant, v. SAM LOCHNER BUILDERS, INC., Appellant and Cross-Appellee, and The Kansas Workmen's Compensation Fund.
• Court: Kansas Court of Appeals

Page 389

613 P.2d 389

5 Kan.App.2d 152

Gary L. BROOKS, Appellee and Cross-Appellant, v. SAM LOCHNER BUILDERS, INC., Appellant and Cross-Appellee and The Kansas Workmen's Compensation Fund.

No. 51743.

Court of Appeals of Kansas.

July 3, 1980.

Syllabus by the Court

In an appeal from a district court judgment awarding worker's compensation, it is held the claimant had the burden to prove applicability of the Workmen's Compensation Act to the respondent and did not sustain that burden.

Richard M. Enochs, of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, for appellant and cross-appellee.

David K. Martin, of Payne & Jones, Chartered, Olathe, for appellee and cross-appellant.

Before MEYER, P. J., and REES and PARKS, JJ.

REES, Judge:

Respondent Sam Lochner Builders, Inc., appeals and claimant Gary L. Brooks cross-appeals from an award of worker's compensation to claimant.

Lochner, a home builder, was building a house in the city of Olathe. The trim carpentry portion of the construction was undertaken by an individual who had bid the work on a job basis at an agreed price of $750. Because of illness, that workman left the job with the work fifty to seventy-five percent completed. Lochner and Brooks, a trim carpenter, made an agreement for completion of the trim carpentry in the house. Because the work was partially completed, their agreement was not on the job, or lump sum payment, basis. They agreed Brooks would be paid $12 per hour for his completion of the work. On his third day at the job site, Brooks sustained accidental injury to two fingers.

Brooks duly filed a claim for an award of worker's compensation. At the initial hearing before the examiner when asked by the examiner if Lochner admitted the parties were governed by the Workmen's Compensation Act, Lochner's counsel responded, "That is denied." This denial was preceded by Lochner's denial of a requested stipulation that the relationship of employer and workman existed on the date of the accident. In due course, the parties presented their evidence. The record reveals the evidence and arguments were principally directed at the issues of whether Brooks was an independent contractor or an employee of Lochner and the nature and extent of Brooks' disability resulting from the accident.

The findings and award entered by the examiner were affirmed on review by the director of worker's compensation and adopted as the decision of the district court. On appeal to us, Lochner contends the evidentiary record does not support the findings that the relationship of Lochner and Brooks was that of employer and workman and that the parties were governed by the Workmen's Compensation Act. We agree as to the latter.

The presently relevant provisions of the Act are that part of K.S.A. 1979 Supp. 44-505(a ) which reads:

"(T)he workmen's compensation act shall apply to all employments wherein employers employ workmen within this state except that such act shall not apply to . . . (2) any employment . . . wherein the employer had a total gross annual payroll for the preceding calendar year of not more than ten thousand dollars ($10,000) for all workmen and wherein the employer reasonably estimates that he or she will not have a total gross annual payroll for the current calendar year of more than ten thousand dollars ($10,000) for all workmen . . . or (3) any employment . . . wherein the employer has not had a payroll for a calendar year and wherein the employer reasonably estimates that he or she will not have a total gross annual payroll for the current calendar year of more than ten thousand dollars ($10,000) for all workmen . . . ."

Lochner had not filed an election to come under the Act as allowed by K.S.A. 1979 Supp. 44-505(b ).

It is Lochner's contention that neither did it have a payroll of more than $10,000 for the...