D. Daniels Masonry v. Daniels

• Decision Date: 25 February 2000
• Docket Number: No. 93,029.,93,029.
• Citation: 999 P.2d 1124,2000 OK CIV APP 36
• Parties: D. DANIELS MASONRY and Maryland Casualty Company, Petitioners, v. David D. DANIELS and The Workers' Compensation Court, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

999 P.2d 1124

2000 OK CIV APP 36

D. DANIELS MASONRY and Maryland Casualty Company, Petitioners, v. David D. DANIELS and The Workers' Compensation Court, Respondents.

No. 93,029.

Court of Civil Appeals of Oklahoma, Division No. 1.

February 25, 2000.

John C. Vance, Oklahoma City, Oklahoma, for Petitioners.

David D. Daniels, Norman, Oklahoma, Pro Se.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

OPINION

CARL B. JONES, Presiding Judge:

¶ 1 Respondent, David D. Daniels, filed a workers' compensation claim for multiple injuries he received in an automobile accident on February 2, 1997. Daniels, who operated a masonry business as a sole proprietorship, listed himself as an employee on the claim form he filed with the Workers' Compensation Court. Petitioner, Maryland Casualty Company (Insurer), denied liability, arguing that Daniels was the owner of the company and not covered under the terms of the workers' compensation insurance policy. Additionally, the Insurer argued that the injuries did not arise out of and in the course of employment.

¶ 2 The trial court held a hearing on the issue of coverage and ruled that Daniels was a covered and insured sole proprietor under the policy. The Insurer appealed to a three-judge panel of the Workers' Compensation Court. The panel unanimously affirmed the trial court's order without modification. After a trial on the merits, the trial court found Daniels had sustained a compensable injury and awarded permanent partial disability benefits. The Insurer seeks review of the Order determining coverage.

¶ 3 The Insurer contends the Workers' Compensation Court erred in finding Daniels was an employee as defined by 85 O.S. Supp.1997 § 3(6) which provides in pertinent part:

"... Sole proprietors, ... are specifically excluded from the foregoing definition of "employee," and shall not be deemed to be employees as respects the benefits of the Workers' Compensation Act. ... Sole proprietors, ... may elect to include the sole proprietors, ... if otherwise qualified, by endorsement to the policy specifically including them under any policy of insurance covering benefits under the Workers' Compensation Act. When so included the sole proprietors, ... shall be deemed to be employees as respects the benefits of the Workers' Compensation Act ..."

The question of whether one is an employee under the Act is a jurisdictional fact, and we must decide that issue based upon a de novo review of the record. Under this standard, we review the entire record, weigh the evidence and make independent fact findings without deference to the fact findings or to the legal rulings made by the compensation court. Garrison v. Bechtel. Corp., 1995 OK 2, ¶ 8, 889 P.2d 273, 278.

¶ 4 Section 3(6) specifically excluded sole proprietors from the definition of an employee, but allows sole proprietors to elect to include themselves as employees by specific endorsement to their Workers' Compensation policy. Only by such election may a sole proprietor gain benefits under the Act. The critical question is whether, under the terms of the application and policy, Daniels was included as an employee. We find that he was not.

¶ 5 At trial, it was uncontroverted that Daniels' policy did not contain an endorsement listing him as an employee. Neither the application nor the insurance policy listed Daniels as an employee. It was uncontroverted that the estimated payroll for purposes of the premium did not include Daniels' remuneration, and that the premium paid by...