Ponca City Welfare Ass'n v. Ludwigsen
| Citation | 882 P.2d 1062 |
| Decision Date | 11 October 1994 |
| Docket Number | No. 80732,80732 |
| Parties | PONCA CITY WELFARE ASSOCIATION, Petitioner, v. Phyllis LUDWIGSEN and the Workers' Compensation Court, Respondents. |
| Court | Supreme Court of Oklahoma |
Certiorari to the Oklahoma Court of Appeals, Division No. 1.
Certiorari granted to review the opinion of the Court of Appeals, Division I, which affirmed the Workers' Compensation Court's award of benefits. We hold that the petitioner, a non-profit, charitable corporation, was not operating a business for pecuniary gain, and is thus not liable for compensation benefits.
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; WORKERS' COMPENSATION COURT AWARD REVERSED.
H.W. Nichols, Jr. and Katresa J. Riffel, Looney, Nichols, Johnson & Hayes, Oklahoma City, for petitioner.
Fred L. Boettcher and Walt Brune, Boettcher & Brune, Ponca City, for respondent.
Today we must decide whether a salaried employee of a non-profit, charitable organization is entitled to workers' compensation benefits in Oklahoma. Claimant was injured moving heavy cans of food for distribution to the needy. Respondent defends by asserting that the Workers' Compensation Act at § 3(5) includes only activity done by an employer "for pecuniary gain." Respondent is correct. We must reverse the order of the Workers' Compensation Court and vacate the award.
The Ponca City Welfare Association is incorporated under the laws of Oklahoma as a non-profit corporation. It distributes food to needy families. It has a Board of Directors which is in charge of the organization. Claimant Phyllis Ludwigsen was its sole salaried employee. She performed daily tasks for the Association, such as shelving food, and also solicited contributions. On December 6, 1990, Ludwigsen hurt her back when she lifted a case of canned goods. It turned out that she had suffered a ruptured disk, and her doctor recommended surgery. She was unable to return to work after May 1, 1991.
The Worker's Compensation Court awarded her temporary total disability benefits. In so holding the court held that the Association was subject to the terms of the Worker's Compensation Act. The Association requested a hearing before a three-judge panel. There the trial court's ruling was upheld. The Association appealed and the Court of Appeals affirmed.
Title 85 O.S.1991 § 3(5) defines employment covered by the Workers' Compensation Act as follows:
"Employment" includes work or labor in a trade, business, occupation or activity carried on by an employer for pecuniary gain or any authorized voluntary or uncompensated worker rendering services as a fire fighter, peace officer or civil defense worker. (Emphasis added)
The Association urges that because it is organized as a non-profit charitable corporation set up to distribute food to needy families, it is not a business carried on for pecuniary gain. Ludwigsen, on the other hand, urges that as part of her job she solicited funds from donors, and that this suffices to make the business one for pecuniary gain.
Claimant Ludwigsen also points out that the disjunctive "or" in the second line of the section separates "occupation" from "activity carried on by an employer for pecuniary gain". She argues that she was clearly at work in an occupation, and is thus covered even if the activity was not for pecuniary gain. We can not read the statute to say that. The clause "carried on by an employer for pecuniary gain" refers simultaneously to "a trade, business, occupation or activity." This argument fails, and we must proceed to determine whether the employer/Association carried on its business or activity "for pecuniary gain."
The record shows that the Association is a non-profit corporation who receives its funding through private and church donations, the United Way, and Energy Aid. These funds are in turn used to purchase food for distribution and to pay expenses, such as the salary of Ludwigsen and miscellaneous office expenses. The sole purpose of the organization is to collect food for the food bank and distribute it to needy families. On occasion, the organization also gives rent assistance to families. The president of the board of directors testified that the organization did not carry workers' compensation insurance because they had been advised by the United Way that, as a non-profit organization, it was not required.
Oklahoma's history of workers' compensation shows that the "for pecuniary gain" language has long been part of our statutory law. While many states have done away with this requirement 1, the Oklahoma legislature has never seen fit to do so, not even in its thorough statutory overhaul of 1978. Oklahoma, like several other states, has continued to statutorily exclude businesses not for pecuniary gain from coverage by workers' compensation laws. 2 Others have limited the "pecuniary gain" type of exemption to include only a narrower class of organizations. 3
In Carpenters & Joiners Local Union No. 1060 v. Garmes, 199 Okl. 399, 186 P.2d 836 (1947) a carpenter was injured in the construction of a building to be used primarily as a meeting place for the Union. It was the only building the Union had ever constructed. We concluded that the employer Union was a non-profit labor organization, organized for the benefit of its members, and that construction of the building was not carried on for pecuniary gain. The injured worker's award of compensation was vacated on appeal. See also Amerada Petroleum Corp. v. Vaughan, 200 Okl. 226, 192 P.2d 639 (1948); Skelton v. Abbott, 346 P.2d 939 (Okla.1959); Carper v. Brandon, 195 Okl. 192, 156 P.2d 623 (1945); Standard Savings & Ln Ass'n v. Whitney, 184 Okl. 190, 86 P.2d 298 (1938); Harris v. Wallace, 172 Okl. 349, 45 P.2d 89 (1935); Meyer & Meyer v. Davis, 162 Okl. 16, 18 P.2d 869 (Okla.1933).
Our Court has not defined the term "pecuniary gain" as used in § 3(5). This part of our Act was taken from the Workmens' Compensation Act of New York. Meyer & Meyer v. Davis, 18 P.2d at 870. In Dillon v. Trustees of St. Patrick's Cathedral, 234 N.Y. 225, 137 N.E. 311 (1922) the church owned a cemetery which sold burial privileges. An employee was injured excavating the foundation for a monument. The highest court in New York recognized that the church received money for burial privileges, but went on to say:
The Court then observed that most of the money received in the cemetery operation went for maintenance, and if incidentally there was surplus, it went to the charitable objects of the church. Its conclusion was that the religious corporation in operating a cemetery was not conducting a business for pecuniary gain.
In recent years, our Court has continued to acknowledge, without full discussion, the legislatively-mandated requirement of the employer's pecuniary gain. See Brown v. Burkett, 755 P.2d 650, 652 (Okla.1988) (); Murphy v. Chickasha Mobile Homes, Inc., 611 P.2d 243, 245 (Okla.1980) (); Atkinson Enterprises v. District Court of Oklahoma, 516 P.2d 541 (Okla.1973) (). In these cases, we noted that business activity for pecuniary gain is still a criteria when the issue is whether the employer falls within the boundaries of the workers' compensation statutes.
Ludwigsen cites Denbo v. Roark, 196 Okl. 386, 164 P.2d 977 (1946) as authority for her assertion that the Association is liable for her workers' compensation benefits. There, the respondent Farmer's Union Mutual Insurance Company was responsible under an insurance policy for damage to a building by a tornado. The policy provided that the insurer could rebuild the building or pay the amount of loss. The insurer chose to rebuild. The claimant was injured in the process of reconstructing the building. The insurer was set up as a non-profit cooperative association, mainly to benefit its members and avoid certain taxes. Some of its profits were distributed to its customers. Surpluses not so distributed were taxable to the company. We held that as an employer the insurer was responsible for workers' compensation benefits, because the construction was the fulfillment of a contractual responsibility owed to the insured by the insurer. Although set up as a non-profit organization the business furnished insurance for which it had charged premiums. It is undeniable that the company aspired to a profit which could then be rebated to its happy customers. We thus held it was operated for pecuniary gain.
The question in the current case is not determined by whether the organization is set up under Oklahoma law as non-profit. Rather, the language of Section 3(5) requires careful analysis as to whether the activity was operated for the purpose of pecuniary gain. "Pecuniary" is defined as monetary, or relating to money. "Gain" is defined as profits, the difference between receipts and expenditures. Blacks Law Dictionary 4th Ed. pp. 1288, 807; Stanton v. Zercher, 101 Wash. 383, 172 P. 559, 563 (1918). We agree with New York that to be conducted for pecuniary gain the purpose of the business must be profit. Dillon, supra, 234 N.Y. at 228-29, 137 N.E. at 312.
We find our case to be distinguishable from Denbo. Unlike the insurance company in Denbo which...
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