SR v. Manning
| Decision Date | 11 June 2015 |
| Docket Number | 2014-SC-000569-WC |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | BILL HUNTSMAN SR. D/B/A HUNTSMAN & SONS PAINTING APPELLANT v. JOE MANNING; UNINSURED EMPLOYERS' FUND; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS'COMPENSATION BOARD APPELLEES |
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM COURT OF APPEALS
WORKERS' COMPENSATION BOARD NO. 09-WC-01334
MEMORANDUM OPINION OF THE COURTAppellee, Joe Manning ("Manning"), worked for Appellant, Bill Huntsman d/b/a Huntsman 8b Sons Painting ("Huntsman") as a painter. On June 9, 2009, Manning was injured while working at Huntsman's residence, removing brush/storm debris. Huntsman did not have workers' compensation insurance on the subject injury date. Manning subsequently filed an Application for Resolution of Claim ("Form 101") with the Department of Workers' Claims ("DWC") alleging that he was injured in the course of his employment with Huntsman. Huntsman failed to timely file a Notice of Claim Denial or Acceptance ("Form 111"); consequently, the allegations of Manning'sForm 101 were deemed admitted.1 After Appellee, Uninsured Employer's Fund ("UEF"), settled with Manning and the ALJ approved the settlement, Huntsman moved to reopen on grounds of fraud. The ALJ reopened and abated the settlement, passing final resolution to the merits. After the taking of proof and a formal hearing, the ALJ concluded that there was no fraud, and that the settlement between Manning and UEF was valid and enforceable. Huntsman appealed. The Board dismissed the appeal as interlocutory, because the ALJ had not yet resolved Manning's claim against Huntsman. On remand, the ALJ entered an award in Manning's favor. Huntsman appealed. UEF did not. The Board and the Court of Appeals affirmed. On appeal to this Court, Huntsman argues that the DWC lacked subject matter jurisdiction and that the settlement should be set aside on the basis of fraud. Finding no error, we affirm.
On November 23, 2009, Manning filed a Form 101 alleging that he was injured on June 10, 2009, in the course and scope of his employment. Manning named Huntsman & Sons Painting2 and UEF as Defendants. OnNovember 25, 2009, the DWC certified that Huntsman & Sons Painting did not have workers' compensation insurance on the alleged injury date.
The DWC investigated. The investigative report reflects that Huntsman's business address was a residence. In a December 10, 2009, telephone conversation,3 Mr. Huntsman told the enforcement officer he had no employees, and that Manning was an independent contractor (for the painting business). Mr. Huntsman explained he was on vacation at the time of the subject injury. Mr. Huntsman related that he had told Manning if he wanted to earn some money, he could remove tree debris at his property. Manning fell from a ladder while clearing up the property. On December 11, 2009, Mr. Huntsman met with the enforcement officer in her office.4
On December 15, 2009, the DWC issued a scheduling order assigning the claim to ALJ Davis and setting a Benefit Review Conference ("BRC") for April 13, 2010. The order states that defendants have 45 days to file Huntsman did not timely file a Form 111.5
UEF settled with Manning. On April 28, 2010, ALJ Davis approved the settlement ("Form 110").
On May 5, 2010, attorney Jack Richardson, IV, filed an entry of appearance on behalf of Mr. Bill Huntsman d/b/a Huntsman & Sons Painting. On May 11, 2010, Huntsman filed a "Petition for Reconsideration of and/or Setting Aside of Settlement and Order" which the ALJ denied by Order of May 28, 2010.
On June 14, 2010, Huntsman filed a Motion to reopen pursuant to KRS 342.125 on grounds of fraud, because Manning was "claiming a work injury against a party for whom he was not working ... [and that he was not] in the course of employment at the time of the alleged injury...." Huntsman asserted Manning was engaged in domestic work exempt under KRS 342.6506 and that the "Board [sic], is without jurisdiction to approve a settlement for injury of a domestic worker." Huntsman also alleged that the average weekly wage was false. By Order of July 6, 2010, the ALJ reopened the matter, abated the settlement and allotted proof time, passing final resolution of Huntsman's motion to the merits.
Mr. Huntsman testified by deposition and at the hearing. He testified that he had received the December 15, 2009 scheduling order. He explainedthe address for his residence and business are the same. Mr. Huntsman also testified that he had asked Manning to pull tree limbs down to the drive so they could be collected by Metro Louisville's deadline for picking up storm damage debris. Mr. Huntsman explained that it helped him out, otherwise he would have had to do it himself which would have taken up his vacation.
In an Opinion, Award & Order rendered August 12, 2011, the ALJ provided a detailed summary of the evidence and determined that:
Bill Huntsman, as the employer, was fully aware of the pending nature of this claim, and had received numerous communications from the Plaintiff's attorney and the UEF prior to the settlement agreement and that he was never, at any time, refused his right to be heard nor was he discouraged or effectively silenced in his pursuit of his right to be heard. Rather, Bill Huntsman, willfully or through his own neglect did not seek to become an effective party to this claim and have the settlement agreement set aside until he became aware that he might not be able to avoid some liability for this claim.
The ALJ noted that the defenses of independent contractor and employment relationship are commonplace, and that Huntsman had waived those defenses by failing to timely file a Form 111 within 45 days of the scheduling order, KRS 342.270(2).7 Citing Gray v. Trimmaster, 173 S.W.3d 236 (Ky. 2005), the ALJ explained that the only exception to the 45-day rule is good cause which Huntsman had failed to demonstrate. The ALJ determined that nofraud was committed. The ALJ noted that one of the few things upon which the parties could agree was that at the time of the injury, Manning was working for Huntsman. The ALJ did not believe Manning was aware of the distinction in his status as a painter versus a brush remover, noting Manning's testimony that he simply knew he was working for Huntsman, which in the lay sense was correct. The ALJ dismissed Huntsman's motion to reopen for fraud and held that the April 28, 2010 settlement agreement was valid and enforceable.
Huntsman appealed to the Workers' Compensation Board ("Board"). By Opinion and Order rendered December 28, 2011, the Board dismissed Huntsman's appeal. The Board concluded that the ALJ's decision was interlocutory, because it only
The Board explained that "[i]n resolving Manning's claim against Huntsman, the ALJ is not bound by the settlement ... between the UEF and Manning." The Board noted KRS 342.125(7) which provides "no statement contained in the agreement, whether as to jurisdiction, liability of the employer, nature and extent of disability, or as to any other matter, shall be considered by the [ALJ] as an admission against the interests of any party." The Board instructed the ALJ to enter a
On May 9, 2012, the ALJ rendered an Opinion, Award and Order on remand. The ALJ explained that in the original Opinion he found that no fraud had occurred, that the Form 111 was not timely filed, and that the settlement between Manning and UEF was valid and enforceable; therefore, the only remaining issue was extent and duration of disability. The ALJ noted Dr. Bilkey's uncontroverted opinion; further, that Huntsman had sent Manning to Dr. Gleis for an IME, but had not filed his report. The ALJ did not believe Mr. Huntsman's (or his son's) testimony:
[They] would have the undersigned and potential appellate bodies believe that they, and only they, have ever told anything resembling the truth and that they were not provided notice of the claim nor given a chance to defend against it until it was too late. This position can only be maintained if the UEF investigator, the UEF attorneys, and the ALJ are all liars. I believe they have done all of this not only with a premeditated eye toward ... defeating this claim but, more importantly, ... to extending this claim so as to position themselves to avoid any direct liability for it.
The ALJ awarded Manning permanent total disability ("PTD") benefits at the rate of $426.67 per week based upon an average weekly wage ("AWW") of $640.00 and medicals. The award reflects that the UEF's liability "shall be fully discharged when the sums agreed upon in the Form 110 ... are paid[,]" even if...
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