UNINSURED EMPLOYERS' FUND v. BELLSOUTH TELECOMMUNICATIONS, INC. D/B/A SOUTH CENTRAL BELL TELEPHONE CO.; LESLIE A. JOHNSON; 4-WAY HOUSING CORPORATION; SPECIAL FUND; HON. THOMAS A. DOCKTER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: November 13, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001083-WC
UNINSURED EMPLOYERS' FUND
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-14775
v.
BELLSOUTH TELECOMMUNICATIONS, INC.
D/B/A SOUTH CENTRAL BELL TELEPHONE CO.;
LESLIE A. JOHNSON; 4-WAY HOUSING
CORPORATION; SPECIAL FUND;
HON. THOMAS A. DOCKTER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND MILLER, JUDGES.
MILLER, JUDGE:
MILLER, JUDGE.
The Uninsured Employers’ Fund
(UEF) asks us to review an opinion of the Workers’ Compensation
Board (board) rendered April 3, 1998.
(KRS) 342.290.
Kentucky Revised Statute
We affirm.
On February 6, 1993, Leslie A. Johnson, Jr. (Johnson),
injured himself in a work-related accident while in the employ of
4-Way Housing Corporation (4-Way), an asbestos removing company.
At the time of the accident, employees of 4-Way were removing
asbestos from a building owned by BellSouth Communications Inc.
(BellSouth).
BellSouth and 4-Way were parties to a contract
whereby 4-Way was committed to provide up to $250,000.00 in
asbestos removal for BellSouth over a one-year period.
BellSouth
owned approximately 350 pieces of property in Kentucky.
After Johnson filed for benefits under the Kentucky
Workers’ Compensation Act, the administrative law judge (ALJ)
held 4-Way and the UEF liable for benefits.
He determined that,
under these circumstances, BellSouth does not qualify as a
contractor for purposes of KRS 342.610(2).
As such, it is not
responsible for any benefits owed to Johnson.
KRS 342.610(2)
reads in relevant part as follows:
A contractor who subcontracts all or any part
of a contract and his carrier shall be liable
for the payment of compensation to the
employees of the subcontractor . . . . A
person who contracts with another:
. . .
(B) To have work performed of a kind which is
a regular or recurrent part of the work of
the trade, business, occupation, or
profession of such person shall for the
purposes of this section be deemed a
contractor, and such other person a
subcontractor . . . .
In a separate opinion, the ALJ found Johnson to be 60%
occupationally disabled.
issue of liability.
The UEF appealed to the board on the
Affirming, the board concluded “there is no
essential relationship between asbestos removal and providing
telecommunication services.”
This appeal followed.
The UEF makes the following arguments:
1 Bell South is such a large property holder
that removing asbestos from its buildings is
-2-
a necessary and essential part of its
business.
2 Any activity which a business is required
by law to perform is a necessary part of that
business.
The evidence establishes BellSouth is in the business
of telecommunications.
Asbestos removal is a highly specialized
trade which BellSouth has never performed.
We agree with the
board that asbestos removal is not “a regular or recurrent part
of the work of the trade, business, occupation or profession” of
BellSouth.
Further, we find no merit in the UEF’s contention
that asbestos removal became a part of BellSouth’s business
simply because the law required it to remove asbestos from
certain of its properties.
absurd result.
Such a proposition would lead to an
In sum, we believe the board committed no error
under the precepts of Western Baptist Hospital v. Kelly, Ky., 827
S.W.2d 685 (1992).
For the foregoing reasons, the decision of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE/BELLSOUTH:
A. B. Chandler III
Attorney General
and
Michael A. Richardson
Dorothy J. Chambers
Louisville, KY
BRIEF FOR APPELLEE/JOHNSON:
-3-
Assistant Attorney General
Frankfort, KY
Heidi Schissler
Louisville, KY
BRIEF FOR APPELLEE/
SPECIAL FUND:
David W. Barr
Louisville, KY
-4-
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