PIKE COUNTY BOARD OF EDUCATION VS. COMPENSATION MILLS (RANDALL), ET AL.
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RENDERED: AUGUST 1, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000149-WC
PIKE COUNTY BOARD OF EDUCATION
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-07-00240
RANDALL MILLS; HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND THOMPSON, JUDGES; GRAVES,1 SENIOR JUDGE.
THOMPSON, JUDGE: The Pike County Board of Education (Board of
Education) appeals from a decision of the Workers’ Compensation Board
affirming the Administrative Law Judge’s award of permanent partial disability
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Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
and medical benefits to Randall Mills for an injury incurred to his left hand and
hip. The Board of Education challenges the award on the basis that Mills was not a
Board of Education employee on the date of his injury and that the ALJ
erroneously found that Mills was a seasonal employee and, therefore, calculated
his benefits in accordance with KRS 342.140. We agree with the Workers’
Compensation Board that there was no error and affirm.
Mills, who has a degree in mathematics and work experience as a high
school band color guard instructor, was approached by Robert Scheeler, the band
director at Shelby Valley High School, to instruct the color guard section of the
high school band. At that time, Mills was also employed as a post-secondary
education math instructor. Scheeler offered, and Mills accepted, a verbal contract
providing that he would be paid $2,000 through the Shelby Valley Band Boosters
Association and a stipend of $600 through the Pike County Board of Education.
Pursuant to the agreement, Mills’ would begin work in the summer of 2006 and
end in November 2006, at the end of the competitive season.
On July 13, 2006, Mills began work with the band. On July 19, 2006,
during a color guard rehearsal in the school gym, Mills slipped and fell. He
experienced extreme pain and was transported to the hospital by ambulance. He
sustained a right hip fracture that required surgical treatment.
Mills signed an employment contract dated October 16, 2006, that
was signed by Scheeler, as band director, and Zelda Hall, as the Shelby Valley
Band Parent Treasurer. On November 16, 2006, he entered into an extra-service
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contract with the Pike County school system that was signed by Superintendent
Robert Wagner and, on that same date, received a letter of hire from Wagner.
Additional evidence of his employment included a W-2 from the Pike County
Board of Education indicating that Mills had wages of $600 in 2006 and a sitebased council agenda indicating that Mills had been hired as the replacement for
the prior Auxiliary Band Director.
The ALJ rejected the Board of Education’s contention that Mills was
not an employee at the time of his injury. As a finding of fact the ALJ stated:
If the Shelby Valley Band and its color guard had waited
upon the school board mechanism to approve plaintiff’s
employment, the season would already have been over.
It is apparent to the undersigned that everyone was
comfortable with plaintiff beginning employment on July
13, 2006, and even Principal Johnson testified that he
was aware that the plaintiff was performing his duties for
the band prior to the site based council meeting. All the
written documentation herein supports the plaintiff’s
position of employment.
On appeal, our standard of review of a decision of the Workers'
Compensation Board “is to correct the Board only where the . . . Court perceives
the Board has overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to cause gross
injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
The burden of persuasion is on the claimant to prove every element of a workers'
compensation claim. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App.
1984).
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The initial issue raised by the Board of Education is essentially one of
law. It contends that Mills was not hired pursuant to the procedures set forth in the
Kentucky Education Reform Act, KRS 160, et. seq., and, therefore, was not an
employee for the purpose of the remedies provided under the Kentucky Workers’
Compensation Act. Central to the Board of Education’s argument is its reliance on
the language contained in KRS 160.380 which provides that all appointments and
promotions are to be made by the superintendent. Similar provisions can be found
elsewhere in the Kentucky Education Reform Act, including KRS 160.370 and
KRS 160.390. In Tolliver v. Harlan County Bd. of Education, 887 F.Supp. 144
(E.D. Ky. 1995), the federal court held that KRS 160.380 vests exclusive authority
to appoint or promote individuals in the superintendent; therefore, the Board of
Education has no authority to appoint the plaintiff as an assistant superintendent.
Id. at 147-148.
The Board of Education argues that because only the superintendent
could have hired Mills, that the oral promises made by the band director were
inconsequential. It further relies on the proposition that a board of education
cannot become liable under implied agreements and must act only through its
records. Ramsey v. Board of Education of Whitley County, 789 S.W.2d 784
(Ky.App. 1990). Following the Board of Education’s reasoning, Mills was not
hired as an employee of the Board of Education until November 16, 2006, when he
received notification from the superintendent that he had been hired as the Band
Auxiliary Sponsor.
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Tolliver was an action pursuant to 42 U.S.C. § 1983, thus the
Workers’ Compensation Act was not implicated. The Board of Education would
have this Court ignore the unambiguous language contained in KRS 342.640,
which defines various classes of employees for purposes of the Act. In relevant
part, it provides:
The following shall constitute employees subject to the
provisions of this chapter . . .
(1) Every person, including a minor, whether lawfully
or unlawfully employed, in the service of an employer
under any contract of hire or apprenticeship, express or
implied, and all helpers and assistants of employees,
whether paid by the employer or employee, if employed
with the knowledge, actual or constructive, of the
employer;
....
(3) Every person in the service of the state or any of
its political subdivisions or agencies, or of any county,
city of any class, school district . . . under any contract of
hire, express or implied, and every official or officer of
those entities, whether elected or appointed, while
performing his official duties shall be considered an
employee of the state. . . .
The legislative intent in enacting KRS 342.640 was to relax the rigid requirements
of an employment contract. “KRS 342.640(4) does not refer to a contract for hire.
It protects workers who are injured while performing work in the course of an
employer's business by considering them to be employees despite the lack of a
formal contract for hire, unless the circumstances indicate that the work was
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performed with no expectation of payment or that the worker was a prisoner.”
Hubbard v. Henry, 231 S.W.3d 124, 130 (Ky. 2007).
It is a well recognized rule of statutory construction that when two
statutes pertain to the same subject matter, a specific statute will preempt a general
statute. Boyd v. C&H Transportation, 902 S.W.2d 823 (Ky. 1995). KRS 342.640
expressly states when a person shall be deemed an employee of a school district for
purposes of workers’ compensation coverage. It not only recognizes implied
contracts of hire but completely omits any reference to the administrative hiring
practices to be invoked under the Kentucky Education Reform Act. KRS 342.640
specifically deals with the definition of an employee within the context of the
Workers’ Compensation Act; therefore, it prevails.
We agree with the ALJ and the Board that Mills was an employee of
the Board of Education on the date of his injury which was confirmed by the
documents subsequently executed. As the Board noted, significant to this
determination is that “the entire agreed upon remuneration was paid, including the
$600 stipend originally promised by the band director, by the Board of Education.”
The Board of Education’s final argument is that Mills was not a
seasonal employee because, according to Mill’s testimony, the work of a color
guard instructor can be carried on throughout the year.
The question of whether particular work is seasonal depends on the
circumstances of each case and the focus of the inquiry is “what makes an
occupation, on a case-by-case basis, actually and exclusively seasonal.” Travelers
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Insurance Co. v. Duvall, 884 S.W.2d 665, 667 (Ky. 1994). The effect of seasonal
employment in the calculation of the employee’s average weekly wage was
explained in Department of Parks v. Kinslow, 481 S.W.2d 686, 688-689 (Ky.
1972):
The overriding purpose of workmen's
compensation is to give recompense to an injured
employee (or in this instance the widow of the deceased
employee) for the loss of earning capacity due to a workconnected accident, but there are limitations. The
apparent intent of the legislature in enacting KRS
342.140(2) was to reduce the amount of recovery if the
employment was with a business carried on naturally
only for a particular season of the year. The seasonal
worker should not receive the same compensation as that
of a nonseasonal worker. In the present instance Kinslow
remained idle, so far as work in compensation-covered
employment was concerned, six months out of the year.
Under the board's award claimant would receive as
compensation $2438 for 12 months, while Kinslow
earned only $1829.10 for the 12 months before the
accident. It might be argued that the same result (that
benefits could exceed earnings) could arise where a
person without previous earnings worked for a short
while in nonseasonal employment when he was involved
in an accident. That is true. But the compensation law
clearly permits that. Valid complaint cannot be made
that a seasonal worker has no way to establish a base pay
equal to a nonseasonal worker because all of the seasonal
worker's wages-those earned in seasonal work as well as
those earned in regular employment-for twelve months
next before the injury or death are used to determine the
average weekly wage. KRS 342.140(2).
The calculation of Mills’ average weekly wage was complicated by
the relatively short duration of his work for the Board of Education prior to his
injury and his minimal pay compared to his employment as a mathematics teacher.
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Our review is hampered by the lack of findings of fact by the ALJ who merely
stated as follows:
Average weekly wage is somewhat problematic as
plaintiff does not fit comfortably under any part of the
statute. The Administrative Law Judge believes that the
best estimate of plaintiff’s average weekly wage in 2006
is his own calculation that he earned $13, 979.43 over a
50 week period and therefore has an average weekly
wage of $279.59.
No finding was made whether Mills was a seasonal employee or reference made to
the section of KRS 342.140 relied on in calculating Mills’ average weekly wage.
Despite this failure in the ALJ’s findings, the Board of Education’s
failure to file a petition for reconsideration requesting further findings limits the
scope of review on appeal to whether the ALJ’s conclusion is so unreasonable
under the evidence that it must be reversed as a matter of law. Eaton Axle Corp. v.
Nally, 688 S.W.2d 334 (Ky. 1985).
We agree with the Board that the ALJ’s conclusion was within the
realm of reasonableness. Although Mills testified that there are schools with
winter band programs, he had never been employed in such a capacity and that he
was hired only to work from the summer to fall season. Under the circumstances,
we find nothing unreasonable in the ALJ’s characterization of Mills’ work as
seasonal.
Based on the foregoing, the opinion of the Workers’ Compensation
Board is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
Brian T. Reed
Pikeville, Kentucky
BRIEF FOR APPELLEE, RANDALL
MILLS:
Robert J. Greene
Pikeville, Kentucky
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