ROBERT ROBINSON V. DAVE GATEWOOD, ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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'
RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
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ON APPEAL FROM COURT OF APPEALS
CASE NO. 2009-CA-002328-WC
WORKERS' COMPENSATION BOARD NO. 08-00659
UNINSURED EMPLOYERS' FUND ;
HONORABLE RICHARD M. JOINER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
An Administrative Law Judge (ALJ) dismissed the claimant's application
for benefits, having found that he was not an employee at the time of his
injury. The Workers' Compensation Board and the Court of Appeals affirmed .
Appealing, the claimant asserts that the ALJ erred as a matter of law in failing
to find that he was an employee .
We affirm. The record did not compel a decision in the claimant's favor
and contained substantial evidence to support the ultimate finding.
The claimant's application for benefits indicates that he was born in
1954 and has a sixth-grade education. His employment history includes work
for a construction company as a laborer and for a factory as an assembler as
well as self-employment from 2003 to 2008 as a mason. He alleged that he
sustained disabling injuries to his left wrist and neck on January 17, 2008,
when he fell from a height of 12 to 15 feet while operating a bucket truck in the
process of helping to dismantle a barn.
The claimant named Dave Gatewood as his employer . Upon certification
that Gatewood lacked workers' compensation insurance, the Chief ALJ joined
the Uninsured Employers' Fund as a party. Gatewood denied the claim on the
ground that the claimant was an independent contractor rather than
Gatewood's employee at the time of his injury .' The evidence consisted of the
claimant's deposition and hearing testimony and Gatewood's deposition .
The claimant testified when deposed by the defense that he met
Gatewood in June or July 2007, after a man in Sharpsburg agreed to give him
a barn if he would dismantle and remove it. He stated that he had never done
so before . His ex-wife knew Gatewood and knew that he tore down barns and
houses, so he contacted Gatewood to ask if he wanted to purchase the barn.
Gatewood did not, but he agreed to help dismantle it and share the profit from
selling it. The claimant stated that they finished the job in late October 2007 .
Gatewood sold the barn over the internet for $10,500 and received over $6,900
because he provided a bucket truck or boom truck and a forklift, provided fuel
1 Gatewood also asserted that the claimant was an exempt employee under KRS
342.650(2) or under KRS 342.650(5), the agricultural exemption from workers'
compensation coverage . The Board reversed an earlier decision in which the ALJ
dismissed the claim under the latter provision and ordered the claim to be
remanded for further proceedings. No appeal was taken. The ALJ's decision on
remand is at issue presently.
for the vehicles, and paid the wage of another man who helped . The claimant
received about $3,500.
The claimant testified that Gatewood called him in January 2008; told
him that he was tearing down a barn in Cynthiana ; and offered to pay him $1.2
per hour to help. The claimant stated that only the braces and posts remained
standing when he arrived and that a man named George was running the
bucket. He stated that he ran it on the second day because George was absent
and that Gatewood asked him to run it again on the third day because he was
faster than George . He stated that he worked about eight hours per day for
two and a half days. Gatewood paid him after the injury with a check for about
$250 from which no tax was deducted and also gave him money a few times
after the injury.
The claimant testified that Gatewood told him he had torn down several
cabins and barns in the past. He also told him that he wanted him to help
with two or three other nearby barns when they finished the Cynthiana barn.
He stated that he knew how to remove. pins and dismantle a barn from his
experience on the Sharpsburg barn .
When deposed by his attorney Gatewood testified that he had farmed for
most of his life and had operated a construction business with his brother for
about ten years. He stated that he had operated a small business named
Grendel, Inc ., for the past 12 years. He also did two or three jobs per year
inspecting reclamation sites for the Office of Surface Mining and received social
security retirement income. Subsequent testimony indicated that Gatewood
was the sole shareholder and officer of Grendel. The business dismantled
structures, primarily log cabins, and received payments for Gatewood's
reclamation site inspections .2
Gatewood stated that he first met the claimant in May or June of 2007,
after the Sharpsburg barn was partially dismantled . He informed the claimant
that they could get more money by selling the timber frame separately and they
formed ajoint venture to do so . He stated that the claimant sold and kept the
profit from most of the tin, tier rails, and boxing, but they split the profit from
the frame . Gatewood stated that he and another man worked for about a week
cleaning up the site and that he received most of the profit from the frame
because he bore the expenses.
When asked about any special skill involved in Robinson's work on the
barn, Gatewood testified that not many people could operate a bucket truck at
the top of a barn. He also stated that dismantling a timber frame requires
special skills because the frame will collapse if the wooden pegs that join the
timbers are not removed in the proper sequence . He stated that the claimant
brought large punches and hammers to the Sharpsburg site, which were used
to knock the pegs loose, and also brought a generator, which they used when
an electric drill was required.
Gatewood testified that the owner of the Cynthiana barn gave it to him
personally rather than to Grendel. He agreed to remove the rubbish that it
2 When questioned about Grendel's assets,
Gatewood stated that he thought his son
owed the business about $40,000.00 according to courthouse records but that it
had no other assets .
contained and dismantle it. Gatewood denied that he owned any other barns.
He stated that Grendel paid George Dietz a flat fee to haul the rubbish away.
Gatewood stated that he and Ralph and Junior White removed the boxing, roof,
and rafters, then he rented a bucket truck. He stated that he and the Whites
"piddled around with it" for one day but "didn't'get along very good," so he
contacted the claimant.
Gatewood stated that the claimant controlled the bucket and placement
of the bucket truck; the time when he came and left the job; and whether to
work on a particular day. Gatewood stated that he had never done this type of
work before the Sharpsburg job; that he knew no one else who had the
claimant's skills ; and that he relied on the claimant's expertise concerning how
and in what order to dismantle the frame. Grendel paid for the bucket truck
and the claimant's work and the claimant also received some money for
gasoline . Gatewood stated that the claimant completed about half of the frame
in a day and a half and that it would have taken about another day and a half
to complete the job.
Gatewood testified on cross-examination that his only agreement with
the claimant regarding the Cynthiana barn was for him to operate the bucket
truck and knock out the pegs for $12.00 per hour. He acknowledged that the
claimant might have actually worked for two and a half days . He stated that
everybody was supposed to be at the barn at about daylight "or hopefully
everybody [would] get there about 7 :30, start work about 8 :30." The Whites got
there a little earlier sometimes when it was cold to start the machinery and get
it "limbered-up." The claimant arrived at about 8:00 or 8:30 . Gatewood
testified that he and the Whites finished taking down the frame after the
claimant's injury. He paid them by the hour and sold the materials.
Gatewood also testified on cross-examination that the claimant gave him
the punches and large hammer when they finished the Sharpsburg job, stating
that he would never need them again. Gatewood stated that he did not
anticipate needing the claimant's help with the Cynthiana barn but that the
claimant had "nailed it in his deposition" when stating that he and the Whites
were too old to do it alone. He explained that the Whites were "about as old as
I am, so we weren't getting along best in the world ."3 He stated that he and
George Dietz were on the scene when the claimant was injured.
Attached to Gatewood's deposition was a copy of a document styled
"Demolition Contract." The contract indicates that Gatewood agreed to
demolish Daniel Peters' barn and remove it as well as any material found
inside . Gatewood agreed to be responsible for general liability and workers'
The claimant testified at the hearing that Gatewood taught him how to
dismantle a barn . He acknowledged that only the posts of the Cynthiana barn
remained standing when he arrived; that removing pins required special skill;
that he had such skill; and that he removed them alone . He reiterated his
previous statements that he was paid by the hour and that Gatewood told him
Gatewood testified early in his deposition that he was born in 1938.
he had two or three more barns to dismantle . He acknowledged that he had
been self-employed previously, doing mostly concrete block work.
After summarizing the issues, the ALJ stated as follows:
Robert Robinson testified at the hearing. I had an
opportunity to observe the testimony and am in the
position to judge his credibility and demeanor .
Addressing the threshold issue of whether the claimant worked as an employee
or independent contractor at the time of his injury, the ALJ listed the factors
discussed in Ratliff v. Redmon4 and Uninsured Employers' Fund v. Garland$ and
added an additional factor from the Restatement (Second) of Agency -- "whether
the principal is or is not in business ." Then the ALJ analyzed the evidence as
In this case the plaintiff and the defendant did not
define their relationship by way of written contract.
There was a "Demolition Contract" between Daniel
4 396 S.W.2d 324 (Ky. 1965) . The nine Ratliff factors were: 1 .) the extent of control
that the alleged employer may exercise over the details of the work; 2 .) whether the
worker is engaged in a distinct occupation or business ; 3.) whether the type of work
is usually done in that locality under the supervision of an employer or by a
specialist, without supervision ; 4.) the degree of skill required by the work; 5 .)
whether the worker or alleged employer supplies the instrumentalities, tools, and
place of work; 6 .)the length of the employment; 7.) the method of payment, whether
by the time or the job; 8.) whether the work is a part of the regular business of the
employer; and 9 .) the intent of the parties. Ratliffemphasized that the workers'
compensation approach to analyzing the parties' relationship was broader and more
liberal than the approach found in the law of master and servant or principal and
805 S.W.2d 116 (Ky. 1991) . Relying on Chambers v. Wooten's IGA Foodliner, Ky.,
436 S.W.2d 265, 266 (1969), the Garland court noted that the four primary factors
in the analysis included : 1.) the nature of the work as related to the business
generally carried on by the alleged employer; 2 .) the extent of control exercised by
the alleged employer; 3 .) the professional skill of the alleged employee; and 4.) the
true intentions of the parties. The court emphasized that at least the four primary
factors must be considered and that a proper legal conclusion could not be drawn
from only one or two factors . Id. at 119.
Peters, the owner of the barn, and Dave Gatewood, the
putative employer of Robert Robinson, but that has no
bearing on whether Robinson is an employee of
Gatewood . Mr. Gatewood had made substantial
progress in fulfilling his contract to demolish the barn
when Mr. Robinson was brought on board. When he
was faced with the frame of the barn which required
special knowledge and special tools to take down, Mr.
Gatewood called on Mr. Robinson . Mr . Robinson
acknowledged that he knew the special way to take the
pins out to bring the barn down properly. Mr.
Robinson acknowledged that he had generally been
Mr. Robinson was self-employed in the construction
business . Mr. Gatewood acquired log cabins and took
them apart, selling the wood. This was done normally
working by himself. Mr. Gatewood had no knowledge
of tear down of the barn from the beginning of the
project . Mr . Gatewood exercised no control
whatsoever over Robinson's work. There does not
appear to be any prior agreement that Mr. Robinson
was an employee of Mr. Gatewood.
Under the criteria contained in Uninsured Employers'
Fund v. Garland, supra, Mr. Robinson does not appear
to be an employee of Mr. Gatewood .
Having concluded that the claimant was not an employee, the ALJ dismissed
the claim. The claimant did not file a petition for reconsideration or request
any specific findings . He appealed.
The claimant took issue with the accuracy of some of the findings on
which the ALJ based the decision. He noted for example that Gatewood clearly
had knowledge of how to dismantle a barn from having done it previously in
Sharpsburg ; that Grendel was in the business of dismantling structures; that
his own previous work in construction involved working with concrete, not
demolition; and that Gatewood's own testimony indicated that he "hired" the
claimant only after he and the Whites were unable to do the job due to their
age. He also argued that the Demolition Contract anticipated that Gatewood
would have employees on the site that were entitled to workers' compensation
coverage and that KRS 342 .640(4) did not require an employee to have a
contract of hire.6 He also argued that the facts the ALJ relied upon failed to
support the finding that he was not an employee .
The Board reviewed the legal standard for analyzing the evidence of the
parties' relationship "in light of the ALJ's inadequate findings under a
minimum" of the factors listed in Ratliff and refined in Chambers v. Wooten's
IGA Foodliner. 7 The Board noted that the ALJ appeared to have considered
only two of the four Chambers factors - the nature of the work as related to the
nature of the alleged employer's business and the professional skill of the
alleged employee . Moreover, the Board took issue with the ALA conclusion
that Gatewood exercised "no control whatsoever" over the claimant's work,
noting that he did exercise some control. . The Board affirmed the decision,
however, reasoning that the claimant failed to petition for reconsideration in
order to request adequate findings of fact and failed to complain in his appeal
brief that the ALJ analyzed the evidence inadequately . The Court of Appeals
agreed and affirmed.
6 See Hubbard v. Henry, 231 S.W.3d 124, 130 (Ky. 2007). "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 performed with no expectation of payment or that the worker was a
7 436 S .W.2d 265 (Ky. 1969).
Appealing, the claimant asserts that he was entitled to a favorable
decision based on the arguments he raised to the Board. We disagree.
As noted by the Board and the Court of Appeals, the ALJ failed to
conduct a thorough analysis of the evidence under the Ratliff factors as they
were refined subsequently in Chambers . Yet, the claimant failed to request
specific findings concerning the remaining factors and failed to preserve an
argument that the ALJ did not conduct a complete analysis . His grounds for
appeal are that the ALJ based the decision on inaccurate factual findings and
that the facts the ALJ relied upon failed to support the finding that he was not
an employee . We disagree.
KRS 342 .285 designates the ALJ as the finder of fact in workers'
compensation cases. It vests the ALJ with the sole authority to judge the
credibility of witnesses, draw reasonable inferences from the evidence, and
weigh conflicting evidence .$ Only a finding that is unreasonable under the
evidence may be reversed on appeal .9
The parties presented conflicting testimony concerning the nature of
their relationship. We are not convinced that the claimant has shown the ALJ
to have misunderstood any relevant evidence. Although the claimant argues
that the ALJ mischaracterized certain evidence, the ALJ noted specifically that
his credibility was evaluated at the hearing. The ALJ appears to have found
8 Paramount Foods, Inc. v. Burkhardt, 695 S .W.2d 418 (Ky. 1985) ; Caudill v. Maloney's
Discount Stores, 560 S .W.2d 15, 16 (Ky. 1977) .
Lizdo v. Gentec Equipment, 74 S.W.3d 703, 705 (Ky. 2002) ; Special Fund v. Francis,
708 S.W.2d 641, 643 (Ky. 1986).
him less credible than Gatewood in some respects and to have drawn
unfavorable inferences from the evidence . Despite the claimant's assertions to
the contrary, the record did not compel a decision in his favor and contained
substantial evidence to support the ultimate. finding.
The decision of the Court of Appeals is affirmed.
All sitting. Minton, C.J. ; Abramson, Noble, Schroder and Scott, JJ .,
concur. Venters, J ., dissents by separate opinion in which Cunningham, J.,
VENTERS, J ., DISSENTING : I respectfully dissent because I believe the
Ratliff and Chambers factors weigh more favorably toward the conclusion that
Robinson was an employee, rather than an independent contractor. For
example, Gatewood was engaged in the business of demolition . He owned the
tools and obtained the bucket truck used by Robinson . Robinson was to be
paid by the hour and he worked on the schedule set by Gatewood . I would
therefore reverse the opinion of the Court of Appeals .
Cunningham, J ., joins this dissenting opinion.
COUNSEL FOR APPELLANT,
ROBERT ROBINSON :
Morgan, Madden, Brashear, Collins & Yeast
921 South Main Street
London, KY 40741
COUNSEL FOR APPELLEE,
Thomas Bennett Clark
Clark Law Office, Inc.
851 Corporate Drive
Lexington, KY 40503
COUNSEL FOR APPELLEE,
UNINSURED EMPLOYERS' FUND :
James Robert Carpenter
Office of the Attorney General
Uninsured Employers' Fund
1024 Capital Center Drive
Frankfort, KY 40601