Roy White v. Joe Jordan
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-WC-01209-COA
ROY WHITE AND KEVIN WHITE D/B/A R&K
TIMBER
APPELLANTS
v.
JOE JORDAN
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
6/29/2007
HON. MARCUS D. GORDON
NEWTON COUNTY CIRCUIT COURT
STEVEN D. SLADE
THOMAS L. TULLOS
CIVIL - WORKERS’ COMPENSATION
COMPENSATION COVERAGE AFFIRMED
AFFIRMED: 11/18/2008
CONSOLIDATED WITH
NO. 2007-WC-01212-COA
ROY WHITE AND KEVIN WHITE D/B/A R&K
TIMBER
APPELLANTS
v.
GEORGE LEE DUKES
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
6/29/2007
HON. MARCUS D. GORDON
NEWTON COUNTY CIRCUIT COURT
STEVEN D. SLADE
THOMAS L. TULLOS
CIVIL - WORKERS’ COMPENSATION
COMPENSATION COVERAGE AFFIRMED
AFFIRMED: 11/18/2008
BEFORE KING, C.J., ISHEE AND ROBERTS, JJ.
KING, C.J., FOR THE COURT:
¶1.
Roy White (Roy) and Kevin White (Kevin), conducting business under the name of
R&K Timber, appeal the judgment of the Newton County Circuit Court that affirmed the
Mississippi Workers’ Compensation Commission’s finding that R&K Timber was an
employer subject to the Mississippi Workers’ Compensation Act, and that its employees, Joe
Jordan and George Lee Dukes, were covered employees on the date of their injuries.
¶2.
On appeal, R&K Timber raises as error the following matters:
1.
2.
That in finding R&K Timber to be a covered employer, and
immediately subject to the requirements of the Mississippi Workers’
Compensation Act, the Commission held R&K Timber to a higher
coverage standard than that required by Mississippi Code Annotated
section 71-3-5 and that of the Commission’s own criteria for applying
for compensation coverage.
3.
That it was error to prematurely dismiss Linden Lumber Company since
it might have been a statutory employer and, thus, responsible for
securing compensation payments.
4.
¶3.
That an erroneous legal standard was applied in finding R&K Timber
to be a covered employer under the Mississippi Worker’s Compensation
Act, and the finding was not supported by substantial evidence.
That the acceptance of the benefits paid under the AIG policy should
have been considered as either an election of remedy or applied as
credit for payments made in lieu of compensation.
Finding no error, we affirm.
FACTS
¶4.
In June 2003, Roy decided to reenter the logging business. Prior to December 2002,
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he had been the manager of a logging business that was owned by his wife. This time he
established the business under the name of R&K Timber. R&K Timber was a joint venture
between Roy and his son, Kevin.
¶5.
The Whites hired a total of seven people. They employed two saw-hands, a skidder
operator, a mechanic, two truck drivers, and a foreman. Jordan and Dukes were the sawhands. Both Jordan and Dukes had previously worked for Hickory Timber Company, which
went out of business in December 2002 and had been owned by Roy’s wife and managed by
Roy.
¶6.
R&K Timber began its logging business on June 23, 2003. Just a few weeks later on
July 16, 2003, Jordan and Dukes1 were injured in a common accident during the course of
their employment. Both employees were severely injured when a tree fell and hit them.
¶7.
Jordan suffered a crushed chest and a transection of the spinal cord. He is paralyzed
from the waist down and confined to a wheelchair for the rest of his life. He suffers from
chronic pain. Dukes suffered a humeral fracture and an inferior subluxation. Since the
accident, Dukes has had difficulty with finger grip and numbness over the left small finger.
¶8.
At the time of the accident, R&K did not have workers’ compensation insurance
coverage. However, it did have an American International Group, Inc. (AIG), policy to cover
accidents to employees, but the policy specifically excluded workers’ compensation
coverage. Further, the policy stated that it was not meant to be used in lieu of workers’
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Since Jordan and Dukes were injured in a common accident, their claims have been
consolidated. The primary issue before this Court is whether R&K Timber was a covered
employer as defined by the Mississippi Workers’ Compensation Act. Therefore, unless
specifically noted, we will refer to the employees as merely Jordan to prevent any confusion.
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compensation insurance.
¶9.
In order to procure the AIG policy, R&K Timber was required to list its employees
and how much it expected to pay those employees. Following the accident and injuries which
serve as the basis of this action, the AIG policy did pay some amount to each of the injured
employees.
¶10.
Jordan and Dukes filed petitions to controvert on December 29, 2003. A hearing was
held before an administrative law judge (ALJ). The ALJ found that R&K Timber was a
covered employer as defined by the Mississippi Workers’ Compensation Act. Therefore,
R&K Timber should have procured workers’ compensation insurance to cover any injuries
that its employees might receive, including those injuries, that are the subject of this action.
The Commission adopted the findings of the ALJ and found that R&K Timber was a covered
employer as defined under the Mississippi Workers’ Compensation Act.
¶11.
Subsequently, R&K Timber appealed the Commission’s decision to the Newton
County Circuit Court. The circuit court found that there was substantial evidence to support
the decision of the Commission. Therefore, the court affirmed the Commission’s decision.
R&K Timber then instituted this appeal, which was deflected here for our review.
ANALYSIS
1.
That the Commission erred in finding that R&K Timber was a covered employer
under the Mississippi Workers’ Compensation Act.
¶12.
R&K Timber argues that it was not a covered employer as defined by the Mississippi
Workers’ Compensation Act, and that Jordan should have been required to prove by clear and
convincing evidence, and not merely by the preponderance of the evidence, that R&K Timber
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was a covered employer. R&K Timber argues that there was no clear and convincing
evidence that: (1) it regularly employed at least five persons or (2) Jordan was “regularly”
employed by R&K Timber, because the Legislature has not defined the term regularly.
Mississippi Code Annotated section 71-3-5 (Supp. 2008), defines a covered employer for
workers’ compensation as follows:
Every person, firm and private corporation, including any public service
corporation but excluding, however, all nonprofit, charitable, fraternal, cultural,
or religious corporations or associations, that have in service five (5) or more
workmen or operatives regularly in the same business or in or about the same
establishment under any contract of hire, express or implied.
¶13.
Despite R&K Timber’s assertion that the Legislature has not defined “regularly,” the
term “regularly” has been defined by the Mississippi courts. In Jackson v. Fly, 215 Miss.
303, 307-08, 63 So. 2d 536, 537 (1952), the supreme court quoted favorably both “58 Am.
Jur., Workmen’s Compensation, [s]ection 87, p. 640" and “Larson’s Workmen’s
Compensation Law, volume 1, [s]ection 52.20, page 769.” The supreme court further quoted
from Fowler v. Baalmann, Inc., 234 S.W.2d 11, 14 (Mo. 1950), which stated:
The word “regularly” is not synonymous with constantly or continuously. The
work may be intermittent and yet regular. Men may be regularly but not
continuously employed . . . . The word “regular” is used as an antonym of the
word “casual” and, when an employee is regular or “regularly” employed, he
is not casual.
Jackson, 215 Miss. at 308, 63 So. 2d at 537.
¶14.
It is clear that Jordan and sufficient others were “regularly” employed by R&K Timber
to bring the company within the definition of a covered employer. Both Jordan and Dukes
had worked with Roy in Roy’s wife’s logging business, and there was substantial evidence
that they had worked with the Whites for several weeks prior to the accident. This finding
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was supported by sufficient evidence and not contrary to the overwhelming weight of the
evidence.
¶15.
R&K Timber argues that in making a determination of whether it was a covered
employer, the proper standard of proof should have been clear and convincing evidence.
R&K Timber suggests that this higher standard is required by section 71-3-83 of the Workers’
Compensation Act, which provides for the possible imposition of criminal penalties for the
failure to secure payment of compensation. Miss. Code Ann. § 71-3-83 (Rev. 2000). The
argument of R&K Timber is at best syllogistically flawed and at worst disingenuous. The
standard of proof in this case is by a preponderance of the evidence. “To establish entitlement
to benefits under workers’ compensation, the claimant bears the burden of proving by a
preponderance of the evidence each element of the claim of disability.” Bryan Foods, Inc.
v. White, 913 So. 2d 1003, 1008 (¶18) (Miss. Ct. App. 2005) (citing Hedge v. Leggett & Platt,
Inc., 641 So. 2d 9, 13 (Miss. 1994)). “An appellate court must defer to an administrative
agency’s findings of fact if there is even a quantum of credible evidence which supports the
agency’s decision.” Bryan Foods, 913 So. 2d at 1007 (¶16) ( citing Hale v. Ruleville Health
Care Ctr., 687 So. 2d 1221, 1224 (Miss. 1997)). The appropriate standard of proof was
applied and met. R&K Timber cannot dodge its responsibility. There is no merit to this
assignment of error.
2.
That in finding R&K Timber to be a covered employer, and immediately subject
to the requirements of the Mississippi Workers’ Compensation Act, the
Commission held R&K Timber to a higher standard of coverage than required
by Mississippi Code Annotated section 71-3-5 and that of the Commission’s own
criteria for applying for coverage.
¶16.
R&K Timber argues that it should not have been required to obtain “immediate”
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workers’ compensation coverage and that the statute does not require such coverage.
However, R&K Timber does not cite any authority that dictates or implies the existence of
a waiting period to obtain workers’ compensation insurance.
¶17.
The claimants argue that this issue was not raised at the Commission in response to
the petition to controvert and that neither of the Whites testified that it was impossible for
R&K Timber to obtain workers’ compensation insurance. The evidence was that R&K
Timber did not apply for workers’ compensation insurance until after the accident and that
the failure to have workers’ compensation insurance was the result of its own business
practices, rather than any inability. The time and payroll data were within the control of
R&K Timber, and it is evident that the company could have and should have applied for
workers’ compensation insurance prior to the accident.
¶18.
The statute does not set any timetable for procuring workers’ compensation insurance,
it merely gives the coverage criteria. However, given the beneficent purpose of the Workers’
Compensation Act, it should be readily apparent to any business owner that workers’
compensation insurance is necessary as soon as the business meets the statutory definition
of a covered employer. R&K Timber was not held to any higher standard than any other
business by the Commission, and the insurance requirements are not inconsistent with the
statute.
¶19.
Because R&K Timber met the statutory definition of a covered employer pursuant to
Mississippi Code Annotated section 71-3-5, it was not error to require R&K Timber to have
coverage for any and all job-related accidents arising from and after it met that definition.
There is no merit to this assignment of error.
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3.
That it was error to prematurely dismiss Linden Lumber Company since it
might have been a statutory employer and, thus, responsible for securing
compensation payments.
¶20.
R&K Timber argues that it was error for Linden Lumber Company (Linden Lumber)
to be dismissed since Linden Lumber could be the “statutory employer” if R&K Timber were
the “subcontractor.” R&K Timber’s argument is that there was ample evidence of a
contractor/subcontractor relationship. Kevin testified that: (1) the timber was purchased by
Linden Lumber for harvesting; (2) the harvesting was subcontracted to him by Linden
Lumber; and (3) he would not have reentered the logging business but for Linden Lumber.
¶21.
R&K Timber does not argue that Linden Lumber was the statutory employer but only
that Linden Lumber could have been. This question was presented to the ALJ, who found
it lacking in merit. The ALJ noted that Linden Lumber was excluded from coverage under
section 71-3-5 of the Mississippi Workers’ Compensation Act. The relevant portion provides
that: “Any purchaser of timber products shall not be liable for workers’ compensation for any
person who harvests and delivers timber to such purchaser if such purchaser is not liable for
unemployment tax on the person harvesting and delivering the timber as provided by United
States Code Annotated, Title 26, Section 3306, as amended.” There was no evidence offered
of the existence of an employer-employee relationship between Linden Lumber or any of the
employees of R&K Timber. There was no evidence that Linden Lumber paid Jordan or that
Linden Lumber exercised any control over the employees of R&K Timber. In the absence
of such a relationship, Linden Lumber was not required to pay unemployment taxes for any
of R&K Timber’s employees. It was, therefore, exempt from the Mississippi Workers’
Compensation Act.
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4.
That the acceptance of the benefits paid under the AIG policy should have been
considered as either an election of remedies or allowed as a credit for payments
made in lieu of compensation.
¶22.
R&K Timber also argues that it should be given credit for the payments under the
AIG policy, despite the fact that the policy specifically excluded coverage for workers’
compensation and stated that it was not meant to be used in lieu of workers’ compensation
insurance. See Riddell v. Estate of Cagle, 227 Miss. 305, 309, 85 So. 2d 926, 927 (1956).
See also V. Dunn, Mississippi Workers’ Compensation, § 24 (3rd ed. 1982), in which the
following is stated:
The exclusiveness of the Act is also applied when the beneficiaries elect to
claim compensation, and in such event liability is imposed without reference
to other forms of insurance benefits which may have been secured, in lieu of
compensation insurance, by the employer for the benefit of the employee or his
dependants. Thus, liability under the Act is not discharged, in whole or in part,
by the payment or acceptance of the proceeds of a life and accident policy
taken out by the employer for the benefit of the employee and his dependents
and such payment may not be considered as an advance payment of
compensation.
¶23.
The fact that Jordan may have received benefits from the AIG policy is irrelevant to
the responsibility of the Whites and R&K Timber under the Act. The Commission and the
circuit court found their liability under workers’ compensation law, and we affirm the
judgment of the circuit court.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY IS
AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.
MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. LEE, P.J., NOT PARTICIPATING.
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