Wilhelm v. Parsons

2016 Ark. App. 56, 481 S.W.3d 767, 2016 Ark. App. LEXIS 52
CourtCourt of Appeals of Arkansas
DecidedJanuary 27, 2016
DocketCV-15-668
StatusPublished
Cited by8 cases

This text of 2016 Ark. App. 56 (Wilhelm v. Parsons) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767, 2016 Ark. App. LEXIS 52 (Ark. Ct. App. 2016).

Opinion

KENNETH S. HIXSON, Judge

I lAppellant Carl Wilhelm appeals the dé-cisión of the Arkansas Workers Compensation Commission that found him to be an employee of appellee Chuck’s Metal Build-tags, Inc. (hereinafter “CMB”) and found that CMB procured workers’ compensation tasurance coverage, such that an exception to the'exclusive-remedy doctrine did not. apply. This finding rendered Wilhelm’s exclusive remedy to be under the Workers’ Compensation Act and precluded a tort action against CMB. Wilhelm argues on appeal that the Commission’s decision is reversible because (1) even if Wilhelm was an employee, CMB failed to procure workers’ compensation insurance coverage in compliance with Arkansas law, and (2) the Commission faded to. adhere to rules of fair play in administering the hearing. We affirm. .

CMB-is a company that fabricates and constructs metal buildings." Appellant, who had worked for CMB since 1999,-was seriously injured at work on a CMB construction | asite on July 16,2009. Appellant was standing on a platform and welding when he fell, sustaining major injuries. Appellant did not file a workers’ compensation claim 1 but did file a negligence action in Franklin County Circuit Court against CMB and others in 2012. CMB asserted the exclusive-remedy doctrine in its answer as an affirmative defense. ApPellant asserted that he was an indePen-dent contractor and that the exclusive-remedy doctrine did not apply. The cir-cuk court transferred the matter to the Commission, as the Commission had the exclusive jurisdiction to determine appel-⅛⅛⅛ status under the law and whether the exclusive remedy doctrine applied.

A “g bf ^ ⅛ A“trative LaY Judge followed, whose findings were affirmed and adopted by the Commission, Various evidentiary objections were raised and ruled upon during the hearing. The ALJ ultimately found that appellant was an etaployee of CMB. The ALJ rejected Wilhelm’s contention that he wás an independent contractor of construction and welding services, The ALJ further rejected Wilhelm’s contention that CMB-. failed to secure workers’ compensation insur-anee, such that an exception to the exclusivity doctrine might be triggered,

The evidenee at the hearing upon which the„ALJ made these findings was as fol. lowg_ Linda Parsons, the wife of CMB’s 0TOier> ■ testified that she was the bookkeeper and did payroU and paid other bfflg for ⅛6 company. ghe stated that appel-¡ard worked with her husband and son, that he was sometimes reimbursed for travel expenses, and that he was paid based upon hours turned in to her each week, not by the job. Linda said that the |scompany sent appellant a 1099 each year and did not withhold any amounts from appellant’s weekly checks-. Payroll and bookkeeping records were submitted into evidence. Linda considered appellant an employee of CMB. She testified that CMB had procured workers’ compensation insurance coverage at the time of appellant’s injuries, although she said that the application did not specifically list any employees. Linda said that CMB- paid a $1,000 premium for this insurance coverage, which was purchased in case one of the people working for them was: hurt. Linda said that, right after the. work accident, she mentioned the workers’ compensation insurance coverage to appellant’s wife several times, offering to call CMB’s insurance agent, but thqt his wife refused, stating that she had her own. health insurance through Blue Cross and Blue Shield.

Two coworkers of appellant’s—Dennis Coburn and Jason Walker 2 testified that they heard Linda tell appellant’s wife that CMB .had workers’ compensation insurance. Coburn and Walker also discussed the type of labor they provided to CMB, as well as the working conditions.

Chuck Parsons, owner of CMB, testified that CMB erects metal buildings and had been in business for ■ about ten years. Chuck said that appellant worked for him as a laborer, doing welding, lifting, hammering, and whatever needed to be done, some at the CMB shop and some at specific construction sites. Chuck acknowledged that appellant had his own hood, gloves, and welder, but said that he used both CMB’s and his own tools. He said that appellant used the company’s welder more than his own and that appellant was |4using company tools—a welder, rods, and platform—on the day of the injury. Appellant had been to this worksite a few days beforehand and was present with another worker at the direction of CMB on the day he was injured. According to Chuck, appellant was not required to bring his own tools to a job site.

Chuck explained that appellant would report to the CMB shop to get his work assignments each day. Although appellant was able to work independently, he was not doing specialized work and he (Chuck) had the authority to tell appellant what to do as part of the construction .crew. Chuck testified that he occasionally hired subcontractors to do specific jobs, paying them per job and not by the hour like appellant. Chuck confirmed hearing appellant’s wife decline using CMB’s workers’ compensation coverage. Chuck said that he was proud that he had his first workers’ compensation insurance policy.

Ray Parsons, Chuck’s son, testified that he acted as supervisor for CMB when his father was not there. Ray considered appellant an employee of CMB,-along with .the . other construction workers on the crew.. Ray said that appellant had his own equipment but that appellant infrequently used it on job sites. He stated that appellant used CMB. trailers to haul materials. Ray testified-that appellant had supervisory authority when he and his father were not on site, but that he (Ray) had the authority to tell appellant how to do his work if needed.

Jane Derden testified that she was an insurance auditor who performed an audit of CMB’s workers’ compensation insurance coverage provided by Technology Insurance • Company. Jane stated that CMB had such coverage in effect from April 2009 to April 2010. Her review of the file notes did not reveal that appellant was ever listed on the policy as an | ^employee. Her understanding was that if a person was left off the insurance policy, the insurance carrier could come back later to ask for additional premiums. The eighteen-page “Workers’ Compensation and Employers Liability Insurance Policy” was made part of the record.

Appellant’s wife, Barbara Wilhelm, testified that her husband was a contract laborer for CMB, going to CMB and doing the jobs they, assigned to him. She- denied ever being told that CMB had workers’ compensation insurance, and when her husband was admitted to the hospital, they (the hospital) asked for her insurance card. Barbara had told her own health insurance company that her husband’s accident was non-work related; Blue Cross and Blue Shield paid substantial sums for his care. She agreed that they had never attempted to file a workers’ compensation claim. -

Appellant testified that he believed him.self, and intended, ,to be a subcontractor for CMB, having his own. tools and driving his own truck to work. He did. not recall being reimbursed for travel expenses. Appellant claimed to work without supervision, but if Chuck or Bay told him to do something, he would do it. Appellant agreed .that he had worked almost exclusively for .

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Cite This Page — Counsel Stack

Bluebook (online)
2016 Ark. App. 56, 481 S.W.3d 767, 2016 Ark. App. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilhelm-v-parsons-arkctapp-2016.