White v. Jordan


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Docket Number: 2007-WC-01209-COA
Linked Case(s): 2007-WC-01209-COA ; 2007-CT-01209-SCT

Court of Appeals: Opinion Link
Opinion Date: 11-18-2008
Opinion Author: KING, C.J.
Holding: Affirmed

Additional Case Information: Topic: Workers’ compensation - Covered employer - Immediate coverage - Section 71-3-5 - Subcontractor - Credit for payments
Judge(s) Concurring: Myers, P.J., Irving, Chandler, Griffis, Barnes, Ishee, Roberts, and Carlton, JJ.
Non Participating Judge(s): Lee, P.J.
Procedural History: Admin or Agency Judgment
Nature of the Case: CIVIL - WORKERS' COMPENSATION

Trial Court: Date of Trial Judgment: 06-29-2007
Appealed from: NEWTON COUNTY CIRCUIT COURT
Judge: Marcus D. Gordon
Disposition: COMPENSATION COVERAGE AFFIRMED
Case Number: 06-CV-240-NWG
  Consolidated: Consolidated with 2007-WC-01212-COA: ROY WHITE AND KEVIN WHITE D/B/A R&K TIMBER, APPELLANTS v. GEORGE LEE DUKES, APPELLEE

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: ROY WHITE AND KEVIN WHITE D/B/A R&K TIMBER




STEVEN D. SLADE



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: JOE JORDAN THOMAS L. TULLOS  

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    Topic: Workers’ compensation - Covered employer - Immediate coverage - Section 71-3-5 - Subcontractor - Credit for payments

    Summary of the Facts: R&K Timber was a joint venture logging business between Roy White and his son, Kevin. The Whites hired a total of seven people, including Joe Jordan and George Dukes, who 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. R&K Timber began its logging business on June 23, 2003. Just a few weeks later on July 16, 2003, Jordan and Dukes were injured in a common accident during the course of their employment. At the time of the accident, R&K did not have workers’ compensation insurance coverage. However, it did have an American International Group, Inc. policy to cover accidents to employees, but the policy specifically excluded workers’ compensation coverage. Jordan and Dukes filed petitions to controvert. The administrative law judge 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. The Commission adopted the findings of the ALJ and found that R&K Timber was a covered employer as defined under the Act. R&K Timber appealed to circuit court which found that there was substantial evidence to support the decision of the Commission. R&K Timber appeal.

    Summary of Opinion Analysis: Issue 1: Covered employer R&K Timber argues that it was not a covered employer as defined by the Workers’ Compensation Act, because there was no clear and convincing evidence that it regularly employed at least five persons or Jordan was “regularly” employed by R&K Timber. The word “regularly” is not synonymous with constantly or continuously. The work may be intermittent and yet regular. 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. Thus, this finding was supported by sufficient evidence. Issue 2: Immediate coverage R&K Timber argues that it should not have been required to obtain “immediate” workers’ compensation coverage and that the statute does not require such coverage. 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. Because R&K Timber met the statutory definition of a covered employer pursuant to 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. Issue 3: Subcontractor R&K Timber argues that it was error for Linden Lumber Company to be dismissed since Linden Lumber could be the “statutory employer” if R&K Timber were the “subcontractor.” The ALJ noted that Linden Lumber was excluded from coverage under section 71-3-5 of the Mississippi Workers’ Compensation Act. 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 and was exempt from the Mississippi Workers’ Compensation Act. Issue 4: Credit for payments R&K Timber 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. 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.


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