Kukor v. Northeast Tree Service, Inc., et al.
| Docket Number: | 2010-WC-01280-COA Linked Case(s): 2010-WC-01280-COA ; 2010-CT-01280-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-26-2011 Opinion Author: Myers, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Workers' compensation - Joint employment - Alter ego - Section 71-3-31 - Extent of disability - Section 71-3-3(i) - Loss of wage-earning capacity Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton and Russell, JJ. Non Participating Judge(s): Irving, P.J., and Maxwell, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS' COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 07-15-2010 Appealed from: Madison County Circuit Court Judge: William E. Chapman, III Disposition: AFFIRMED MISSISSIPPI WORKERS’ COMPENSATION COMMISSION’S DECISION FINDING KUKOR WAS AN EMPLOYEE OF NORTHEAST WHEN HE SUFFERED A COMPENSABLE INJURY RESULTING IN A 75% LOSS OF WAGEEARNING CAPACITY Case Number: 2007-239(C) |
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| Consolidated: Consolidated with 2007-WC-01783-COA Michael Kukor v. Northeast Tree Service, Inc., Liberty Mutual Insurance Company, Jay's Service Company and First Comp Insurance Company; Madison Circuit Court; LC Case #: 2007-239(C); Ruling Date: 09/14/2007; Ruling Judge: William E. Chapman, III | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Michael Kukor |
JOHN HUNTER STEVENS |
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| Appellee: | Northeast Tree Service, Inc., Liberty Mutual Insurance Company, Jay's Service Company and First Comp Insurance Company | WILLIAM BIENVILLE SKIPPER, JAMES M. ANDERSON, ASHLEY PRADEL |
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| Appellee #2: | ||||
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| Topic: | Workers' compensation - Joint employment - Alter ego - Section 71-3-31 - Extent of disability - Section 71-3-3(i) - Loss of wage-earning capacity |
| Summary of the Facts: | Michael Kukor was seriously injured when he fell trimming a tree in the course of his employment. It was not disputed that the injury was compensable; the issues before the Workers’ Compensation Commission were the extent of Kukor’s resulting disability and whether the two businesses he worked for at the time of the injury were one employer for the purposes of the workers’ compensation statute. The Commission found that Kukor was working only for Northeast Tree Service at the time of his injury and that Northeast and Jay’s Service Company were not one employer. It also rejected Kukor’s contention that he was permanently, totally disabled, finding he had suffered only a 75% loss of earning capacity. Kukor appeals. |
| Summary of Opinion Analysis: | Issue 1: Joint employment Pursuant to section 71-3-31, the average weekly wage prior to injury is used to determine compensation for an injured worker’s lost earnings. This wage calculation is determined from the earnings of the injured employee in the employment in which he was working at the time of the injury, and compensation is limited to what the claimant earned in the job in which he was working at the time of his injury. Nonetheless, the weekly wage includes all wages from the employer, regardless of whether the employee nominally holds more than one position with that employer. The Commission determined that Kukor was working only for Northeast at the time of his injury; consequently, it used his average weekly wage from only that company to determine the amount of his benefits. Kukor argues that Jay’s and Northeast are “alter egos” of each other, essentially that they are the same company. He argues that Jay’s is an “illegal” sham company created to reduce workers’ compensation costs. The Commission noted that both Northeast and Jay’s were owned and operated by Albritton. It found, however, that Albritton had “gone to great lengths to separate [them]” and that his “reasons for operating two businesses that compliment one another are, insofar as we can tell, legal, legitimate, and understandable.” The Commission noted that the “businesses had separate insurers, different names, and different areas of expertise.” The Commission’s decision on this issue is a factual finding, entitled to great deference on appeal. It is true, as Kukor argues, that Albritton owned and managed the two companies. However, as the Commission noted, Northeast and Jay’s have distinct, if complimentary, business purposes. There is a clear demarcation between the activities of the two businesses. Kukor also argues that this is a case of “dual employment” or “joint service.” This refers to a situation where the employee is in the service of two employers in relation to the same act. Kukor fell while trimming a tree, which fits squarely within the activities of Northeast. There is no question that he was in its service alone at the time of the injury. Issue 2: Extent of disability Kukor argues that the Commission erred in finding he had suffered only a 75% loss of earning capacity. He contends that the evidence can only support a finding of total disability. Kukor suffered back and wrist injuries in his fall. He reached maximum medical improvement on the wrist injuries about three months later, with a 15% impairment rating to his right wrist and an 18% impairment rating to his left wrist. Kukor was also diagnosed with a “very subtle compression fracture of the lower thoracic spine,” which left him with a 5% physical impairment rating to the body as a whole, as well as restrictions to lifting thirty pounds and against repetitive bending, twisting, or stooping. Kukor could not return to his pre-injury employment as a tree trimmer and testified that he had not been able to find work with his limitations. Section 71-3-3(i) defines disability as the incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings. While Kukor was unable to return to his previous work trimming trees, he was offered a light-duty position with Jay’s, primarily driving a dump truck. Kukor testified that the driving hurt his back; however, Albritton testified that Kukor had quit without speaking to him and that he would have tried to adapt the position to further accommodate Kukor’s restrictions. There was significant evidence Kukor was otherwise employable within his restrictions. The Commission based its conclusions on Kukor’s medical records and the testimony of Pete Mills, a vocational expert. Mills testified that based on his age, work history, and impairments, Kukor was employable and was capable of earning up to approximately eight dollars per hour. Mills identified a variety of positions Kukor could hold. Mills also expressed concern that Kukor may have failed in his job search because he had attached copies of his medical records to the applications. The Commission’s finding on the extent of Kukor’s loss of wage-earning capacity is supported by substantial evidence. |
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