CHAPTER III.
EMPLOYEE-EMPLOYER RELATIONSHIP |
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§ 3.01 Generally
- January 1998. (Ph) Claimant was injured when the leg of the foster child she was helping into the bathroom gave
out causing both claimant and the child to fall. Respondent contends claimant was not an employee and cites for
support Mitzner v. State Dept. of SRS, 257 Kan. 258, 891 P.2d 435 (1995), which held foster parents were not
employees of the State of Kansas. The Appeals Board does not consider this case controlling here as the foster
parenting system has since changed and is a privatized system operated by such private organizations as the Kansas
Children's Service League. See K.S.A. 39-708c et seq. The Appeals Board further finds the evidence in the case
includes a written agreement between the claimant and the Kansas Children's Service League and that this
agreement establishes the right to control indicative of an employment relationship. The Appeals Board therefore
finds claimant to be an employee of respondent at the time of the accident. Whalen v. Kansas Children's Service
League and Oak River Insurance Company, Docket No. 227,911.
- ----- Under Kansas law, employment is established through the right to control. See Falls v. Scott, 249 Kan. 54, 815
P.2d 1104 (1991). The right to control is established by agreement, ie an employment contract. Id.
- July 1997. (Ph) The primary test utilized in Kansas to determine whether an employee / employer relationship
exists is whether the employer has the right of control and supervision of the employee. This involves the right to
direct the manner in which the work is performed as well as the result which is to be accomplished. It is not the
actual exercise of control, but the right to control which is determinative. See McCubbin v. Walker, 256 Kan. 276,
886 P.2d 790 (1994). McClellan v. Hutchinson Publishing Company, Victor Ruelas and Deborah Ruelas and
Cincinnati Insurance Company, Docket No. 213,940.
- ----- Additional factors used to determine whether an employment relationship exists include: whether payment was
by the piece of work or by the hour; the furnishing of tools and equipment; the right to employ assistants and
supervise their activities; and whether the work was part of the regular business of the employer. Id.
3.02 The Contract of Employment
3.03 Generally
3.04 Illegal Employment
See Also § 8.22
- December 1997. (Award) Claimant, an illegal alien, was injured while on the job. Respondent argued claimant's
employment contract was void and/or illegal as claimant fraudulently represented to the respondent that he was a
legal alien with proper documents permitting him to work in the United States. The Appeals Board, however,
concludes that for the employment contract to be void for the purposes of workers compensation coverage, the
alleged fraud would have to have a causal relationship to claimant's injury. See White v. Thompson, 181 Kan. 485,
312 P.2d 612 (1957); 3 Larson's Workers' Compensation Law §47.51 (1997). The Appeals Board further finds the
alleged fraud or misrepresentation did not have a causal relationship to claimant's injuries; therefore, claimant, an
illegal alien, is covered under the Workers Compensation Act. Cordova v. Spice Merchant & Co. and State Farm
Fire & Casualty Company, Docket No. 192,123.
- August 1997. (Award) Where the record is clear and uncontradicted that if claimant would have had a legal status,
rather than being deemed an illegal alien, the respondent would have returned him to work at a comparable wage,
the Appeals Board finds that a comparable wage should be imputed to the claimant as provided by K.S.A. 44-510e.
The policy considerations outlined in Foulk apply to claimant's case. Claimant is therefore limited to the
percentage of his functional impairment. Claimant's illegal alien status should not be a benefit to him and burden to
his employer. Ortiz v. Nies Construction, Inc and CNA Insurance Company, Docket No. 199,812.
3.04a Employment Conditioned on Passing a Pre-Employment Screening Test
- February 1998. (Award) After completing the interview process, claimant was offered a job by respondent as a
part-time social worker conditioned on claimant satisfactorily completing an employment physical examination.
The exam was administered on respondent's premises and was conducted by physical therapists, all employees of
respondent. Claimant testified she injured her back while completing the strength test section of the physical exam.
The Appeals Board finds, under the circumstances of this case and for purposes of coverage under the Workers
Compensation Act, that claimant was an employee of the respondent at the time she injured her back during the
employment physical examination. This conclusion is supported by the fact respondent required claimant to
undergo the physical examination and to satisfactorily pass this examination as a prerequisite for employment. The
exam took place on the respondent' premises and was conducted by employees for respondent. Additionally, the
exam benefitted respondent's interests by assuring its employees were physically qualified to perform their required
work. Hazen v. Riverside Hospital and Phico Insurance Company, Docket No. 196,529.
3.04b Falsification of Pre-Employment Application
See Also, § 8.22
- See also Hamilton v. Arby's Roast Beef Restaurant and National Union Fire Insurance Company, Docket No.
241,239 (July 1999), wherein respondent produced additional evidence to support its claim of misrepresentation and
also argued the Court of Appeals in Ramirez v. Excel Corporation, Docket No. 80,670, Kan. App., rev. denied
Kan. (1999), suggests that a misrepresentation made at the time of hiring will bar a workers compensation claim
by an employee if there is a causal connection between the misrepresentation and the injury. However, the Board
continued to hold that a misrepresentation made at the time of hiring does not bar a workers compensation claim
even if the injury is causally related to that misrepresentation. The claimant is entitled to benefits if he suffered
accidental injury arising out of and in the course of employment and otherwise meets the criteria of the Act. The Act
does not make misrepresentation on an application for employment a defense. Further, in the Board's view,
Ramirez does not hold otherwise. Id.
- June 1998. (Award) Claimant suffered a work-related injury but was later terminated when respondent discovered
claimant had lied on his pre-employment application. Claimant did not disclose a prior employer and work-related
injury. However, the Board concludes the fact claimant was terminated for lying on his employment application
does not preclude work disability. The Board construes the Foulk and Copeland decisions as applicable to post-injury conduct, not pre-injury conduct. The underlying rationale of those decisions is to avoid the potential of
manipulation inherent in claimant's post-injury conduct. The potential for manipulation of workers compensation
benefits does not exist in termination for pre-injury conduct and for that reason the Board has not applied the Foulk
and Copeland rationale to claimant's pre-injury conduct. Additionally, although termination for misconduct may be
the event that places claimant into the open labor market, it is the restriction of the compensable work-related injury
that then prevents claimant from performing the tasks he/she previously performed and may prevent claimant from
obtaining work at a similar wage. The injury is in a practical sense disabling the claimant's efforts to work and is a
work disability. Claimant is entitled to an 81% work disability. Figueroa v. Excel Corporation, Docket No.
211,777 [Affirmed in part and reversed in part by unpublished Court of Appeals opinion, Docket Nos. 81,420 &
81,433, February 4, 2000].
- January 1998. (Award) The Appeals Board awards a work disability in this instance despite claimant's
falsification of his pre-employment application, with regard to a prior workers compensation injury in California,
and concludes that the employment contract entered into between claimant and respondent did not change the
employer/employee relationship with regard to claimant's entitlement to workers compensation benefits. For the
employment contract to be void, sufficient for the purpose of denying workers compensation coverage, claimant's
fraud would have had to have a causal relationship to claimant's injury. See White v. Thompson, 181 Kan. 485, 312
P.2d 612 (1957); 3 Larson's Workers' Compensation Law § 47.51 (1997); Cordova v. Spice Merchant & Co.,
Docket No. 192,123 (December 1997). Although claimant falsified his pre-employment application by failing to list
prior workers compensation injuries and claims, the Appeals Board finds that neither Foulk nor Copeland apply to
this scenario. In both Foulk and Copeland the improper actions of the claimant occurred after claimant suffered an
injury arising out of and in the course of his or her employment with respondent. In the case at hand, the improper
actions of claimant occurred at the time claimant applied for work with respondent. This was prior to the date
claimant suffered his accidental injury. In addition, Foulk does not apply to this circumstance as claimant has not
refused post-injury employment but instead is out of work as a result of his pre-injury actions. Copeland does not
apply in this instance as claimant made a good faith effort to find work after his injury. Work disability is awarded.
Ramirez v. Excel Corporation, Docket No. 198,826 [Reversed & Remanded by Court of Appeals opinion, Docket
No. 80,670].
- ----- But See, Dissent, Based upon the Appeals Board's prior holdings in Ortiz v. Nies Construction, Inc., Docket
No. 199,812 (August 1997) and Cano v. Andy Mackey Painting, Docket No. 202,489 (March 1997), the dissenting
Board Member finds it would be inappropriate for claimant to be awarded a work disability based upon his loss of
wages when respondent put forth the effort to return claimant to work at an accommodated position and claimant's
loss of employment resulted purely from his own actions, ie., the falsification of his employment application at the
time of hire. Id.
- See also, August 1999. (Remand) On remand the Board followed the Court of Appeals' opinion in Docket No.
80,670 and found that claimant would not be entitled to an award of work disability as a result of his loss of
employment due to his own actions, ie. the falsification of his employment application. As a result, claimant's
permanent partial disability award is limited to his functional impairment. Ramirez v. Excel Corp., Docket No.
198,826.
- May 1997. (Award) Respondent argued claimant knowingly misrepresented the fact that he did not have a
preexisting back condition or prior back injury when it hired claimant. Conversely, the Fund cites the case of
Collins v. Cherry Manor Convalescent Center, 7 Kan. App.2d 270, 640 P.2d 875 (1982) in support of its argument
that claimant's limited education and ability to speak English accounted for the confusion. The Appeals Board,
however, finds the facts in this case distinguishable from those in Collins. The evidence contained in the record
supports the conclusion that claimant knowingly misrepresented to respondent that he did not have a preexisting low
back injury. The Appeals Board is mindful of the fact claimant had a limited ability to understand English and
further was limited to a sixth grade education. Nevertheless, other than the information relating to his preexisting
back injury, claimant was able to provide essentially all the information that was required on his employment
application and also on his pre-employment history and physical form. Furthermore, claimant was able to furnish
respondent with a list of his previous employers with the exception of Hyplains, who coincidently was his employer
at the time he injured his back. All of which goes to establish knowing misrepresentation by claimant. Thus, the
Board finds respondent has met its burden of proving knowledge of handicap by virtue of claimant's
misrepresentation of his pre-existing condition. Martinez v. Monfort, Inc. and City Insurance Company and Kansas
Workers Compensation Fund, Docket No. 145,421.
- June 1994. (Award) The omission by claimant to "explain" his affirmative answers on his medical questionnaire,
where it clearly stated to explain all answers, does not establish a knowing misrepresentation by the claimant where
the Board concluded that claimant's omissions were most likely the result of insufficient information by the claimant
followed shortly thereafter by an incomplete inquiry by the respondent. Respondent should have been alerted by
claimant's responses to the medical questionnaire and inquired further. Shore v. City of Winfield and Self-Insured
and Kansas Workers Compensation Fund, Docket No. 165,162.
- ----- Whether an employee has made a knowing misrepresentation of his condition requires a determination of
whether the employee intended to misrepresent and conceal his condition at the time of the alleged
misrepresentation. The key is the mental state of the claimant when he/she answered the employer's questions.
Collins v. Cherry Manor Convalescent Center, 7 Kan. App. 2d 107, 626 P.2d 1223 (1981). Id.
- ----- It is significant that the concealment must be knowing. An employee who misrepresents the condition of his
health to his employer solely by reason of accident or mistake without any awareness that he has done so cannot be
said to have knowingly made the misrepresentation contemplated by K.S.A. 44-567(c). Krauzer v. Farmland
Industries, Inc, 6 Kan. App.2d 107, 626 P.2d 1223 (1981). Id.
3.05 Employee Distinguished From Independent Contractor
3.06 Generally
- November 1999. (Ph) Claimant hauling load for Branson with tractor owned by Sheldon but under exclusive lease
to Branson found to be employee of Branson even though Branson had required Sheldon to purchase workers
compensation coverage for claimant. Other factors which supported this conclusion were fact that Branson paid
claimant, Branson withheld taxes, and the fact that claimant was otherwise employed by Branson to drive Branson-owned tractors when other drivers were not available. Haggard v. Branson Truck Line, Inc. and Dennis Sheldon
D/B/A Sheldon Trucking, Docket No. 244,540.
- September 1999. (Ph) Claimant leased her tractor trailer and then in turn leased it to respondent. Respondent
argued claimant was an independent contractor and therefore compensation was precluded under K.S.A. 1998 Supp.
44-503b(h)(1), which excludes self-employed contractors from the definition of a worker. The ALJ found this
statute inapplicable because claimant was not the "owner" of the truck; the Appeals Board agrees. The Kansas
Supreme Court has considered instances where a claimant was a truck driver or owner-operator of a truck,
contracting with companies whose business was to deliver goods throughout the Untied States. The Court has held
the employer's right to control is an important element in determining what makes an employee or an independent
contractor. The Board finds, in the case at hand, that the amount of control exercised by respondent and the level of
supervision by respondent over the work of claimant satisfied the right of control test. Kern v. Ameritruck
Refrigerated Transport, Inc. and Clarendon National Insurance Company, Docket No. 244,140.
- July 1999. (Award) Owner-operator of tractor trailer found to be employee of respondent where the Board
determined the amount of control exercised by respondent and the level of supervision by respondent over the work
of the claimant satisfied the right of control test. See also Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P.2d
1274 (1973); and Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 198, 558 P.2d 146 (1976). Marley v. M.
Bruenger & Company, Inc. and Legion Insurance Company, Docket No. 213,003 [Reversed by Court of Appeals
opinion, Docket No. 83,699, May 5, 2000].
- ----- Application of 1996 amendment to K.S.A. 44-503 discussed. Id.
- February 1999. (Ph) The Appeals Board finds claimant to be an employee of respondent rather than an
independent contractor. Based upon the language of K.S.A. 1997 Supp. 44-503(h)(2)(C), claimant cannot be the
owner-operator of the truck he drives for respondent, since claimant has only a questionable 1 percent interest in that
vehicle with respondent having a 99 percent interest. Further, the Board finds the contract respondent had claimant
sign stating claimant was the owner-operator of the vehicle was intended to allow respondent to avoid the
responsibility of providing workers compensation insurance to claimant. Stansbury v. John Walker and/or J & H
Trucking, Inc, Docket No. 234,370.
- September 1998. (Ph) Claimant was to be paid $4700 to build cabinets for a home being constructed. Claimant
was told that time was important and his work should be done by a specified time. Claimant furnished his own tools
and performed the work in his own home. Although the evidence showed some control exhibited by respondent, the
Board finds claimant was an independent contractor and not an employee. Baalmann v. Zeller Construction
Company, Inc and Kansas Building Industry Workers Compensation Fund, Docket No. 225,575.
- August 1998. (Award) A worker who did not operate an independent business but maintained an ongoing
relationship with an employer; who performed work that was an integral part of the employer's business; whose
work was directed and controlled by the employer; who did not furnish the larger equipment and necessary
components required to perform the work; and who was paid on an hourly basis rather than by the project, was
found to be an employee rather than an independent contractor. Beasley v. Terry Faelber d.b.a. AGD Security
Company and Workers Compensation Fund, Docket No. 206,321. [Reversed by Court of Appeals in unpublished
decision, Docket No. 81,985].
- August 1998. (Ph) Claimant was injured in an automobile accident while driving a taxicab for respondent. The
Appeals Board found claimant was an employee of respondent and not an independent contractor. That conclusion
was reached for the following reasons: claimant's driving respondent's taxicab was an intricate and necessary part of
respondent's business; respondent had the right to control the drivers by it's authority to hire and terminate the
relationship for violation for certain rules; and although respondent's income was not directly tied to claimant's
earnings, claimant nevertheless paid the amount charged by respondent to lease the taxicab from such earnings.
Additionally, these facts are consistent with the holding in Read v. Warkentin Commissioner, 185 Kan. 286, 341
P.2d 980 (1959). Columbus v. American Cab, Inc and Travelers Insurance Company, Docket No. 228,937.
- July 1998. (Ph) Generally, an independent contractor is someone who contracts to perform a piece of work
according to his own methods and without being subject to control of an employer, except as to final result. A
master, however, is someone who employs another to perform services in his affairs and who controls or has the
right to control the conduct of the other in performing those services. It is the right to control, not the actual exercise
of that right that is important. See Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 689 P.2d
787 (1984). Russell v. H & K Delivery; Merchants Home Delivery; and Levitz Furniture Corp and Crawford &
Company Travelers Property Casualty, Docket No. 192,809.
- ----- In addition to the right to control and the right to discharge the worker, other commonly recognized tests of the
independent contractor relationship are (1) the existence of a contract to perform a certain piece or kind of work at a
fixed price, (2) the independent nature of the worker's business or distinct calling, (3) the employment of assistants
with the right to supervise their activities, (4) the worker's obligation to furnish necessary tools, supplies, and
materials, (5) the worker's right to control the progress of the work, (6) the length of time for which the worker is
employed, (7) whether the worker is paid by time or by job, and (8) whether the work is part of the regular business
of the employer. See McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (1994). Id.
- ----- The relationship of contracting parties depends on all the facts and the label that they choose to employ is only
one of those facts. The terminology used by the parties is not binding when determining whether an individual is an
employee or an independent contractor. See Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P.2d 1274 (1973).
Id.
- ----- Despite the fact claimant signed a contract with respondent labeling him as an independent contractor,
claimant is found to be an employee of respondent where: claimant did not work for anyone other than respondent;
respondent controlled the time claimant worked, the number of deliveries he made, what he wore, the use of his
truck and to some degree the time he would finish each day. Id.
- See Also, Mike Newberry vs. Laforge & Budd Construction Company and Indemnity Insurance Company of North
America, Docket No. 250,386 (April 2000).
- See Also, Olden v. Treescape & Irrigation, Inc and Travelers Insurance Company, Docket No. 233,582 (July
1998).
- February 1998. (Award) For a claimant to be eligible to receive benefits under the Workers Compensation Act, the
claimant must be an employee of respondent. An employee is defined in K.S.A. 44-508 as any person who has
entered into the employment or works under any contract of services or apprenticeship with an employer. Hazen v.
Riverside Hospital and Phico Insurance Company, Docket No. 196,529.
- May 1997. (Ph) Claimant fell injuring his right wrist when the scaffolding on which he was standing collapsed.
The sole issue for the Appeals Board was whether claimant was an employee of respondent and therefore covered
under the Workers Compensation Act or whether he was an independent contractor. Although the Appeals Board
found substantial evidence which could support finding claimant to be either an employee or an independent
contractor, the evidence did show respondent, at a minimum, defined the job to be done and could reject the finished
product. Furthermore, although the evidence that claimant was paid by the square rather than by the hour or by
salary tends to show he was an independent contractor rather than an employee, both claimant and respondent
testified that paying by the square was customary in the roofing industry regardless of the employment relationship.
Similarly, although claimant's providing his own equipment tends to point to his being an independent contractor,
the evidence showed it was also common for roofers to have their own tools. Therefore, the Appeals Board found
the greater weight of evidence to be in support of claimant's being an employee of respondent rather than an
independent contractor. Golden v. Tony Strunk Construction Co. and Wesley Haring Roofing and Kansas Workers
Compensation Fund, Docket No. 214,249.
- ----- Independent contractor defined as "one who, in . . . [his/her] . . . exercise of an independent employment,
contracts to do a piece of work according to his/her own methods and who is subject to the employer's control only
as to the end product or final result of the work." See Danes v. St. David's Episcopal Church, 242 Kan. 822, 752
P.2d 653 (1988). Id.
- November 1994. (Award) Claimant entered into a rental contract with respondent to rent certain space from
respondent in respondent's building for the purpose of rebuilding pallets--which would be sold to respondent.
Claimant filled out no employment application. Claimant was not supervised by respondent nor given designated
working hours. On her first day at work, claimant fell down a flight of stairs injuring her head and neck. Claimant
requested her medical bills be paid by respondent under an employee-employer relationship. Respondent refuses to
pay stating claimant is an independent contractor. Although respondent did not exercise any control over claimant
by directing the manner in which claimant performed the work and respondent had never terminated anyone from
the position, respondent did provide some of the tools and equipment necessary for claimant to perform the work.
However, the Board does not find, based on the totality of the evidence, that the furnishing of some equipment is
sufficient to find an employer - employee relationship. Claimant is found to be an independent contractor. Benefits
denied. Johnson v. Richter Pallet Company and Unknown and Kansas Workers Compensation Fund, Docket No.
183,158.
- ----- The Board cites the case of Smith v Brown, 152 Kan. 758, 107 P.2d 718 (1940), for the proposition that even
if a claimant is paid by the hour, an independent contractor relationship may nevertheless be found by looking at all
the circumstances involved. Id.
3.07 Payment of Wage
3.08 Right to Control
- June 1998. (Award) Owner-operator of a truck, paid a percentage of the haul revenue, may still be an employee if
the lease arrangement with respondent gives respondent the exclusive right to direct and control the method and
manner of doing the work. See Scammahorn v. Gibraltor Savings & Loan Assn,, 197 Kan. 410, 416 P.2d 771
(1966). Darnell v. Ronald Herpich Trucking and Uninsured and Kansas Workers Compensation Fund, Docket No.
175,232. [Affirmed by unpublished, Court of Appeals decision, Docket No. 81,534].
- July 1997. (Ph) Claimant, who delivered newspapers for respondent, could not meet his burden of proving an
employee/ employer relationship, where respondent's control over claimant's activities was minimal at best.
Claimant was therefore found to be an independent contractor and is not covered under the Workers Compensation
Act. McClellan v. Hutchinson Publishing Company, Victor Ruelas and Deborah Ruelas and Cincinnati Insurance
Company, Docket No. 213,940.
- See Also, Moore v. Prairie Land Builders and Employers Insurance of Wausau, Docket No. 228,469 (August
1998).
- May 1997. (Ph) The primary test used to determine whether an employment relationship exists so as to bring an
accident within the scope of the Workers Compensation Act is the right of control and supervision over the work
test. See Danes v. St. David's Episcopal Church, 242 Kan. 822, 752 P.2d 653 (1988). See Discussion in, Golden v.
Tony Strunk Construction Co. and Wesley Haring Roofing and Kansas Workers Compensation Fund, Docket No.
214,249.
- February 1997. (Ph) Claimant found to be an independent contractor where the record indicated respondent did
not have the right to exercise control over claimant needed to create an employer-employee relationship. The fact
that respondent referred to claimant as an independent contractor on all paperwork; claimant was responsible for the
maintenance, repair and costs of the operation of the tractor he was leasing from respondent; claimant was paid by
the load and could refuse loads; claimant was free to determine the route he took to deliver respondent's loads; and
claimant and his fiancee operated the truck as a partnership as reflected in their tax documents, all indicate claimant
was an independent contractor. Saeger v. Truck Transport, Inc. and National Union Fire Insurance, Docket No.
214,731.
- November 1996. (Ph) The Board affirms the ALJ's finding that the alleged partnership is a sham and claimant is an
employee of respondent, where respondent retained the ability to fire claimant and controlled the work claimant
performed. Brumbaugh v. Mike's Fire Extinguisher and Aetna Casualty & Surety Company, Docket No. 205,813.
- April 1994. (Award) Claimant injured in an explosion considered an independent contractor where evidence
showed that he worked out of his own garage, was paid on a per piece basis, paid his own quarterly taxes, and
selected his own hours. Morton v. Bartel Sales and Service, Docket No. 165,856.
- January 1994. (Award) Claimant considered an employee in performing dry wall work where, even though he was
paid on a per piece basis, the evidence otherwise established that respondent had the right to and did exercise control
over the manner in which claimant performed his work. Flores, Jr. v. Cameron Drywall, Docket No. 152,948.
- January 1994. (Award) Claimant, a brick layer, found to be an employee where evidence established that he was
paid by the hour, respondent set hours, respondent provided much of the equipment and respondent told him where
and when to lay the brick. White v. Strickland Const., Docket No. 183,532.
3.09 Tools and Materials, Furnishing
3.10 Statutory Employee
- July 1998. (Award) K.S.A. 44-503 extends the application of the Act to certain individuals and entities who are not
the immediate employers of an injured worker. See Bright v. Cargill, 251 Kan. 387, 837 P.2d 348 (1992). The
purpose of that statute is to prevent employers from evading liability under the Act by contracting with others to do
the work that they have undertaken as a part of their trade or business. Workman v. City of Clyde and Untied
Industrial and Employers Mutual and Workers Compensation Fund, Docket No. 184,290. [Affirmed by unpublished
Court of Appeals opinion, Docket No. 81,721, November 24, 1999.]
- ----- The test under K.S.A. 44-503 is whether the work that gives rise to an injury was part of the principal's trade
or business. That test has two prongs: (1) Is the work necessarily inherent and an integral part of the principal's
trade or business; and, (2) Is the work ordinarily performed by the principal's employees. The key to the first prong
is whether similar employers ordinarily perform the work in question. Where neither of these two factors is met, the
Appeals Board finds the claimant was not a statutory employee and his request for benefits should be denied. Id.
- July 1997. (Ph) Where claimant, a newspaper delivery person, is found to be a self-employed, independent
contractor, the Appeals Board holds claimant does not fit the definition of a statutory employee. See Allen v. Mills,
11 Kan. App.2d 415, 724 P.2d 143 (1986). McClellan v. Hutchinson Publishing Company, Victor Ruelas and
Deborah Ruelas and Cincinnati Insurance Company, Docket No. 213,940.
- November 1996. (Award) Where claimant was found to be an independent contractor rather than an employee of
respondent, it was determined that claimant cannot be a statutory employee under K.S.A. 44-503 because claimant
cannot be an employee of himself. See Allen v. Mills, 11 Kan. App.2d 415, 724 P.2d 143 (1986). Neuburger v.
Amre, Inc and National Union Fire Insurance Company and Workers Compensation Fund, Docket No. 176,895
[Affirmed by unpublished Court of Appeals opinion, Docket No. 78,123].
3.11 Dual Employment
3.12 Borrowed Employee
3.13 Generally
3.14 Control Test
3.15 Joint Liability of Lending & Borrowing Employer
3.16 Subcontracting
3.17 Generally
- September 1999. (Ph) Respondent determined to be subcontractor under K.S.A. 44-503, and claimant determined
to be employee of respondent based on the following: 1) all the materials and tools were supplied by respondent, 2)
respondent assigned the jobs, 3) claimant worked with a crew of employees hired by respondent, and 4) respondent
determined when, how long and where claimant worked each day. Juarez v. Rock Construction Company and
Premier Realty and Continental Western Insurance Co., Docket No. 242,177.
- January 1998. (Ph) Claimant, a self-employed subcontractor of respondent, does not qualify under K.S.A. 1995
Supp. 44-508(b) as a worker, employee or workman and the Kansas Workers Compensation Act does not apply to
this accident. Adam v. Dave Cook d.b.a. Cook Construction and Clifton Homes, Inc. and Workers Compensation
Fund, Docket No. 216,254.
- ----- The Kansas Legislature's amending K.S.A. 44-505(a)(2), effective July 1, 1997, evidenced a legislative intent
to bring self-employed subcontractors within the framework of the Kansas Workers Compensation Act. Id.
3.18 Liability of Principal
- December 1997. (Award) Under K.S.A. 44-503, an injured employee of a subcontractor may recover workers
compensation benefits from a principal and the principal may then seek indemnity from the subcontractor. Owings
v. Walter A. Young Construction, Inc. and Steve Beyrle, d/b/a Beyrle Construction and Cigna and Travelers
Insurance Company, Docket No. 192,579.
- June 1997. (Order) The provisions of K.S.A. 44-503, as amended in 1994, establish liability against the principal
when the subcontractor fails to have workers compensation insurance coverage. The principal contractor is a
guarantor under the compensation law. Claimants can no longer elect whether to proceed against the principal or the
subcontractor. Church v. White Star Commercial and McPherson Contractors, Inc. and Kansas Building Industry
Workers Compensation Fund, Docket No. 204,042.
3.19 Subcontractor
3.20 Multiple Employment
- February 1999. (Award) Although claimant argued she was employed part-time by two separate employers and
wanted her average weekly wage to reflect her wages from both employments, the ALJ found claimant's status as an
on-call employee for one of the employers to be too irregular and sporadic to constitute part-time employment under
K.S.A. 44-511(a)(4). The Board further found that the situation was not a multiple employment situation as
contemplated by K.S.A. 44-503a. Therefore, the denial of claimant's request to combine the wages from both
employers to formulate her average weekly wage is affirmed. Leighty v. Aging Projects, Inc and Wausau
Underwriters Insurance Company, Docket No. 216,983.
- August 1998. (Order) Under certain circumstances, the Worker Compensation Act apportions liability among
multiple employers. K.S.A. 44-503a. The multiple employment statute does not require an employer to pay more
than its proportionate share of benefits due. Additionally, the statute does not create a right in an employer, who
voluntarily pays more than its proportionate share, to proceed in a workers compensation proceeding against another
alleged employer to obtain reimbursement or contribution. Should an overpayment in a multiple employment
situation create a right of subrogation or contribution, the proper avenue to enforce that right is a civil action.
Therefore, the ALJ properly dismissed this proceeding. Bobbett v. Topeka Public Schools Unified School District
501 and American Home Life Insurance Company and Cincinnati Insurance Company, Docket No. 200,888.
- March 1998. (Ph) Claimant injured her knee while climbing stairs at work. At the time of injury, claimant worked
for two separate employers. The Board awarded benefits for claimant against respondent finding that although
claimant performed similar housekeeping duties for both employers, claimant really only climbed stairs while
working for respondent. Claimant left work for respondent after having a restriction against her climbing stairs; this
is the date of accident determined by the Board and not the date claimant stopped working for the second employer
as respondent argues. Nelson v. Maxus Properties and Truck Insurance Exchange, Docket No. 227,485.
- November 1996. (Award) The law in Kansas sets out that both employers of claimant shall be "joint employers"
and as the law in Kansas does not prohibit the employee from proceeding after one or both co-employers, the
Appeals board finds the request by one employer to dismiss this matter for failure to prove an employer-employee
relationship between it and claimant to be inappropriate and the request is denied. Claimant is awarded benefits.
Any subsequent dispute between the two employers regarding what, if any, potential reimbursement will be due and
owing is a matter to be decided in a court of appropriate jurisdiction. The Board is obligated to determine what
benefits may or may not be due to an injured employee. The issues as to the contractual relationships between the
two respondents and their various insurance carriers are not matters over which the Board retains jurisdiction.
Schuler, Jr v. Schock Transfer Company, Inc and Schuler, Jr v. Crooks Driver Leasing and Aetna Casualty &
Surety, Docket Nos. 204,130 & 204,131 [Affirmed by unpublished Court of Appeals opinion, Docket No. 78,067].