12-0016. IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS' COMPENSATION LIABILITY AND ASSESSMENT OF A CIVIL PENALTY AGAINST v. Bulldog Construction and Landscaping and Andrew Christensen Employer Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0016. IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS' COMPENSATION LIABILITY AND ASSESSMENT OF A CIVIL PENALTY AGAINST v. Bulldog Construction and Landscaping and Andrew Christensen Employer Defendants Alaska Workers' Compensation Appeals Commission IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS' COMPENSATION LIABILITY, AND ASSESSMENT OF A CIVIL PENALTY AGAINST, v. Bulldog Construction and Landscaping, and Andrew Christensen, Employer, Defendants.AWCB Decision No. 12-0016Filed with AWCB Anchorage, Alaskaon January 20, 2012AWCB Case No. 700003066FINAL DECISION AND ORDERThe petition for a finding of failure to insure for workers' compensation liability, and for civil penalty assessment was heard on December 7, 2011, in Anchorage, Alaska. No one appeared, testified, or represented Bulldog Construction and Landscaping or Andrew Christensen (Employer; Bulldog; or Mr. Christensen). Christine Christensen, Special Investigations Unit of the Alaska Department of Labor and Workforce Development, appeared, represented the State of Alaska (SIU or Division), and testified. Prior to going on the record, the designated chair called two phone numbers found in the record for Mr. Christensen, left a message on one phone number, and spoke to William Johnson who advised Mr. Christensen was not available and Mr. Johnson did not know how to reach him. The panel decided orally as a preliminary matter to proceed without Employer's participation. This decision examines the decision to go forward with the hearing, memorializes it and decides the merits of the SIU's petition. The record closed at the hearing's conclusion on December 7, 2011. ISSUES The SIU contends Employer was properly noticed with the hearing's date, time and place. It contends since Employer failed to appear without any justification, the hearing should go forward. As Employer did not appear or participate telephonically, the reason it failed to appear is unknown. Similarly, its position on whether the hearing should proceed in its absence is unknown. 1) Was the decision to proceed in Employer's absence proper? The SIU contends Employer operated a business using employee labor when not insured for workers' compensation liability and failed to provide proof of workers' compensation liability coverage, specifically for the period May 25, 2008 through August 18, 2010, August 19, 2011 through September 13, 2011, and from December 2, 2011 through December 7, 2011. The division asserts Employer should be assessed a penalty for this period. 1) Was Employer between May 25, 2008 through August 18, 2010, August 19, 2011 through September 13, 2011, and from December 2, 2011 through December 7, 2011, subject to and in violation of AS 23.30.085(a) and (b) requirements to file evidence of compliance with workers' compensation insurance law? 2) Was Employer between May 25, 2008 through August 18, 2010, August 19, 2011 through September 13, 2011, and from December 2, 2011 through December 7, 2011, subject to and in violation of AS 23.30.075 and subject to the requirements and penalties in AS 23.30.080? 3) Shall Employer be assessed a civil penalty for its failure to insure between May 25, 2008 through August 18, 2010, August 19, 2011 through September 13, 2011, and from December 2, 2011 through December 7, 2011, and if so, in what amount? The SIU lastly contends Employer continues to perform work using employee labor after its insurance policy was cancelled effective December 2, 2011. Accordingly, it seeks a stop order. As Employer failed to participate in the hearing its position on the stop order request is not known. Similarly, it is not known whether Employer is using employee labor or whether it has obtained insurance since the December 7, 2011 hearing. 4) Shall this decision include a stop order? FINDINGS OF FACT Evaluation of the hearing record as a whole establishes the following facts and factual conclusions by a preponderance of the evidence: 1) Employer had employees working for it from May 25, 2008 through August 18, 2010, August 19, 2011 through September 13, 2011, and from December 2, 2011 through December 7, 2011 (Notice of Evidence to be Introduced at Hearing, Exhibit 10, November 9, 2011; Christensen). 2) On September 23, 2009, the division sent Employer by certified mail a petition and discovery request. Employer did not respond and the mail was returned as "unclaimed" (Failure to Insure Investigation Summary, December 7, 2009). 3) On December 3, 2009, the division again mailed its petition and a discovery request to Employer by regular and certified mail. The certified mail was returned as unclaimed (id.). 4) On February 28, 2010, 8 AAC 45.176 setting civil penalty guidelines in uninsured employer cases became effective (experience, observations). 5) Six hundred forty-two (642) days of non-coverage in this case occurred prior to the new regulations' effective date (observations; record). 6) On September 24, 2010, the division again mailed its petition and a discovery request to Employer by regular and certified mail. The certified mail was returned as unclaimed (id.). 7) On December 3, 2010, Judicial Services personally served Employer with the division's petition and a discovery demand (Christensen). 8) Employer did not answer the petition or respond to any SIU discovery request (id.). 9) At a June 2, 2011 prehearing conference, Employer stated its business was no longer operating, but admitted its business had been operating at the Driftwood Bay subdivision in Eagle River as witnessed by the investigators; Mr. Christensen made appointments to meet with an investigator and failed to appear (Christensen; Failure to Insure Investigation Summary, December 7, 2011). 10) On August 9, 2011, Employer obtained a current business license (id.). 11) On August 10, 2011, an investigator contacted several workers at the Driftwood Bay subdivision in Eagle River who admitted they (Nicolello, Hubbell, Pace and "Mike") were Employer's employees, were not independent contractors, and had been working there "a couple weeks" (id.; Affidavit of Kyle Thompson, November 9, 2011). 12) On September 1, 2011, the parties appeared at a prehearing conference at which the parties discussed and agreed upon a December 7, 2011 hearing date (Prehearing Conference Summary, September 1, 2011). 13) On September 1, 2011, the board's designee recorded:
MR. CHRISTENSEN ('ER') did not show/call in for the Prehearing ('PH'). The Board designee contacted him and he participated telephonically. He stated he did not receive notice of the PH and does not have a permanent address due to personal difficulties, but the Palmer address is still the best address to send documents to.
MS. CHRISTENSEN, the Investigator ('IR') stated she still needed records and information from ER, and since he hasn't responded to previous discovery requests, she would like to set the matter on for a Hearing. ER stated he does not have access to any previous business records for Bulldog Construction because they were in the marital home, which he is not allowed to enter. However, he agreed to a Hearing date of 12/7/11. The parties are currently on a trailing docket and should confirm the time of the hearing on the day prior to the hearing.
Id. 14) Employee had more than 10 days notice both through personal notice given to him at the prehearing conference, and through the written notice in the September 1, 2011 prehearing conference summary (id.). 15) Though Mr. Christensen expressed concerns with personal issues and access to his documents, he agreed to a hearing date, the record contains no evidence he asked the court for relief so he could obtain access to his records, and he did not seek a continuance from the board based on his inability to prepare for hearing (id.; observations; record). 16) On November 3, 2011, the division served Bulldog with a Hearing Notice by regular mail to its address of record (Hearing Notice, November 3, 2011; United States Post Office records). 17) On November 3, 2011, the division served Andrew Christensen with a Hearing Notice by certified mail to his address of record with a return receipt requested (id.). 18) On December 2, 2011, Employer's last workers' compensation policy was cancelled because Employer failed to respond to its insurer's request for information (Christensen). 19) At hearing on December 7, 2011, prior to going on the record, the designated chair called two phone numbers found in the record for Mr. Christensen, left a message on one voice mail device, and at the second number spoke to William Johnson who advised Mr. Christensen was "not available" and Mr. Johnson did not know how to reach him (observations; record). 20) On December 7, 2011, no one appeared, testified, or represented Bulldog Construction and Landscaping or Mr. Christensen (id.) 21) As of December 7, 2011, there was no indication in the agency file the Hearing Notice sent to Bulldog or Mr. Christensen had been returned as undeliverable (observations, record). 22) Employer was uninsured for worker's compensation injuries for 816 calendar days during the relevant period, which is an exceptionally long time (Christensen). 23) It is unknown precisely how many employees Employer had during its uninsured periods, as it failed and refused to meet with the investigator and did not provide discovery (id.). 24) Several...

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