12-0019. IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS' COMPENSATION LIABILITY AND ASSESSMENT OF A CIVIL PENALTY AGAINST EDWIN A. MILNER; EDWIN A. MILNER dba GLACIER SEAMLESS GUTTER; Employer Respondents.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0019. IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS' COMPENSATION LIABILITY AND ASSESSMENT OF A CIVIL PENALTY AGAINST EDWIN A. MILNER; EDWIN A. MILNER dba GLACIER SEAMLESS GUTTER; Employer Respondents 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, EDWIN A. MILNER; EDWIN A. MILNER dba GLACIER SEAMLESS GUTTER; Employer, Respondents.AWCB Decision No.12-0019Filed with AWCB Anchorage, Alaskaon January 26, 2012AWCB Case No. 700003494FINAL DECISION AND ORDERThe Petition for Finding of Failure to Insure and Assessment of Civil Penalties against Edwin A. Milner, and Edwin A. Milner doing business as Glacier Seamless Gutter (Employer or Mr. Milner) was heard on January 4, 2012, in Anchorage, Alaska. Rhonda Gerharz, Investigator for the Special Investigations Unit of the Workers' Compensation Division (Division), Alaska Department of Labor and Workforce Development (DOL), represented the State of Alaska and testified. Betty Milner (Mrs. Milner), Edwin Milner's spouse, appeared on behalf of Employer and testified at hearing. Velma Thomas appeared for the Alaska Workers' Compensation Benefits Guaranty Fund (Fund). John C. Waski (Mr. Waski) also testified. The record closed at the hearing's conclusion on January 4, 2012. ISSUES The Division contends Edwin A. Milner operated a business using employee labor when not insured for workers' compensation liability, failed to provide proof of workers' compensation liability coverage, and failed to insure for workers' compensation liability during the period September 9, 2008 through December 31, 2010. The Division contends Employer should be assessed a civil penalty for this period. Employer does not dispute these contentions, but asks that mitigating factors be considered if a civil penalty will be assessed. The Division makes similar contentions with respect to John Waski, who owned and operated Glacier Seamless Gutter prior to Mr. Milner. Mr. Waski contends he operated the business single-handedly when he owned it, never had any employees, and thus was not required to procure workers' compensation insurance. 1. May the Division's allegations with respect to Mr. Waski be considered here? 2. Did Employer fail to file evidence of compliance with workers' compensation laws during the period September 9, 2008 through December 31, 2010? 3. Did Employer fail to provide workers' compensation insurance coverage for its employees during the period September 9, 2008 through December 31, 2010? 4. Should Employer be assessed a civil penalty for failure to insure during the period September 9, 2008 through December 31, 2010, and if so, in what amount? FINDINGS OF FACTS Evaluation of the record as a whole establishes the following facts and factual conclusions by a preponderance of the evidence: 1) The Division's Petition for Finding of Failure to Insure for Workers' Compensation Liability, and for Assessment of a Civil Penalty (Petition) named Edwin A. Milner, and Edwin A. Milner, doing business as (dba) Glacier Seamless Gutter, as the sole respondent. (Petition, December 8, 2010). 2) Glacier Seamless Gutter is a small siding and gutter installation business. (DuPuis v. Glacier Seamless Gutter, AWCB Decision No. 11-0103 (July 19, 2011)(Dupuis I). 3) Although the Petition names Edwin A. Milner individually and doing business as Glacier Seamless Gutter as the sole respondent, the Petition and a Discovery Demand were served on both Employer and Mr. Waski. (Petition, December 8, 2010). 4) Mr. Waski is Mr. and Mrs. Milners' son-in-law. (Mrs. Milner). 5) Mr. Waski and his wife Shelley A. Milner-Waski owned, and Mr. Waski operated Glacier Seamless Gutter from June 28, 1993 through December 31, 1998. (Gerharz; Waski; Division Exhibit 5). 6) Mr. Waski testified he operated the business alone, with no employees. No evidence was introduced to contradict this testimony. (Waski; record). 7) Mr. Milner held an active business license to operate Glacier Seamless Gutter as a sole proprietorship after he acquired the business from Mr. Waski on or about September 8, 2008, until the business license expired on December 31, 2010. (DuPuis I; Gerharz; Mrs. Milner). 8) Mr. Milner operated Glacier Seamless Gutter as a part-time side business only, and worked primarily as a supervisor for Chumley's Inc., a large construction company on the Kenai Peninsula. (DuPuis I). 9) On October 25, 2010, Mr. DuPuis was injured while performing general labor, including installing gutters and siding, for Employer. (Id.) 10) This job injury brought Employer to the attention of the Office of Special Investigations, Workers' Compensation Division. (Gerharz). 11) Employer was operating without workers' compensation insurance the entire time he owned and operated Glacier Seamless Gutter, from September 9, 2008, through December 31, 2010. (Gerharz). 12) Glacier operated seasonally, and did not install siding and gutters during Alaska winters. Mrs. Milner testified the job at which Mr. DuPuis was injured was probably the last job Glacier performed, as Mr. Milner thereafter became ill, requiring hip replacement surgery, developing kidney disease, and receiving diagnoses of Scleroderma, Sjogren's disease, Gout, and Proteinuria. (Mrs. Milner) Medical records corroborate Mr. Milner has had serious medical issues since 2010. However, Employer's business records reflect at least one job performed in November, 2010. (Mrs. Milner; medical records; Division Exhibit 9). 13) According to Mrs. Milner and Mr. Waski, much of Glacier's work can be done by a single person. (Mrs. Milner, Mr. Waski). 14) Mr. Waski, a much younger man than Mr. Milner, testified he performed siding and gutter installations single-handedly when he owned the business. (Mr. Waski; experience, observations, judgment, unusual facts of the case and inferences therefrom). 15) Mrs. Milner testified Mr. Milner often performed Glacier jobs alone, or with her assistance, and occasionally with Mr. DuPuis' assistance. (Mrs. Milner). 16) Employer produced business records of jobs performed during calendar year 2010 only. (Division Exhibit 9). 17) Business records were not maintained, or at least were not produced, for years prior to 2010. (Mrs. Milner; experience, observations). 18) The 2010 business records reflect Mr. Milner performed contracted jobs alone, or assisted by Mrs. Milner, Mr. DuPuis, or someone known as "J.C." (Id.) 19) Mr. DuPuis was injured while employed for Glacier on October 25, 2010, incurring $34,150.77 in medical expenses for a hand laceration, and subsequent infection. (DuPuis I; printout of payments made by Alaska Workers' Compensation Benefits Guaranty Fund in AWCB Case No. 201016927). 20) Employer contested liability, but judgment in favor of Mr. DuPuis was entered on July 19, 2011. In addition to medical benefits, Mr. DuPuis was awarded temporary total disability benefits (TTD), attorney fees and costs. (DuPuis I). 21) Employer failed to pay the benefits awarded, and a supplemental order declaring amount of default was entered in Dupuis v. Glacier Seamless Gutter, AWCB Decision No. 11-157 (October 26, 2011)(Dupuis II). 22) Employer defaulted on payment of the sums owed in accordance with DuPuis v. Glacier Seamless Gutter, AWCB Decision No. 11-0103 (July 19, 2011). (DuPuis II). 23) The Alaska Workers' Compensation Benefits Guaranty Fund has paid benefits to and on Mr. DuPuis' behalf totaling $48,199.77. (Ms. Thomas; Printout of payments made by Alaska Workers' Compensation Benefits Guaranty Fund in AWCB Case No. 201016927). 24) Because Employer failed to produce business records before 2010, there is no evidence to support a finding, by a preponderance of evidence, Employer utilized employees in 2008 or 2009. (record). 25) Employer's business records for 2010 reflect Mr. Milner engaged employee labor on no less than 26 employee work days in 2010. The Division reached this figure by calculating as one work day any eight hour period, or portion thereof, worked by someone other than Mr. Milner. (Division Exhibit 9; Gerharz; DuPuis I, Finding of Fact 7). 26) Employer's business records, however, do not include the Van Dyke siding job at which Mr. Dupuis was injured while employed on October 25, 2010. Mr. Milner provided the Division with an explanation of the events occurring on October 25, 2010, in which he stated Mr. DuPuis worked 56.5 hours on the Van Dyke job. Calculating 8 hours as a work day, Mr. Dupuis worked seven days on the Van Dyke job. Mr. DuPuis' employment on this job increases Employer's known uninsured employee work days from 26 to 33. (Experience, observation, unusual facts of the case and inferences drawn therefrom). 27) Edwin A. Milner dba Glacier Seamless Gutter is an "employer" under the Alaska Workers' Compensation Act (Act). (DuPuis I). 28) Employer failed to provide evidence of compliance with workers' compensation insurance requirements for the period September 9, 2008 through December 31, 2010 (Gerharz). 29) Employer had an opportunity to file evidence of...