94-0761. JOHN McHUGH vs. WILLIAM L. LEAVITT dba L and L LEASING; BIG SKY AMUSEMENTS INC.; and THE UNINSURED EMPLOYERS' FUND Defendants.

• Court: Utah

Utah Workers Compensation Decisions 1995. 94-0761. JOHN McHUGH vs. WILLIAM L. LEAVITT dba L and L LEASING; BIG SKY AMUSEMENTS INC.; and THE UNINSURED EMPLOYERS' FUND Defendants THE INDUSTRIAL COMMISSION OF UTAHJOHN McHUGH, Applicant, vs. WILLIAM L. LEAVITT, dba L and L LEASING; BIG SKY AMUSEMENTS, INC.; and THE UNINSURED EMPLOYERS' FUND, Defendants.Case No. 94-0761ORDER DENYING MOTION FOR REVIEWJohn McHugh asks The Industrial Commission of Utah to review the Administrative Law Judge's decision denying Mr. McHugh's claim for benefits under the Utah Workers' Compensation Act. The Industrial Commission of Utah exercises jurisdiction over this Motion for Review pursuant to Utah Code Ann. §63-46b-12, Utah Code Ann. §35-1-82.53, and Utah Admin. Code R568-1-4.M. ISSUES UNDER REVIEW In his motion for review, Mr. McHugh contends: 1) The ALJ erred in finding Mr. McHugh was not an employee of William L. Leavitt at the time of Mr. McHugh's accident and injury; 2) The ALJ erred in concluding Big Sky Amusement was not Mr. McHugh's statutory employer; and 3) The ALJ erred in allowing Mr. Leavitt to present evidence at the hearing on Mr. McHugh's claim. FINDINGS OF FACT The evidence presented in this case, as well as the case's procedural background, is set forth in the ALJ's decision and will not be repeated in full here. Having reviewed the record and the parties' memoranda, the Industrial Commission affirms the ALJ's findings of fact, summarized as follows: Mr. McHugh was employed by Mr. Leavitt as a carnival ride operator. On August 27, 1993, Mr. McHugh reported to the work site with a twelve-pack of beer, some of which he proceeded to drink. Some time after noon, one of Mr. McHugh's co-workers reported to Mr. Leavitt's secretary that Mr. McHugh was intoxicated. This information was passed on to Mr. Leavitt, who located Mr. McHugh, observed him to be intoxicated and fired him. Mr. Leavitt took Mr. McHugh's employee I.D. and watched him leave the carnival site. Later that same afternoon, Mr. McHugh climbed to the top of one of the carnival rides. When the carnival ride began to spin, Mr. McHugh was thrown off, suffering the injuries for which he now seeks workers' compensation benefits. After Mr. McHugh filed his application for workers' compensation benefits, the Industrial Commission's Adjudication Division instructed Mr. Leavitt to file a...