Gann, 090921 ARWC, G906072

Docket NºCLAIM G906072
Case DateSeptember 09, 2021
CourtKansas
JACEN GANN, EMPLOYEE CLAIMANT/PLAINTIFF
CK ASPHALT, LLC, EMPLOYER RESPONDENT #1
FARMINGTON CASUALTY CO./ TRAVELERS INS. CO., CARRIER/TPA RESPONDENT #1
BOBBY KENNEDY CONSTRUCTION CO., EMPLOYER RESPONDENT #2
FARMINGTON CASUALTY CO./ TRAVELORS INS. CO., CARRIER/TPA RESPONDENT #2
CLAIM No. G906072
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
September 9, 2021
         Hearing before Administrative Law Judge James D. Kennedy on the 14th day of July, 2021, in Little Rock, Pulaski County, Arkansas.           Claimant/plaintiff is represented by Laura Beth York and Jeremy McNabb, Attorneys at Law, of Little Rock, Arkansas.           Respondents #1/defendants are represented by Amy Markham, Attorney at Law, of Little Rock, Arkansas. CK Asphalt, LLC, and Farmington Casualty Co./Travelers Ins. Co., Carrier/TPA, have accepted the claimant/plaintiff’s claim as compensable and are paying benefits at the time of the hearing.           Respondents #2/defendants Bobby Kennedy Construction, Inc., and Farmington Casualty Co./Travelers Ins. Casualty Co., Carrier/TPA, are represented by David Donavan, Attorney at Law, of Little Rock, Arkansas.           JAMES D. KENNEDY, Administrative Law Judge          STATEMENT OF THE CASE          A hearing was conducted on the 14th day of July, 2021, to determine the sole issue of the employment relationship between Jacen Gann, the claimant/plaintiff, and Bobby Kennedy Construction Company, Inc., the defendant/respondent #2. All other issues were reserved.          The claimant/plaintiff’s position was that at the time of the accident, he was an employee of CK Asphalt, LLC, and the exclusive remedy doctrine under the Arkansas Workers’ Compensation law only applied to CK Asphalt, LLC, and not to Bobby Kennedy Construction Company, Inc., the company that owned the dump truck and employed the driver driving the dump truck, which was involved in the accident that injured the claimant/plaintiff Gann.          The respondent #2’s, Bobby Kennedy Construction’s Company Inc., position at the time of the hearing was that the claimant/plaintiff and the entire CK Asphalt crew were managed and controlled by Bobby Kennedy Construction Company, Inc., employees; that Bobby Kennedy Construction, Inc., had the right to hire and fire the employees; that Bobby Kennedy Construction, Inc., should be considered an employer of the claimant/plaintiff, based upon tests that Arkansas courts have outlined in regard to the ability to control a worker, and that, based upon Bobby Kennedy Construction Inc.’s argument, the tort claim filed in Van Buren County Circuit Court against Bobby Kennedy Construction Company, Inc., should be barred by the Exclusive Remedy Provisions of the Arkansas Workers’ Compensation law, specifically Ark. Code Ann. § 11-9-105.          A motion to transfer this question to the Arkansas Workers Compensation Commission was filed in the Van Buren County Circuit Court by Michael Dorton, the defendant driver of the dump truck in question, and by Bobby Kennedy Construction Company, Inc., on June 22, 2020. The motion provided that the claimant/plaintiff Gann was injured while working on the job on September 12, 2019, when he was struck by a truck driven by Michael Dorton, who was working for Bobby Kennedy Construction Company, Inc., at the time. The motion further provided that the claimant/plaintiff filed a claim for workers’ compensation benefits and had been receiving benefits from Travelers Ins. An order was entered by the Honorable Circuit Court granting the Motion. This Motion and Order were made part of the record without objection as “Commissions Exhibit 4”.          A prehearing conference was conducted on the May 10, 2021, and a Prehearing Order was filed in this matter on May 11, 2021. A copy of the Prehearing Order was marked “Commissions Exhibit 1” and made part of the record without objection. It was stipulated that the Arkansas Workers’ Compensation Commission had exclusive jurisdiction to determine the employment relationship between the claimant/plaintiff, Jacen Gann, and Bobby Kennedy Construction Company, Inc., and that this matter was transferred to the Arkansas Workers’ Compensation Commission by an Order of the Circuit Court of Van Buren County Civil Division to determine the employment relationship between the parties. The parties further stipulated that the claimant/plaintiff was injured while working on the job on September 12, 2019. All other issues were reserved.          Additionally, the claimant/plaintiff’s response to the Prehearing Questionnaire was admitted as Commission Exhibit #2, and the respondents’ response to the Prehearing Questionnaire was admitted as Commission Exhibit #3.          The claimant/plaintiff’s Exhibit #1, which consisted of 175 pages, was also admitted into evidence without objection. Additionally, the parties were instructed to submit briefs simultaneously forty-five (45) days post-hearing. The briefs are blue-backed and made a part of this opinion. The Rule was requested at the time of testimony.          The witnesses were Bobby Kennedy and Cynthia Kennedy, husband and wife and fifty-fifty (50/50) owners of all of the companies in question. From a review of the record, to include the documentary evidence and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witnesses and observe their demeanor, the following findings of fact and conclusions of law are made in accordance with Ark. Code Ann. § 11-9-704.          FINDINGS OF FACT AND CONCLUSIONS OF LAW          1. The Arkansas Workers’ Compensation Commission has exclusive jurisdiction to determine the employment relation between claimant/plaintiff Gann and Bobby Kennedy Construction, Inc.          2. The stipulations agreed to by the parties are hereby accepted as fact.          3. The claimant/plaintiff has been receiving workers’ compensation benefits from Travelers Insurance, the carrier that provides workers’ compensation insurance for both Bobby Kennedy Construction Company, Inc., and CK Asphalt, LLC.          4. That clamant/plaintiff Gann received his W-2 from CK Asphalt, LLC, and was an employee of CK Asphalt, LLC, at the time of the work-related accident.          5. That the Workers’ Compensation First Report of Injury that was filed with the Commission on September 17, listed the employer as Bobby Kennedy Construction Co.          6. That the only supervisors of the employees of CK Asphalt, LLC, were employed by Bobby Kennedy Construction, Inc.          7. That Bobby Kennedy Construction, Inc., CK Asphalt, LLC, and BLK Quarry, LLC, were owned fifty-fifty (50/50) by Bobby Kennedy and Cynthia Kennedy, husband and wife.          8. That a single workers’ compensation insurance policy was issued and apportioned at the end of the year between CK Asphalt, LLC, Bobby Kennedy Construction, Inc., and BLK Quarry, LLC.          9. That Bobby Kennedy Construction Company, Inc., satisfied the burden of proof to provide that claimant/plaintiff Gann was a dual or special employee of Bobby Kennedy Construction Company, Inc., as well as CK Asphalt, LLC, at the time of the work-related accident. Consequently, Bobby Kennedy Construction, Inc., is entitled to the exclusive remedy provisions of the Arkansas Workers’ Compensation law, specifically Ark. Code Ann. § 11-9-105.          REVIEW OF TESTIMONY AND EVIDENCE          The first person called as a witness was Bobby Kennedy, of Quitman, Arkansas, the husband of Cynthia Kennedy. He testified that the companies operate together building roads and that the business began in 1985 as a sole proprietorship. They started with a dozer and grew the business from there. Originally, they were not incorporated. (Tr. 10) Bobby Kennedy Construction Company, Inc., was incorporated on March 13, 2003, as an Arkansas corporation and owned fifty-fifty (50/50) by Bobby and Cynthia Kennedy. Bobby Kennedy served as the president and Cynthia as the secretary. He went on to testify that at some point in 2017, they started operating BLK Quarry and were doing gravel, dirt, and asphalt work. (Tr. 11) Prior to 2017, they outsourced the asphalt part of the work to different companies or subcontractors. They work in about a sixty (60)-mile radius of Quitman, Arkansas, primarily providing services for White, Cleburne, Van Buren, and Faulkner Counties, as well as the Arkansas Highway Department. BLK Quarries, Inc., was a sperate corporation that produced their crushed gravel. (Tr. 12, 13) BLK Quarries, Inc., was also owned fifty-fifty (50/50) by Bobby and Cynthia Kennedy. CK Asphalt, LLC, was...

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