IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS’ COMPENSATION LIABILITY, AND ASSESSMENT OF A CIVIL PENALTY AGAINST,
PETER F. CUNNINGHAM D/B/A CUNNINGHAM ROOFING AND CARPENTRY, Respondent.
AWCB Decision No. 21-0003
AWCB No. 700007542
Alaska Workers Compensation Board
January 7, 2021
FINAL
DECISION AND ORDER
Kathryn Setzer, Designated Chair
The
Division of Workers’ Compensation, Special
Investigations Unit’s (SIU), July 27, 2020 petition for
a finding of Peter Cunningham’s d/b/a Cunningham
Roofing and Carpentry (Employer) failure to insurance
workers’ compensation liability, and assessment of a
civil penalty, was heard on the written record in Anchorage,
Alaska on December 17, 2020, a date selected on December 3,
2020. A December 3, 2020 prehearing conference gave rise to
this hearing. Investigator Doug Love represented the SIU (or
division). Employer did not file a brief. The record closed
after deliberations on December 18, 2020.
ISSUES
The SIU
requested an order dismissing defenses and accepting
SIU’s evidence regarding uninsured employee workdays.
It is presumed Employer opposes the request.
1)
Should Employer’s defenses be dismissed and SIU’s
evidence accepted?
The SIU
contends Employer used employee labor without the required
workers’ compensation insurance in violation of AS
23.30.075. The SIU contends a civil penalty is warranted for
Employer’s failure to insure for workers’
compensation. It is assumed Employer opposes a civil penalty
assessment for failing to insure.
2)
Should a civil penalty for failure to insure for purposes of
workers’ compensation liability be assessed, and if so,
in what amount?
FINDINGS
OF FACT
The
following facts and factual conclusions are established by a
preponderance of the evidence or are reiterated from In
re Peter F. Cunningham D/B/A Cunningham Roofing and
Carpentry, AWCB Decision No. 20-0033 (May 22, 2020)
(Cunningham I) and In re Peter F. Cunningham
D/B/A Cunningham Roofing and Carpentry, AWCB Decision
No. 20-0102 (November 6, 2020) (Cunningham II):
1) On
January 12, 2014, the Anchorage Daily News published an
article stating the primary structure on the Girl Scout Camp
Singing Hills property had been destroyed by arson in 2009
and rebuilding began in spring 2013. It listed Employer as a
subcontractor. (Anchorage Daily News Article, January 12,
2014).
2) On
January 30, 2014, Peter Cunningham forwarded Rebecca
Cunningham a January 30, 2014 email from a licensing examiner
from the Division of Corporations, Business and Professional
Licensing stating the division received the renewal packet
for Employer’s contractor license but it could not be
renewed because a copy of the original bond filed with the
division was not an acceptable proof of a current bond. Ms.
Cunningham forwarded the emails to an account manager at
Alaska USA Insurance Brokers, LLC, and asked for a copy of
their bond. (Emails, January 30, 2014).
3) On
May 15, 2015, Alaska National Insurance Company issued a
workers’ compensation insurance policy number
15EWW73388 for Employer. (NCCI Proof of Coverage Inquiry,
Accessed July 15, 2020).
4) On
November 6, 2015, Alaska National Insurance Company informed
Employer its workers’ compensation insurance policy
number 15EWW73388 was going to be cancelled for nonpayment of
premium on November 29, 2015. (Letter, November 6, 2015).
5) On
November 29, 2015, insurance policy number 15EWW73388 was
cancelled for nonpayment of premiu m. (NCCI Proo f o f
Coverage Inquiry, Accessed July 15, 2020).
6) On
April 5, 2016, Rebecca Cunningham provided information to
Alaska National Insurance Company for an audit of insurance
policy number 15EWW73388. (Policy Information, Cunningham
Roofing & Carpentry Cancellation Audit, April 5, 2016).
7) On
April 27, 2016, Peter Cunningham registered as a sole
proprietor construction contractor doing business as
Cunningham Roofing and Carpentry for roofing and rough and
finish carpentry. (Construction Contractor Registration
Application, April 27, 2016).
8) On
May 4, 2016, Peter Cunningham renewed his specialty
contractor license as a sole proprietor doing business as
Cunningham Roofing and Carpentry with no employees. (Biennial
Specialty Contractor License Renewal, May 4, 2016).
9) On
May 4, 2016, the Division of Corporations, Business and
Professional Licensing issued Peter Cunningham doing business
as Cunningham Roofing and Carpentry a specialty contractor
license. (Specialty Contractor License, May 4, 2016).
10) On
December 30, 2017, Peter Cunningham applied online to renew
the specialty contractor license as a sole proprietor doing
business as Cunningham Roofing and Carpentry with no
employees. (2017 Online Renewal Specialty Contractor License,
December 30, 2017).
11) On
February 26, 2018, Peter Cunningham renewed the specialty
contractor license as a sole proprietor doing business as
Cunningham Roofing and Carpentry with no employees.
(Specialty Contractor License Renewal, February 26, 2018).
12) On
March 26, 2018, the Division of Corporations, Business and
Professional Licensing issued Peter Cunningham doing business
as Cunningham Roofing and Carpentry a specialty contractor
license. (Specialty Contractor License, March 26, 2018).
13) On
July 2, 2019, the SUI found multiple reviews for Employer on
angieslist.com stating:
Pete Cunningham is very professional and his workers were
great. They worked hard despite bad weather and lots of rain
and did a great job. . . .
Rebecca and Pete were awesome. We are very pleased with
quality of their workmanship and their desire to do the work
the right way. . . .
The old roof was removed and repairs made on one day, on the
second day the new rood [sic], ridege [sic] vent, flashing,
etc. Everyone on Pete’s team was professional,
responsive and pleasant to deal with from beginning to end.
They cleaned up the yard to the point you never knew they had
been there. . . .
From start to finish, a very professional and personable
company to do the work. From the time I contacted them on
Angie’s, Pete got back to me within hours. . . . His
very nice wife kept in phone contact to keep us informed of
scheduling. . . . Their crew were hard workers. . . .
Peter and his workers were wonderful. Jake came to do the
estimate and he was nice, explained everything to me. . . .
(Angieslist.com Reviews, Accessed July 22, 2019).
14) On
July 22, 2019, the SIU accessed Employer’s public
Facebook page which stated its hours of operation were 8:00
a.m. to 6:00 p.m., Monday thru Saturday. (Employer Facebook
page, Accessed July 22, 2019).
15) On
August 7, 2019, the SIU found a Facebook page for Scotty Owen
(Vincent Scott DeVolld-Owen) stating he started a new job
with Cunningham Roofing & Carpentry in 2015 as a
carpenter. (Scotty Owen Facebook page, Accessed August 7,
2019).
16) On
August 7, 2019, the SIU accessed the Better Business Bureau
profile for Cunningham Roofing and Carpentry. It stated the
business was a sole proprietorship and listed Rebecca
Cunningham as the manager and Peter Cunningham as the owner.
(Better Business Bureau Profile, Accessed August 7, 2019).
17) On
September 3, 2019, the SIU requested a stop work order.
Investigator Love signed a notarized affidavit stating:
a) On July 18, 2019, the SIU received a complaint alleging
Employer was operating with employees without workers’
compensation liability insurance at 13001 Galveston Circle in
Anchorage, Alaska.
b) On July 22, 2019, Investigator Love conducted an on-site
investigation at 13001 Galveston Circle in Anchorage, Alaska
and observed two males performing roofing work. He
interviewed Jake DeVolld who admitted to working for Employer
and that the other worker was his brother Scott DeVolld.
Neither Jake nor Scott were wearing personal protective
equipment, such as fall protection harnesses or safety
glasses. The ladder used to access the room was not secured
in place.
c) On July 22, 2019, Investigator Love interviewed Peter
Cunningham and informed him Employer needed to provide proof
of workers’ compensation coverage within 10 days and
that a stop order could be issued if he failed to do so.
d) On August 6, 2019, Investigator Love attempted to contact
Peter Cunningham by telephone and left a message requesting
Employer provide proof of workers’ compensation
insurance.
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