No. 00-01250 (2002). Land Transportation v. Thompson.

• Case Date: March 27, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-01250 (2002). Land Transportation v. Thompson LAND TRANSPORTATION, LLC ROCOR PETITIONER VS. DAVID THOMPSON; UNINSURED EMPLOYERS' FUND and HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED:March 27, 2002CLAIM NO. 00-01250APPEAL FROM HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Land Transportation, LLC and Rocor ("Land/Rocor") appeal from an opinion and award rendered November 20, 2001, by Hon. J. Kevin King, Administrative Law Judge ("ALJ"), finding the respondent, David Thompson ("Thompson"), to be an employee of the petitioner and granting him permanent partial disability benefits based upon a 9% disability rating. Land/Rocor also appeals from an order issued December 20, 2001, overruling its petition for reconsideration. On appeal, Land/Rocor argues the ALJ erred in finding Thompson to be an employee of the petitioner. Rather, Land/Rocor asserts that Thompson was an independent contractor as a matter of law at the time of his work-related injury. Consequently, Land/Rocor contends the decision of the ALJ must be reversed and Thompson's claim dismissed. Having thoroughly reviewed the evidence of record and applicable law, we find no merit in petitioners' arguments. We therefore affirm the determination of the ALJ. Thompson was born on February 25, 1952 and is a resident of Taylorsville, Spencer County, Kentucky. He has a high school education and a CDL. Past relevant work experience consists almost exclusively of professional over-the-road truck driving. Thompson testified he has been driving trucks for approximately thirty-two years. He has owned his own truck since 1990. Thompson began driving for Land/Rocor in June 1998. Thompson and Land/Rocor entered into a formal permanent lease agreement on July 22, 1998. Under that contract, Thompson agreed to furnish his tractor/truck "for the exclusive and continuous use" by Land/Rocor. The agreement was open-ended and according to its terms, operated year-to-year. The agreement could be terminated, however, by either party upon thirty days written notice, or immediately in the event either party violated any of the contract's material provisions. Under the contract, Thompson was required to maintain all operating licenses; to maintain as his sole costs and expenses any and all fuel, oil, grease, tires, and other items necessary for the operation of the equipment; to maintain the equipment in a neat and clean appearance; and, to pay all mileage based taxes and fuel taxes, highway use fees and road taxes, tolls, equipment use fees, and driver license fees, etc. Land/Rocor, per the agreement, was to have exclusive possession, control, and use of Thompson's truck and was permitted to sublease Thompson's truck to any other authorized carrier for purposes of transporting such commodities as might be available. However, Thompson was permitted the right to determine the method, means, and manner of complying with the terms of the agreement. The agreement further provided that Land/Rocor "shall exercise every reasonable effort" to furnish Thompson "as much traffic as is reasonable possible during the duration" of the agreement. Additionally under the contract, Thompson was to maintain and provide workers' compensation coverage and give Land/Rocor a certificate thereof unless Thompson elected to take advantage of Land/Rocor's "insurance program." Land/Rocor could make advances to Thompson for this purpose with the charges to be deducted from monies due the respondent from the petitioner. Specifically, Land/Rocor deducted a variety of different charges from monies due and payable to Thompson for purposes of payment of licensing fees, insurance, etc. Thompson testified it was his understanding he could not haul for any companies other than Land/Rocor during the period of his contract. He stated that although his wages were based upon 70% of the gross revenue per trip, he was generally paid a weekly salary. He carried his own vehicle insurance on his truck in case of an on-the-road accident. However, with regard to workers'...