No. 06-00830. Courtney v. General Packaging Equipment Company.

Case Date:January 22, 2008
Court:Kentucky
 
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Kentucky Workers Compensation 2008. No. 06-00830. Courtney v. General Packaging Equipment Company BOYD COURTNEY PETITIONER VS. GENERAL PACKAGING EQUIPMENT COMPANY and HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTEREDJanuary 22, 2008: CLAIM NO. 06-00830APPEAL FROM HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGEOPINION AFFIRMING * * * * * * BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.STIVERS, Member. Boyd Courtney ("Courtney") appeals from a decision rendered by Hon. Irene Steen Administrative Law Judge ("ALJ") dismissing his workers compensation claim for a back injury against General Packaging Equipment Company. ("General Packaging") General Packaging is located in Houston, Texas. The injury occurred while Courtney, a Kentucky resident was working on assignment in Alabama. The ALJ determined Kentucky did not have jurisdiction over Courtney's claim and further held Courtney was an independent contractor rather than an employee of General Packaging. On appeal Courtney argues the ALJ erred in both her determination concerning extraterritorial jurisdiction and employment relationship. General Packaging filed a protective cross-appeal concerning a settlement Courtney reached with a third-party tortfeasor. Courtney, born October 4, 1964, has a work history involving primarily employment as a service technician for packaging equipment manufacturers. Prior to working for General Packaging, he worked for another employer from March 1993 until June 2001 performing essentially the same type of work he performed for General Packaging. Courtney testified his work with General Packaging consisted of building and maintaining packaging machines used to package foods sold in bags such as chips and coffee. As part of his work with General Packaging, Courtney traveled nationally and internationally installing, servicing and repairing equipment and training employees, repairing and training employees. Until September 2005, Courtney lived in Houston, Texas where General Packaging is located. Courtney explained that in July or August 2005 he approached his supervisor Geoff Knowers to let him know when his lease was up on his apartment in Houston and he would be moving back to Kentucky to look after his elderly parents on their small farm in Crittenden, Kentucky. According to Courtney he and Knowers, the vice president of General Packaging negotiated a change in his employment situation where he would go from being a salaried employee to being paid $35 per hour. He would be able to work from his home in Kentucky traveling to plants where the bagging machines were located. The new arrangement went into effect when Courtney moved back to Kentucky in September 2005. Courtney explained his understanding of the arrangement. He was paid $1000 per month retainer paid in two $500 bimonthly installments. General Packaging no longer carried health insurance on him. Courtney testified there was no discussion as to whether he would be allowed to work for other employers. He stated, however, there was no other work that he would do. He further testified there was never any discussion about him being able to hire other people to do work for him. According to Courtney the retainer was to keep him at General Packaging's beck and call so when they needed him on an emergency basis he would be available for work on short notice. Courtney testified he got his assignments either by a phone call or an e-mail and his itinerary was then faxed to him. He stated he did not have the option of rejecting work. He testified there was no job he rejected up until the time of his injury. Following his injury he attempted to perform a job, was unable to and therefore this work assignment was rejected. Once he got an assignment, he would determine the appropriate tools needed to perform his job. He had a bag of hand tools such as wrenches and sockets that he kept at home. If more specialized tools or extra parts were needed, they were either sent to him or to the factory where he would be working. Concerning the travel arrangements, Courtney testified General Packaging made the travel arrangements and paid for the air fare. Courtney paid for the rental car, hotel and meals and would be reimbursed by General Packaging once he mailed in his expense report which he filled out when he returned home. He also filed field reports concerning the work done. Those reports were completed at the plant and signed by someone at the plant. According to Courtney his job did not really change upon moving to Kentucky. He testified rather than going to Texas, he went directly to his assignment. He also testified he spent considerable time preparing for the job and completing his paperwork at home. He would generally get one or two days notice of a job that needed to be performed. He testified he was paid only for hours worked while traveling and was not paid for any of the work done at home. Sometimes he was called at the last minute for an emergency situation. Courtney testified that he believed himself to be an employee rather than an independent contractor. It was his understanding he was on call for whenever General Packaging had a job for him to perform. He testified he never held himself out as an independent business but only as an employee of General Packaging. He was specifically trained on General Packaging machines. Geoff Knowers would send him the instructions for the job by phone call and one of the ladies in the office in Texas would send him the itinerary. If a new problem arose at the plant where he was fixing a machine, he did not have the authority to fix the problem without first getting authorization from Texas. Servicing machines was part of General Packaging's regular business. They not only manufactured machines but also serviced them. Courtney testified concerning a form from the Texas Department of insurance sent to him by General Packaging, following his injury that indicated he was a general contractor. He said it was sent to him along with his retainer and he was told he needed to fill it out to continue to receive his retainer. Courtney testified he signed the form but attached a Post-It note indicating it did not apply to the job being performed when injured. Attached to Courtney's deposition was a letter dated August 26, 2005 addressed to Courtney and signed by Geoff Knowers. The letter stated it was to confirm the agreement that Courtney would be paid $500 twice a month and work at the rate $35 per hour. All expenses would be paid at cost including auto rental insurance if a rental car was required. Courtney sustained an injury on March 1, 2006 while working at a plant in Alabama. He testified he flew out of the Cincinnati airport to Birmingham. Upon arriving in Birmingham, he got a rental car and went to the plant of Rainbow Technologies where the machine was located. Upon arriving at the plant he was to assemble a machine known as a Model 80 Packager. The accident occurred while Courtney was standing on the top of the machine, installing components when it was hit by a forklift. He testified the next thing he knew he was laying on the floor screaming in pain. He fell 80 inches from the top of the machine to the floor. Subsequently Courtney found out Rainbow Technologies rented space from a company known as Bag Tech. Later he learned a member of the family who owned Bag Tech had gotten on the forklift and then jumped off of it and just let it go. He sought treatment at a medical center in Birmingham where he was x-rayed, given medication and released. Medical records from the facility indicate Courtney did not list an employer and was uninsured. Courtney testified that once he indicated he did not have medical insurance there was no further inquiry on the matter...

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