No. 9-1005. BLUEGRASS AREA PETITIONER/ DEVELOPMENT DISTRICT CROSS-RESPONDENT VS. MATTHEW STANFORD RESPONDENT/CROSS-PETITIONER U.S. ARMY CADET CORPS, INC.; UNINSURED EMPLOYERS' FUND; and HON. CHRIS DAVIS,.

Case Date:December 01, 2010
Court:Kentucky
 
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Kentucky Workers Compensation 2010. No. 9-1005. BLUEGRASS AREA PETITIONER/ DEVELOPMENT DISTRICT CROSS-RESPONDENT VS. MATTHEW STANFORD RESPONDENT/CROSS-PETITIONER U.S. ARMY CADET CORPS, INC.; UNINSURED EMPLOYERS' FUND; and HON. CHRIS DAVIS, BLUEGRASS AREA PETITIONER/ DEVELOPMENT DISTRICT CROSS-RESPONDENT VS. MATTHEW STANFORD RESPONDENT/CROSS-PETITIONER U.S. ARMY CADET CORPS, INC.; UNINSURED EMPLOYERS' FUND; and HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE RESPONDENTS AND U.S. ARMY CADET CORPS, INC. PETITIONER/CROSS-RESPONDENT VS. MATTHEW STANFORD RESPONDENT/CROSS-PETITIONER BLUEGRASS AREA DEVELOPMENT DISTRICT; UNINSURED EMPLOYERS' FUND; and HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: December 1, 2010CLAIM NO. 9-1005APPEAL FROM HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGEOPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING AND ORDER DISMISSING THE APPEAL OF USACC * * * * * *BEFORE: ALVEY, Chairman, COWDEN and STIVERS, Members.COWDEN, Member. Bluegrass Area Development District ("Bluegrass") appeals from the June 8, 2010 opinion, award and order of Hon. Chris Davis, Administrative Law Judge ("ALJ") and from the ALJ's July 12, 2010 order ruling on petitions for reconsideration. The U.S. Army Cadet Corps, Inc. ("USACC") appeals from the opinion and award and the July 12, 2010 order as well as from an additional August 2, 2010 order ruling on a second petition for reconsideration filed by Matthew Stanford ("Stanford"). Additionally, Stanford cross-appeals with regard to the appeals by Bluegrass and USACC. Bluegrass argues the issue of up-the-ladder liability was not preserved for determination by the ALJ and the ALJ erred by imposing liability on Bluegrass pursuant to KRS 342.610(2). Bluegrass contends it is not a person within the meaning of the statute and the work performed by Stanford for USACC was not of a kind which is a regular or recurrent part of the work of the trade, business, occupation or profession of Bluegrass. Bluegrass further argues it is a governmental entity and therefore cannot have up-the-ladder liability. Finally, Bluegrass argues it is not a contractor within the meaning of the statute. USACC argues the ALJ erred in finding Stanford was an employee of USACC or in not finding dual employment at the time of the injury. USACC further argues the ALJ erred in finding Stanford was acting within the course and scope of employment at the time of the injury. For his cross-appeals, Stanford argues the ALJ erred in the opinion, order and award by noting there were no known, unpaid medical bills. Stanford seeks to have the phrase removed to preclude the employer from arguing it has been deemed the law of the case there were no unpaid medical bills as of the date of the opinion. The parties stipulated Stanford has been permanently, totally disabled since the date of his injury. Accordingly, there is no need to summarize medical evidence in this claim. The ALJ having provided a thorough and accurate summary of the evidence from the lay witnesses in this claim, the Board hereby adopts the ALJ's summary as follows:
2. Matthew Stanford Matthew Stanford (hereinafter "Stanford") is a twenty-four year old college graduate. His work experience has been as a teaching assistant, auxiliary policy officer, restaurant supervisor, customer service representative, and cadet instructor. Stanford testified by deposition on March 4, 2010. He stated he began volunteering for U.S. Army Cadet Corps., Inc. (hereinafter "Cadet Corps" or U.S. Army Cadet Corps") approximately four weeks before he began working for the Bluegrass Area Development District.
He was paid $7.25 per hour for 30 hours per week by Bluegrass Area Development District. He would routinely complete his time card so that it showed he worked 8 a.m. to 3 p.m., five days a week. He was never told he had to work certain days or hours for the Bluegrass Area Development District just that he was only allowed to work 30 each week.
During the 30 hours, he worked for Bluegrass Area Development District; he performed the same duties he did while volunteering for U. S. Army Cadet Corps. He was training, watching, and interacting with the cadets all day and night. Stanford spoke with an agent of Bluegrass Area Development District and was told his work instructing cadets was within the job duties of community relation activities. He was never instructed not to leave the Millersburg job site. Stanford testified he never received money from U.S. Army Cadet Corps but he was provided housing and meals when he was volunteering.
Stanford stated on July 23, 2009 he was assigned to the stairway to heaven obstacle, on the obstacle course at the Disney Training Center. After all of the cadets had finished the obstacle he was assigned to he followed them through the course. Stanford testified he was instructed to go through the course with the cadets and to perform some of the obstacles or "to lead by example'.
Around 2:00 p.m. the group arrived at the zip-line. He did not see any signs indicating the zip line was not operable. He waited approximately 20 to 30 minutes as others completed the zip-line. Stanford took his turn on the zip line and as he was going across the zip line he fell.
He is now unable to work and requires nursing assistance in the morning and evening. An occupational therapist comes three times a week. He needs assistance to bathe, dress and use the bathroom.
3. Leonard Paul Stoltz, II Mr. Stoltz is the executor director for Bluegrass Area Development District. He has worked for this entity since 1984. Bluegrass Area Development District received money from the federal government as part of the Workforce Investment Act. He along with the board decided how to spend the money. By Learning U Earn (BLUE) was established to help place youth into summer work programs. The youth would be an employee of Bluegrass Area Development District and would be covered by their insurance. The employee would work 30 hours per week and be paid $7.25 per hour.
Colonel Land, with the U.S. Army Cadet Corps, entered into an agreement with Bluegrass Area Development District to use BLUE employees at his Millersburg facility. The agreement stated the employees would perform clerical duties, grounds maintenance, food preparation, and community relation activities. Stoltz testified he never agreed to let the BLUE employees work off site or be transported back and forth from different locations.
Stoltz testified Colonel Land was not forth coming [sic] with them about the duties the BLUE employees would be performing. The employees were never given permission to run drills, supervise cadets, lead physical training, or work 24 hours a day. The employee had the right to volunteer for other duties but they would not be paid by the BLUE program.
Stoltz testified an employee of Bluegrass Area Development District went to the Millersburg facility on July 16, 2009 and shot video of Stanford for a promotional video for the BLUE program. The video showed cadets marching and Stanford stated his primary job was to instruct cadets. The video did not show BLUE employees performing clerical work, grounds keeping, or working in a mess hall.
Ms. Monica Miller was an employee of Bluegrass Area Development District and responsible for insuring the BLUE employees were performing the duties agreed upon in the Worksite Application. Attached to the deposition of Stoltz was a Work Site Review form completed by Miller on July 8, 2009. Ms. Miller indicated only 2 of the 9 BLUE employees were on site at the time of her visit. The other employees were off campus training.
Also attached to Stoltz's deposition was the executed Worksite Application. The application indicated the worksite for the BLUE employees was the National Cadet Training Center in Millersburg, Kentucky. The work hours would be 8:00 a.m. to 5:00 p.m. Colonel Land signed the application on May 5, 2009. Stoltz stated neither the worksite application nor the worksite agreement addressed amending or changing duties or work locations. Colonel Land never requested a change of his application.
Stoltz was asked about the timecard for Stanford for the time period from July 10, 2009 through July 24, 2009. He indicated the card showed Stanford worked from 8:00 a.m. until 12:00 a.m. [sic] and from 1:00 a.m. [sic] to 8:00 p.m. Stoltz commented the card appeared to have been doctored but it was signed off on by Bluegrass Area Development District on August 6, 2009. Stoltz did not pay Stanford for the day of his accident because he was working off the worksite.
4. Jennifer Compton Ms. Compton is the associate director of the WIA program for Bluegrass Area Development District. She was deposed on January 25, 2010. Compton stated the BLUE program was established to provide low income and disadvantaged youths with work experience. She, and/or her staff, went to local government and business meetings and provided information about the program. After doing so, she was contacted by Colonel Land of the U.S. Army Cadet Corps about the program.
Colonel Land faxed Ms. Compton a worksite application and she visited the work site. Colonel Land never told her the employees would be working at different locations or that they would be conducting physical training. Colonel Land had the names of people he wanted to use and asked if they could be employed by the BLUE program. It was determined they would be considered residents of
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