Opinion
No. 2002-CA-001206-WC.
Rendered November 15, 2002.
Petition for Review of a Decision of the Workers' Compensation Board, Action No. WC-00-01270.
Tommy Chamberlin, Pikeville, Kentucky, Brief for Appellant.
H. Brett Stonecipher, Lexington, Kentucky, Brief for Appellee, Homeless Housing Coa.
Before: EMBERTON, Chief Judge, JOHNSON, and SCHRODER, Judges.
OPINION
This is a petition for review of an opinion of the Workers' Compensation Board (the "Board") affirming a decision of the Administrative Law Judge ("ALJ") that the claimant, who built low-income housing for appellee, was not an employee of appellee because he was hired by a charitable organization to perform services for aide or sustenance only pursuant to the exemption in KRS 342.650(3). We agree with the ALJ and the Board that the claimant was not an employee of the respondent thus respondent was exempt from providing workers' compensation coverage for petitioner. Hence, we affirm.
In September of 1998, James Anderson signed a Member Participation Agreement with the Homeless and Housing Coalition of Kentucky, Inc. ("HHCK"), a nonprofit corporation which builds houses for low-income individuals. Thereafter, he began building houses for HHCK. The agreement, which referred to Anderson as a "member," provided that Anderson must complete 1700 hours of service during the one-year term of the agreement and that he would receive $8,340 as a "living allowance," plus a $4,725 educational award at the completion of his service. Per the agreement, Anderson also received health insurance, a child-care allowance, mileage, expenses, and accident insurance. HHCK additionally agreed to provide Anderson with unemployment insurance.
Anderson was assigned to a project building houses for the Pikeville Habitat for Humanity. This particular project was funded for HHCK entirely by Americorps. Americorps, the domestic federal equivalent of the Peace Corps, is a network of national service programs that recruits persons to provide services to meet critical needs in education, public safety, health, and the environment. The agreement with HHCK provided that Anderson was subject to the conditions and rules of membership in the Americorps Program as funded under the National and Community Service Act of 1990, Chapter 42 U.S.C.A. Americorps members serve through nonprofit corporations, public agencies, and faith-based organizations. It should be noted that Anderson always received his paycheck from HHCK and that FICA taxes were withheld therefrom. It was undisputed that Anderson's W-2 indicated that he was an employee of HHCK.
On October 26, 1998, Anderson injured his knee while working on the roof of a Habitat for Humanity house. Anderson subsequently filed a claim for workers' compensation benefits. The membership agreement stated nothing about workers' compensation benefits. It was HHCK's position that Anderson was not an employee, but was a volunteer working only for a living allowance which constituted "for aid or sustenance only pursuant to the exemption in KRS 342.650(3). The ALJ agreed, finding that HHCK was exempt from providing Anderson workers' compensation coverage under KRS 342.650(3). The Board affirmed the ALJ and this petition for review followed.
KRS 342.640(1) provides:
The following shall constitute employees subject to the provisions of this chapter, except as exempted under KRS 342.650: (1) Every person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of employees, whether paid by the employer or employee, if employed with the knowledge, actual or constructive, of the employer;
KRS 342.650(3) exempts employers from providing workers' compensation coverage on the following individuals:
(3) Any person performing services in return for aid or sustenance only, received from any religious or charitable organization.
Under the National and Community Service Act of 1990, "[a] participant shall not be considered to be an employee of the program that receives assistance under this title." 42 U.S.C.A § 12511(17)(B). Under 42 U.S.C.A § 12594(a)(1) and (3), all full-time participants under the Act shall receive a "living allowance in an amount equal to or greater than the average annual subsistence allowance provided to VISTA volunteers under section 105 of the Domestic Volunteer Service Act of 1973," except that such allowance "shall not exceed 200 percent of the average annual subsistence allowance provided to VISTA volunteers under section 105 of the Domestic Volunteer Service Act of 1973."
The evidence adduced at the hearing revealed that Anderson continued to work at HHCK after his injury until August of 1999 and earned $15,652 in the 1998-99 year. It was unclear as to where the monies in excess of the $8,340 came from. There was some evidence that it came from a fund-matching program of the Pikeville Habitat for Humanity.
Judith Levey, the executive director for HHCK, testified that it has seven actual employees who work in their office administering their federal funding and who are paid salaries. Only these employees are covered by workers' compensation insurance. According to Levey, all other workers under HHCK's authority are national service volunteers who are not covered by workers' compensation insurance.
Throughout Anderson's testimony, he referred to himself as a volunteer. He stated that he had worked for years in the construction business and then owned his own hardware store until he ultimately got burned out on business and wanted to do some volunteer work.
As the trier of fact, the ALJ determines the weight, credibility, substance, and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985). When more than one reasonable inference may be drawn from the evidence, the ALJ is given great discretion in choosing which one to believe. Jackson v. General Refractories Company, Ky., 581 S.W.2d 10 (1979). The function of this Court in reviewing the Board "is to correct the Board only where the . . . Court perceives the Board has overlooked or misconstrued controlling statute or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687 (1992).
The facts in the instant case are essentially undisputed. Nevertheless, the ALJ had to weigh all of the evidence, some of which was indicative of employee status and some of which was not, in order to reach the legal conclusion as to whether Anderson was an employee of HHCK for workers' compensation purposes. In Purchase Transp. Services v. Estate of Wilson, Ky., 39 S.W.3d 816, 817-18 (2001), where the issue was whether the decedent was an employee or independent contractor for workers' compensation purposes, the Court stated:
A finding of fact is erroneous as a matter of law and may be disturbed on appeal only if it is so unreasonable under the evidence that a contrary finding is compelled. Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986). When considering questions of law or mixed questions of fact and law, the reviewing court has greater latitude in determining whether the findings were supported by evidence of probative value than when only a question of fact is at issue. Uninsured Employers' Fund v. Garland, Ky., 805 S.W.2d 116 (1991).
Anderson insists that under Sears v. Oakwood Training Facility, Ky. App., 623 S.W.2d 232 (1980), which was cited neither by the ALJ nor the Board, the ALJ's and the Board's decisions were erroneous as a matter of law. Sears worked in a "Foster Grandparents" program which was federally funded, although administered by the Kentucky Department of Human Resources, a state agency. Under the program, Sears was termed a volunteer and was required to work 20 hours a week. She received $1.60 an hour, $1 per day for transportation, accident insurance, and a free annual physical exam. The money Sears received was not subject to any taxes pursuant to 45 C.F.R. § 1208 4-6(6). Sears was injured at work and made a claim for workers' compensation benefits. The Board determined that Sears was exempt from coverage under KRS 342.650(3), the same exemption at issue in the present case. On appeal, this Court reversed, adjudging that Sears was an employee under the Workmen's Compensation Act. The Court looked to, among other things, the fact that Sears was paid an hourly wage and the fact that the program was administered by a state agency. We see those two facts as meaningful distinctions from the instant case.
As stated earlier, KRS 342.650(3) excludes any person "performing services in return for aid and sustenance only, received from any religious or charitable organization." (emphasis added.) In the present case, Anderson received his monies from a nonprofit corporation which is a charitable organization (unlike the state of Kentucky). Anderson did not work for an hourly rate, but rather received a lump sum termed a living allowance in the agreement signed by Anderson and which, under federal law, was based on the annual subsistence allowance for VISTA volunteers. Levey testified that the money received by Anderson was only a living allowance in return for his community service. Another significant distinction from Sears is the provision in 42 U.S.C.A § 12511(17)(B) which explicitly states that participants are not to be considered employees of the program receiving assistance from Americorps, which is applicable in the case at bar since the program under which Anderson worked was funded entirely by Americorps. Even Anderson himself continuously referred to himself as a volunteer in his testimony.
Anderson maintains that his receipt of monies from HHCK constituted more than simply "aid or sustenance" under KRS 342.650(3) because it was not in the form of food or life-sustaining goods. In support of this argument, he cites two statutes (KRS 311.621(3) and KRS 426.310(1)) containing the term "sustenance." Neither of these statutes is referenced by nor even remotely related to the Workmen's Compensation Act. Hence, they are not applicable. Further, we reject the notion that "aid or sustenance" cannot be conferred in the form of money.
Finally, Anderson argues that the ALJ erred in failing to make more specific findings. We disagree. It is not necessary for the ALJ to make a detailed analysis of all of the facts in order to render sufficient findings of fact under KRS 342.275. Big Sandy Community Action Program v. Chaffins, Ky., 502 S.W.2d 526 (1973). The ALJ need only make adequate findings of fact to support his conclusions, Mosely v. Ford Motor Co., Ky.App., 968 S.W.2d 675 (1998), which the ALJ did in the instant case.
From the above-stated evidence and the applicable law, we cannot say the ALJ erred in his findings of fact and in reaching the legal conclusion that Anderson was exempt from workers' compensation coverage under KRS 342.650(3). Hence, we affirm.
ALL CONCUR.