BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G209944 WESLEY L. HARRIS, EMPLOYEE JOHN YOUNG COMPETITIVE PAVING, UNINSURED EMPLOYER CLAIMANT RESPONDENT OPINION FILED JANUARY 13, 2015 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Texarkana, Miller County, Arkansas. The claimant was represented by HONORABLE JOHN S. DELK, II, Attorney at Law, Texarkana, Texas. The respondent was represented by HONORABLE WILLIAM G. BULLOCK, SR., Attorney at Law, Texarkana, Texas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on November 6, 2014, in Texarkana, Arkansas. A Prehearing Order was entered in this case on April 22, 2014. There were no stipulations submitted by the parties in the Prehearing Order or during the course of the hearing. By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: Claimant: 1. Whether or not the Arkansas Workers Compensation Commission has jurisdiction over this claim. 2. Whether or not an employer-employee relationship existed between the claimant and respondent on the date of the incident, that date being February 16, 2012. 3. Whether or not claimant sustained a compensable injury (including but not limited to his back and shoulder) under the Arkansas Workers Compensation Act on February 16, 2012.
2 4. Whether or not the treatments the claimant received on and after the date of the incident were reasonable, necessary and casually related to a compensable injury under the Arkansas Workers Compensation Act on February 16, 2012. 5. Whether or not the injuries sustained by the claimant on February 16, 2012, caused a level of disability that caused the claimant to not be able to earn wages due to a compensable injury within the contemplation of the Arkansas Workers Compensation Act either on the date of the incident or as a direct result thereof. The claimant seeks temporary disability compensation from February 16, 2012, to a date yet to be determined. 6. Whether or not the respondent was required to carry workers compensation insurance under the Arkansas Workers Compensation Act. Respondent: 1. Whether or not claimant can discharge his burden of proving by a preponderance of the evidence that the Arkansas Workers Compensation Commission has jurisdiction over this claim. Texas instead of Arkansas should have jurisdiction over any alleged claim, and the respondent did not have the requisite number of employees to be covered under the Arkansas Workers Compensation Law. See Ark. Code Ann. 11-9-102(11). 2. Whether or not claimant can discharge his burden of proving by a preponderance of the evidence that an employer-employee relationship within the contemplation and coverage of the Arkansas Workers Compensation Act existed between claimant and respondent on February 16, 2012. 3. Whether or not claimant can discharge his burden of proving by a preponderance of the evidence that claimant sustained a compensable injury within the contemplation of the Arkansas Workers Compensation Act on February 16, 2012. 4. Whether or not claimant can discharge his burden of proving by a preponderance of the evidence that the treatments claimant received after February 16, 2012, were reasonable, necessary, and causally related to a compensable injury within
3 the contemplation of the Arkansas Workers Compensation Act which occurred on February 16, 2012. 5. Whether or not claimant can discharge his burden of proving by a preponderance of the evidence that any period or level of disability to earn wages beyond that which already existed prior to February 16, 2012, [a] exists, and [b] if so, was proximately caused by a compensable injury within the contemplation of the Arkansas Workers Compensation Act and which occurred on February 16, 2012, or as a natural and probably consequence thereof. 6. Whether or not respondent was required to carry workers compensation insurance under the Arkansas Workers Compensation Act. 7. Application of casual employment exclusion under Ark. Code Ann. 11-9-102(9)(A). The record consists of the November 6, 2014, hearing transcript and the exhibits contained therein. 1 FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. This claim arose out of the claimant s involvement in a motor vehicle accident that occurred on February 16, 2012. 2. The motor vehicle accident occurred in Wood County, Texas. 3. The claimant was a Texas resident on February 16, 2012. 4. The claimant sought medical treatment and follow up treatment after the accident in Texas medical facilities. 5. At the time of the accident, the claimant and the dump truck driver were traveling from a job site 1 The respondent s objection to Mr. Harris testimony on page 9 of the hearing transcript as opinion and nonresponsive is overruled, and Mr. Harris testimony is accepted into the record.
4 in Wood County, Texas, to an asphalt plant in Texas where the dump truck was temporarily kept. 6. The dump truck was owned by John Young for the use of his asphalt paving business. 7. John Young owns a home in Miller County, Arkansas. 8. The dump truck that the claimant was riding in and the trailer that the dump truck was hauling at the time of the accident were both licensed in Texas. 9. The respondent has rebutted the presumption that Arkansas has jurisdiction over this out-of-state injury. Specifically, the record establishes that Arkansas lacks adequate connections to the claimant s injury to accept jurisdiction over this claim, and the record does not establish that the respondent regularly employs three or more employees in the course of business. DISCUSSION The threshold issue presented in this case is whether Mr. Harris alleged injuries sustained in a Texas motor vehicle accident are subject to the jurisdiction of the Arkansas Workers Compensation Commission. Notably, the Arkansas Workers Compensation Law does not identify which extra-state injuries are covered under the Arkansas Law. Patton v. Brown and Root, Inc., 31 Ark. App. 141, 789 S.W.2d 745 (1990). Arkansas Code Annotated section 11-9-707(1) provides a statutory prima facie presumption that the Commission has jurisdiction over any claims filed before the Commission. Before the Commission can assume jurisdiction over the claim, however, (1) there must be a statutory basis for entertaining the claim and (2) the application of the
5 Arkansas Workers' Compensation Act must not violate federal constitutional principles, particularly the full faith and credit clause of the United States Constitution. International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W.2d 488 (1971); McKeag v. Hunt Transportation, Inc., 36 Ark. App. 46, 818 S.W.2d 581 (1991). With regard to the relevant federal constitutional principles, Professor Larson has previously identified six grounds on which jurisdiction has been asserted. 13 Larson, Larson's Workmen's Compensation, 142.01 (2014); Tidwell, supra. Those six grounds are: (1) Place where the injury occurred; (2) Place of making the contract; (3) Place where the employment relation exists or is carried out; (4) Place where the industry is localized; (5) Place where the employee resides; or (6) Place whose statute the parties expressly adopted by contract. The Arkansas Supreme Court has previously cited with approval Professor Larson s conclusion that the state which was the locus of any one of the first three items and perhaps the next two, can constitutionally apply its statute if it wants to, in spite of full faith and credit attacks. Tidwell, supra. With regard to the statutory basis, the current Arkansas Law in relevant part defines employment as Every employment in the state in which three (3) or more employees are regularly employed by the same employer in the course of
6 business... Ark. Code Ann. 11-9-102(11)(A). Even where the Arkansas Workers Compensation Commission might be permitted to accept jurisdiction under purely full faith and credit considerations, the Arkansas Courts have indicated that Arkansas must have a legitimate interest in the injury to accept jurisdiction. See Missouri City Stone, Inc. v. Peters, 257 Ark. 917, 521 S.W.2d 58 (1975) and Robinson v. Ed Williams Construction Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992). In applying these principles, International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W.2d 488 (1971) involved an injury in Texas to an Arkansas resident working for an Arkansas employer. In deciding that the Arkansas Workers Compensation Act applied and that the Arkansas Workers Compensation Commission had jurisdiction, the Arkansas Supreme Court concluded that: We have no hesitation in holding that where the contract of employment is entered into in this state between an Arkansas resident and an employer who is localized as a resident or who maintains an office which exercises general superintendence and control over the employment which is not carried on at a fixed location, the Arkansas Workmen's Compensation Act applies and the Arkansas Workmen's Compensation Commission has jurisdiction, even though the injury occurred in a state in which it was contemplated by the parties that the employment would be entirely performed. The Court in Tidwell noted this state s interest in (1) the welfare of its residents, (2) minimizing the likelihood of Arkansas residents becoming public charges or the objects
7 of local charity, (3) having a procedure available for a remedy readily available to Arkansas residents, and (4) securing compensation to physicians and hospitals in Arkansas which might not otherwise be available to a claimant. However, the Arkansas Courts have concluded that not all injuries that occur within this State, and not all injuries to Arkansas residents that occur outside this State, are automatically subject to the Arkansas Workers Compensation Law or subject to the jurisdiction of the Arkansas Workers Compensation Commission. For example, in Patton v. Brown and Root, Inc., 31 Ark. App. 141, 789 S.W.2d 745 (1991), Patton was an Arkansas resident who worked as a welder for several different construction companies in various states. After Patton sustained a compensable injury in Louisiana while working for Brown and Root, Patton applied for benefits through the Arkansas Workers Compensation Commission. The Commission found that Patton s status as an Arkansas resident, without more, was not a sufficient basis to invoke the Commission s jurisdiction, and the Arkansas Court of Appeals agreed. Similarly, in McKeag v. Hunt Transportation, Inc., 36 Ark. App. 46, 818 S.W.2d 581 (1991), McKeag was an Arkansas resident when he traveled to Omaha, Nebraska, to begin work for Hunt Transportation. After McKeag sustained a heart attack in Ohio, he filed a claim for benefits with the
8 Arkansas Workers Compensation Commission. The Court in McKeag affirmed the Commission s conclusion that the Arkansas connections with McKeag s employment with Hunt Transportation were lacking under circumstances where (1) McKeag was no longer an Arkansas resident, (2) McKeag s contract of hire was made in Nebraska, not Arkansas, and (3) Hunt Transportation did not have any terminals in Arkansas and did not have a place of business in Arkansas where it exercised any type of control over its employees. The Court agreed with the Commission that the fact that McKeag may have made some deliveries in Arkansas while employed by Hunt Transportation was not in itself a strong enough link with Arkansas to allow the Arkansas Workers Compensation Act to be applied to the case. In Baker v. Frozen Food Express Transp., 336 Ark. 451, 987 S.W.2d 658 (1999), Baker was an over-the-road truck driver from Alabama who became injured at a truck stop in Earle, Arkansas, when her truck was hit by another truck attempting to park. Frozen Food Express Transport was a Texas company. Baker s truck was towed back to Texas, and Baker received benefits through an employee benefit plan. When Baker filed a claim for benefits with the Arkansas Workers Compensation Commission, the Commission found that, even though Baker s injury occurred in Arkansas, the respondent-employer had not engaged in sufficient activity in the State of Arkansas for this state to regulate the
9 actual enterprise of the company. In affirming the Commission s finding that the employer had insufficient links to Arkansas, the Court found that such links were not provided by evidence that (1) Baker thought she was making a delivery in Arkansas; or by the fact that (2) the trucking company had trucks on the road in Arkansas, a designated fuel stop in West Memphis, and a drop yard without supervisory personnel in Arkansas. The evidence in the present case consists solely of (1) Mr. Harris self-serving testimony, (2) Mr. Young s selfserving testimony, (3) several medical reports from Texas, and (4) a Texas police report regarding the motor vehicle accident in Texas. Not surprisingly, the mostly uncorroborated testimony of the two opposing parties is largely contradictory, and this examiner has not found the testimony of either witness particularly trustworthy under the circumstances. By way of background, a few facts are apparently not in dispute. For example, there appears to be no dispute that Wesley Harris was receiving some type of disability benefits through the State of Texas (and/or the Federal Social Security Administration) when he went looking for work in late 2011. (T. 6, 41) There appears to be no dispute that John Young owns one home in Miller County, Arkansas, and another home near Springfield, Missouri. (T. 99, 100) John Young is the sole
10 proprietor of an asphalt paving business. (T. 109) Mr. Young has been in the asphalt paving business for approximately 25 years. (T. 81) Mr. Harris described Mr. Young s business as primarily laying blacktop driveways. (T. 7, 75-76) There appears to be no dispute that Mr. Young s equipment for the business includes at least one dump truck for the asphalt material, a trailer that attaches to the dump truck, a paver and a roller which can be transported on the trailer. (T. 99, 111; C. Exh. 1 p. 2) Mr. Young testified that he keeps a log book of his jobs and how much he pays for labor. (T. 97) However, neither party offered any payment logs or any other types of business or tax records into evidence. Likewise, Mr. Harris testified that the government has a limit on how much money that he can make and keep his disability benefits, and that he reports his income to the Social Security Administration. (T. 42) However, neither party offered any Social Security Administration records, tax records, or any other documentation into evidence to help this examiner determine the actual amount of Mr. Harris income derived from Mr. Young in late 2011 and early 2012. This examiner also notes that the $100 to $150 per day in cash that Mr. Harris testified that he was paid by Mr. Young five or six days per week over the course of several months of work is not at all consistent with Mr. Harris testimony about having a $1,000.00 income limit imposed by the Social Security
11 Administration. (T. 13, 42, 63, 112) I also note that Mr. Harris s 2014 hearing testimony that Mr. Young paid Mr. Harris $100 to $150 per day greatly exceeds Mr. Harris s prehearing contention that Mr. Young paid him $50 to $100 per day. (Comm. Exh. 1 p. 3) With regard to other inconsistencies related to Mr. Harris testimony, I note that Mr. Harris testimony that he worked for Mr. Young in Ohio during October of 2011 is entirely inconsistent with medical evidence that Mr. Harris was still in Arkansas and treated at the Christus St. Michael Senior Health Center in Texarkana, Texas, on October 31, 2011. (T. 31, R. Exh. 1 p. 13) To the extent that Mr. Harris testified in 2014 that he did not have any neck issues prior to the motor vehicle accident in February of 2012, and that his lingering neck injury came from that accident, I note that a medical report from April of 2011 indicates that Dr. Contreras at that time already wanted to perform neck surgery. (T. 33, 34; R. Exh. 1 p. 5) To the extent that Mr. Harris testified in 2014 that he believes he lost his CDL in March or April of 2012, I note that this recollection is clearly inconsistent with Mr. Harris s subsequent testimony that he lost his CDL before he traveled to Ohio to work. (T. 44) Contrary to Mr. Harris testimony that Mr. Young s truck in the accident was registered in Miller County, Arkansas, the police report in evidence corroborates Mr. Young s testimony that the truck
12 was licensed in Texas, not Arkansas. (C. Exh. 1 p. 1) In fact, Mr. Harris at one point conceded at the 2014 hearing that I don t have a real good memory. (T. 51) In any event, during whatever period that Mr. Harris and Mr. Young worked together in approximately late 2011 and early 2012, there is apparently no dispute that Mr. Young solicited sales, a driveway was laid, and then Mr. Young collected a check when the driveway was paved. (T. 12, 88, 107) According to Mr. Harris, Mr. Young cashed the check and Mr. Young paid Mr. Harris in cash usually at the conclusion of the paving job. (T. 14, 19) There is no dispute that Mr. Harris initially traveled to Ohio to work with Mr. Young. (T. 7) The two worked in Ohio for a short period, then left Ohio to work for a short period in the vicinity of Springfield, where Mr. Young owned a home, then traveled back to Texarkana, where Mr. Young owned another home. (T. 7, 10) Mr. Young paid for Mr. Harris bus ticket to Ohio, and for his hotel rooms and meals in Ohio and Springfield. (T. 7, 13, 86, 95-96) As discussed above, Mr. Harris testified that he worked five or six days per week and that Mr. Young paid him $100 to $150 per day. (T. 13, 63) Conversely, Mr. Young testified that he would have paid Mr. Harris $100 to $150 if Mr. Harris had in fact had a CDL license to drive the truck when he came to Ohio, but when it turned out that Mr. Harris no longer had that license, Mr. Young paid Mr. Harris only $25
13 - $50 per day for the few days that they actually worked together. (T. 85) According to Mr. Young, Mr. Harris might have worked three times over two and one-half weeks in Ohio and a couple of days over a three week period in Springfield. (T. 86, 87) As to precisely how the operation worked, Mr. Harris testified that they would load the truck with hot mix from an asphalt plant as soon as the plant opens, park the dump truck while they went door-to-door to sell the blacktop, then return for the truck loaded with asphalt in order to lay the driveway. (T. 11-12) However, Mr. Young testified that he would leave the truck parked at the hotel, and that it might take two or three days to get a job/sale. (T. 107) The two witnesses also disagreed completely on the degree and location of their work together once they arrived back in Texarkana. For his part, Mr. Harris testified that he was living in his brother-in-law s house in Liberty Eylau, Texas, when they got back. (T. 15) At one point Mr. Harris testified regarding the return from Springfield We d come down through Arkansas and we d just work our way back to Texarkana... (T. 14) However, shortly afterward Mr. Harris testified that when they left Springfield they came directly back to Texarkana. (T. 15) Mr. Harris testified at various points that the two were in Arkansas for maybe one month, and that during that time, Mr. Harris worked for Mr. Young around Mr. Young s
14 house and on some jobs around Nashville, Arkansas; around Nashville and Mineral Springs; and near Fouke, Arkansas. (T. 14, 15, 16) For his part, Mr. Young testified that Mr. Harris never worked for Mr. Young in Fouke and had only worked for Mr. Young in Arkansas on only one day. (T. 92-93) Mr. Young testified that 80% of his business is in Texas, 5% in Arkansas, and a small portion is in Missouri. (T. 83) As far as this examiner can discern, Mr. Harris has presented no evidence of any type to corroborate his self-serving testimony that he worked for John Young Competitive Paving on various occasions at various job sites in Arkansas, including at Mr. Young s home. I find on this record that the respondent, John Young Competitive Paving, has established sufficient grounds to rebut the presumption that Arkansas should have jurisdiction over this claim. Although very few facts are not in dispute, there appears to be no dispute that the accident on February 16, 2012, occurred in Wood County, Texas, at a time when Mr. Young and Mr. Dansby were traveling from a Texas job site to a Texas asphalt plant. (T. 24, 89-91; Cl. Exh. 1 p. 1) Mr. Harris testimony to the contrary notwithstanding, both the dump truck that Mr. Harris was riding in and the trailer being towed were both registered with Texas license plates. (Cl. Exh. 1 p. 1) All parties agree that Mr. Harris was living in Texas and all of the medical treatment that
15 Mr. Harris received between February and December of 2012 was from providers in Texas. (Cl. Ex. 1 p. 4-50) In addition, there is no evidence indicating to this examiner that whatever employment arrangement entered into between Mr. Young and Mr. Harris can be said to have been made in Arkansas under circumstances where Mr. Harris was a resident of Texas; Mr. Harris first telephoned Mr. Young in Ohio, and Mr. Harris then traveled to Ohio to begin working for cash with Mr. Young. While it is true that Mr. Young owned a home in Miller County, I am not persuaded by Mr. Harris uncorroborated self-serving testimony that John s business is run out of his home. (T. 17) There is no dispute that Mr. Young may store dump trucks and paving and sealing equipment on the lot next to his house at least from time to time. (T. 99) However, as discussed above, the Court in Baker v. Frozen Food Express Transp., 336 Ark. 451, 987 S.W.2d 658 (1999), found that a business having a drop yard to store equipment in Arkansas was not itself a sufficient causal link to Arkansas. On this record, Mr. Harris has not offered any credible evidence persuading this examiner that either Mr. Harris work or his pay were in fact supervised from Mr. Young s home in Miller County, Arkansas. For his part, Mr. Young s testimony indicates that Mr. Young was away from home during the work day soliciting pavement jobs in Texas for the
16 business, operating or helping to operate the equipment to complete the job, and then collecting payment. Under circumstances where the employment relationship began outside of Arkansas, the claimant was a Texas resident when the accident occurred, the accident occurred in Texas, the work during the period when Mr. Harris became injured was carried out in Texas, and Mr. Harris sought his medical treatment in Texas, I find consistent with the prior decisions in Patton, McKeag, and Baker, a lack of sufficient connection between the claimant s injury and the State of Arkansas to warrant Arkansas jurisdiction over this claim. In addition, I also find a complete lack of credible evidence in the record from which to conclude that John Young Competitive Paving regularly employed three or more employees in the course of business. For his part, Mr. Young testified that he has never had anyone make over $600.00 and that he did not send out any form 1099s the previous year because he did not have any employees. (T. 97-98) For his part, Mr. Harris testified that he was paid more than $600.00. (T. 113) Again, however, neither witness chose to offer any corroborating documentation or any explanation why no corroborating documentation was offered. For his part, Mr. Harris acknowledged at the hearing that he does not have any record or recollection as to which days he worked in October, November, December, January, or February (i.e., during the time that he now contends that he worked
17 essentially full time for John Young in Ohio, Missouri, Arkansas and Texas). (T. 63-64) Furthermore, even if this examiner could somehow conclude from the record that Mr. Young regularly employed Mr. Harris in the course of business, there is certainly no indication that John Young Competitive Paving required, much less employed, the statutorily required third person (besides Mr. Young and Mr. Harris) over any particular period of time in 2011 and/or 2012. In reaching this conclusion, I have considered that the Arkansas Supreme Court previously indicated that the phrase "regularly employs" is not synonymous with "constancy." Wallace v. Wells, 221 Ark. 750, 255 S.W.2d 970 (1953); Aerial Crop Care, Inc. v. Landry, 235 Ark. 406, 306 S.W.2d 185 (1962). Instead, it is sufficient if the demands of the business are such that the requisite number of workers are regularly employed, although some or all of the workers may be employed only periodically. In this regard, the Arkansas Supreme Court in Wallace quoted with approval the following language from Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626: The word regularly' is not synonymous with constancy.' There are businesses of importance which employ numbers of men regularly, who employ none of them continuously. And a number of businesses, as this, will require a large number of employees, nearly all or a large number of whom are employees only periodically, for the reason that the needs of the business require their services only at intervals or periods, whenever
18 the business is in active operation. On this record, I can conclude unequivocally from the police report that on February 16, 2012, John Young Competitive Paving engaged at least three employees on the date of the accident: John Young, Wesley Harris, and Johnny Ray Dansby (C. Exh. 1 p. 1). However, neither the testimony of Mr. Young or Mr. Harris indicates that the business by either necessity or routine practice regularly employed three people. As far as this examiner could determine from questioning Mr. Young, Mr. Young is capable of operating the business himself with only one other person - someone to drive the dump truck. (T. 107) Mr. Harris likewise confirmed that Mr. Young both sells and lays down the asphalt. (T. 75) Mr. Young intended to hire Mr. Harris as a driver, and Mr. Harris testified that he in fact drove some for Mr. Young even without his CDL. (T. 7) Under these circumstances, where neither party offered any tax records, work logs, or wage records indicating how much the business operated or who worked there and when, where neither Mr. Harris or Mr. Young testified that the business regularly employed three people to operate, and absent any evidence that the business by necessity required a third person to operate, I find that it would require sheer speculation and conjecture for this examiner to find that this record establishes that John Young Competitive Paving regularly employed three people.
19 Because I find that Mr. Harris has failed to establish that the Arkansas Workers Compensation Commission has jurisdiction over his injury, I find that Mr. Harris claim for benefits under the Arkansas Workers Compensation Law must be denied in it entirety. ORDER For the reasons discussed herein, this claim must be, and hereby is, respectfully denied. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge