DANIEL J. LOVESTRAND, Employee, v. JAK TREES, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS CO., Employer-Insurer, and JOHN KOPPI and JAK TREES, INC., UNINSURED, Employer/Appellant, and JAK TRANSPORT, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS CO., Employer-Insurer, and SPECIAL COMP. FUND.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 1, 2006
EMPLOYMENT RELATIONSHIP - JOINT EMPLOYERS. Substantial evidence supports the compensation judge=s finding that the employee was employed by JAK Trees, Inc., and that JAK Trees and JAK Transport, Inc., were not joint employers, at the time of the employee=s work-related injury.
INSURANCE - COVERAGE. Where the evidence regarding whether workers= compensation insurance coverage for JAK Trees, Inc., was reinstated and whether JAK Trees was insured for workers= compensation purposes on the date of the employee=s injury is confusing and incomplete, we vacate the compensation judge=s finding and remand to the compensation judge to take additional evidence and make factual findings on this issue.
Affirmed in part and vacated and remanded in part.
Determined by Johnson, C.J., Pederson, J., and Wilson, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Jason Schmickle, Hansen, Dordell, Bradt, Odlaug & Bradt, Minneapolis, MN for the Respondents JAK Trees/MARP-Berkley. James Michael Gallagher, Minneapolis, MN, for the Appellant. Patrick E. Mahoney, Mahoney, Dougherty and Mahoney, for the Respondents JAK Transport/MARP-Berkley. Thaddeus V. Jude for the Special Compensation Fund.
THOMAS L. JOHNSON, Judge
The uninsured employer, John Koppi/JAK Trees, Inc., appeals from the compensation judge=s findings that JAK Trees was the sole employer of the employee on the date of injury, and that JAK Trees was then uninsured for workers= compensation benefits. We affirm in part and vacate and remand in part.
John Koppi is the owner of three corporations: JAK Trees, Inc., JAK Transport, Inc., and JAK Roofing and Siding, Inc. JAK Trees is a tree service company that provides tree trimming and tree removal service. JAK Transport is a hauling company that does snow removal and general hauling. JAK Roofing and Siding, is a general contracting company that also does roofing work. Mr. Koppi maintained separate records for each corporation including separate accounts and payroll records. JAK Trees was insured by the Minnesota Assigned Risk Plan (MARP) under a policy issued on July 21, 2000, for the period July 20, 2000 through July 17, 2001. JAK Transport and JAK Roofing were insured by separate policies issued by MARP.
The premium for the workers= compensation insurance policy issued by MARP to JAK Trees was $9,346 of which $4,738 was paid leaving a premium due of $4,608. MARP sent JAK Trees a statement of premium containing an installment schedule for the unpaid balance of the premium. Under the schedule, $1,536 was due on October 22, 2000, January 22, 2001, and April 22, 2001. JAK Trees did not make the payment due on October 22, 2000. On November 1, 2000, Berkley Risk Administrators Company (Berkley), the workers= compensation insurance administrator for MARP, sent a second request to JAK Trees seeking payment on the premium due on October 22, 2000. JAK Trees was advised the policy would be reinstated if the $1,536 premium was paid prior to December 27, 2000. The premium was not paid and JAK Trees= workers= compensation policy was cancelled effective December 27, 2000.
Daniel J. Lovestrand, the employee, was an experienced tree trimmer and achieved the status of a journeymen trimmer while working for Northern States Power Company. In approximately 1995, the employee left NSP and worked as a tree trimmer, including working as a sub-contractor for Mr. Koppi. In 2000, Mr. Koppi hired the employee as a tree trimmer. In addition to his salary, the employee received a cell phone and the use of a company truck owned by JAK Transport. In addition to trimming trees, the employee would drive JAK Transport trucks and clean up debris, clear snow at the airport, do truck maintenance and operate a loader crane. During the course of his employment, Mr. Koppi testified the employee worked for both JAK Trees and JAK Transport.
On April 4, 2001, the employee was cutting down and removing a tree at a private residence. The employee and a four man crew were to cut down the tree, cut it into pieces, load the pieces into a truck and haul away the debris. In the process of felling the tree, it struck the employee and he was injured. A first report of injury was prepared listing JAK Trees, Inc., as the employer.
The employee made a workers= compensation claim against JAK Trees and its insurer. JAK Trees and MARP paid benefits pursuant to a temporary order. Subsequently, MARP moved to dismiss the temporary order, asserting the policy had lapsed and there was no valid coverage under the JAK Trees policy on the date of injury. The employee then petitioned for a temporary order directing the Special Compensation Fund to pay benefits. An amended temporary order ordering the Special Compensation Fund to pay benefits was served and filed on September 25, 2001.
The parties eventually entered into a full, final and complete settlement with the employee, with the Special Compensation Fund as paying agent for ongoing medical benefits. The terms of the settlement specified the three entities involved - - JAK Trees, JAK Transport and the Special Compensation Fund - - would retain all rights and defenses including the right to seek reimbursement of the benefits that each contributed to the settlement or otherwise paid. The settlement was approved by a compensation judge and an Award on Stipulation was served and filed on February 12, 2003.
Each settling party filed a Petition for Contribution and/or Reimbursement against the other parties. These petitions were consolidated and came on for hearing before a compensation judge at the Office of Administrative Hearings on April 5, 2005. By Findings and Order, served and filed on May 16, 2005, Judge Eckersen found JAK Trees was the sole employer of the employee on the date of his injury and that JAK Trees was then uninsured for workers= compensation benefits. The judge ordered payment by JAK Trees to the petitioning parties but, in the event JAK Trees did not make payment, ordered the Special Compensation Fund to pay the benefits awarded with the right to seek reimbursement from Mr. Koppi and/or JAK Trees. John Koppi and JAK Trees, Uninsured, appeal from the findings and order.
1. Joint Employment
The compensation judge found the employee was an employee of JAK Trees when he was injured and found JAK Trees and JAK Transport were not joint employers. On appeal, the appellant argues the employee, on the date of his injury, was employed by both JAK Trees and JAK Transport. Since JAK Transport was insured, the appellant asserts liability for the payment of benefits to the employee rests with the insured joint employer. Accordingly, the appellant contends the compensation judge erred in not ordering JAK Transport and its insurer to pay benefits to the employee. We disagree.
The concepts of joint employment and loaned employee have in common an employee who is providing services for more than one employer at the time of injury. The employee may be under the simultaneous control of both employers or the situation may be one in which one employer is a general employer who hires the employee and provides the employee to a special employer for whom the employee provides services. Bilotta v. Labor Pool of St. Paul, Inc., 321 N.W.2d 888, 35 W.C.D. 31 (Minn. 1982). If one of the employers is uninsured, benefits are paid by the other employer=s insurer. Benner v. Essential Nursing Services, Inc., 63 W.C.D. 58 (W.C.C.A. 2002).
Mr. Koppi testified the employee did work for both JAK Trees and JAK Transport, sometimes on the same day, and was paid by both companies. The employee was furnished a vehicle owned by JAK Transport for both business and personal use. A front end loader apparently owned by JAK Transport was being used by the employee at the time of his injury. This evidence, as the appellant argues, might support a conclusion that the employee was jointly employed by JAK Trees and JAK Transport. On appeal, however, the question is not whether the evidence may support a different result but whether the judge=s decision is supported by substantial evidence. Minn. Stat. ' 176.421, subd. 3.
Before being hired by John Koppi, the employee was a tree trimmer for NSP. The employee testified he went to work for Mr. Koppi because his company needed experienced tree trimmers to perform work for the City of Minneapolis. The employee admitted he did other work such as cleaning up debris, truck maintenance and clearing snow, but stated he was primarily hired for his expertise as a tree trimmer and generally performed the other work in the winter time. (MARP Ex. 7.) There is no dispute the employee was felling a tree when he was injured and this is the type of work done by JAK Trees. Mr. Koppi testified the employee was probably being paid by JAK Trees for the work performed on the date of the injury. This evidence provides substantial support for the compensation judge=s finding that the employee was in the employ of JAK Trees, Inc., at the time of his injury. Accordingly, the finding must be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
2. Insurance Coverage
John Koppi/JAK Trees, Uninsured, also appeal the compensation judge=s finding that the corporation was uninsured on the date of the employee=s injury. They argue there is evidence of record to establish the workers= compensation insurance policy covering JAK Trees, Inc., was reinstated after the employee=s injury so the corporation was properly insured. We find the evidence on this issue inconclusive and unsatisfactory, and conclude the finding should be vacated and the case remanded to the compensation judge for additional testimony and factual findings.
It is clear JAK Trees did not make the insurance payment due on October 22, 2000, and the workers= compensation policy was cancelled effective December 27, 2000. However, by letter dated February 20, 2001, an attorney provided to JAK Trees a notice that JAK Trees owed Wausau Insurance Company $9,376. (SCF Ex. C.) On or about May 14, 2001, JAK Trees paid a premium of $9,376 to MARP. The workers= compensation policies for JAK Trees, Transport and Roofing were then combined into one policy. Mr. Koppi testified he did not receive a credit or reduction in premium for any period when MARP claims JAK Trees was uninsured. By letter dated May 15, 2001, James R. Gilmar of Commercial Collector=s, Inc., advised Mrs. John Koppi that it had received a check for $9,376 in settlement of a suit filed on behalf of Wausau and the Assigned Risk Plan of Minnesota against JAK Trees. (SCF Ex. D.) On June 4, 2001, a Certificate of Insurance, a City of Minneapolis form, was prepared by an unknown person stating that JAK Trees, Inc., had workers= compensation insurance with Berkley Risk Administrator from June 22, 2000, through June 22, 2001. (JAK Ex. B.)
Ms. Tammy Rosati was the assistant vice president of policy services for MARP. She testified the JAK Trees Workers= Compensation Policy was cancelled effective December 27, 2000. She further testified that JAK Trees did not have a workers= compensation insurance policy with MARP on April 4, 2001. However, Ms. Rosati testified in May 2001 the policies for JAK Trees, Transport and Roofing were combined into one policy. Ms. Rosati stated the premiums paid were moved to the combined policy. Finally, Ms. Rosati testified that MARP was not the underwriter for the JAK Trees policy. The underwriting was done by Minnesota Workers= Compensation Insurers Association, Inc.
While the JAK Trees policy was cancelled effective December 27, 2000, there is evidence of record which suggests the policy was retroactively reinstated. Under Minn. Stat. ' 176.421, subd. 6(5), this court may remand a case or make some other appropriate order. If the evidence in a proceeding is neither conclusive nor satisfactory a remand may be appropriate. Doble v. Jesco, Inc., 514 N.W.2d 572, 50 W.C.D. 276 (Minn. 1994). This is such a case. Further, the financial consequences to an uninsured employer under Minn. Stat. ' 176.183 for reimbursement and penalties is significant. Accordingly, the finding is vacated and the case remanded to the compensation judge to take additional evidence and make factual findings on the issue of whether JAK Trees, Inc., was insured on April 4, 2001.
 This policy was not introduced into evidence so the policy period is unknown.