Francisco Vargas-Velasquez appeals from the compensation judge’s conclusion that he was not an employee of Hernandez Expert Roofing, Inc., and was not covered by that company’s workers’ compensation insurance policy on the date of his work injuries.  We affirm.

On September 21, 2009, Francisco Vargas-Velasquez, who speaks and understands Spanish but very little English, sustained work-related injuries to his left ankle, right ankle, and low back when he fell from a ladder in the course of his work as a roofer with Hernandez Expert Roofing, Inc. [Expert Roofing].  Mr. Vargas-Velasquez [the petitioner] was twenty-nine years old on that date and was earning a broadly varying wage of at least $750 per week.^[1]  Subsequent to his injuries, the petitioner received surgery on both of his ankles and had to wear a back brace for three months, all of his medical treatment, from September 21, 2009, through March 2, 2010, being by stipulation reasonable and necessary to cure or relieve the effects of his injuries.  On November 6, 2009, in the course of his treatment, the petitioner filed a claim petition, alleging entitlement to workers’ compensation benefits consequent to his injuries on September 21, 2009.  Minnesota Assigned Risk Plan/Berkley Risk Administrators Company, the insurer on the claim, denied coverage on grounds that the petitioner was an officer of the corporation and was not covered.

The matter initially came on for hearing on May 14, 2010, and then was continued on June 3, 2010.  Issues at hearing centered primarily around the following: (1) whether, on the date of his injuries, the petitioner was an employee of Expert Roofing or, instead, was an executive officer of that company, for purposes of Minnesota Statutes section 176.011, subd. 2a; (2) whether the petitioner is excluded from coverage for his injuries under terms of Expert Roofing’s workers’ compensation insurance policy; and (3) whether, if he was an executive officer of Expert Roofing, the petitioner was exempt from mandatory workers’ compensation coverage or instead had provided written notice to the insurer of an election of coverage, pursuant to Minnesota Statutes section 176.041.

Evidence admitted at hearing included a copy of the Articles of Incorporation of Hernandez Expert Roofing, Inc., dated January 27, 2009.  The Articles of Incorporation indicated at paragraph 2 that “[t]he name of [the corporation’s] registered agent . . . is Diego Alberto Hernandez Aparicio” and at paragraph 4 that the corporation would have authority to issue 1000 shares of common stock with no par value - - 250 shares to Diego A Hernandez Aparicio, identified as the corporation’s president, 250 shares to David Hernandez Bustamante, identified as the corporation’s treasurer, and 250 shares each to “Francisco Vargas Velazquez” and Alexander Luengas, identified as officers in the corporation.  The document was signed by each of those four persons as “the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Minnesota,” with the petitioner’s signature block reading “Francisco Hernandez Velazquez” rather than “Francisco Vargas Velazquez.”^[2]  The document was notarized by one Esperanza Zaldivar-Marquez, a Minnesota Notary Public.  A Certificate of Incorporation was issued by the Minnesota Secretary of State on that same date, on January 27, 2009.

Evidence admitted at hearing also included an Invoice from V J Insurance Agency, Inc., dated January 23, 2009, issued to Hernandez Expert Roofing, Inc., for “Full payment - Work Comp” in the amount of $731.00.   Also submitted into evidence was a copy of an Online Application for Workers’ Compensation Insurance dated January 26, 2009, with coverage desired effective January 27, 2009, with the Minnesota Workers’ Compensation Assigned Risk Plan.  The named employer on that application was “Hernandez Expert Roofing, Inc,” the application identifying “Diego A Hernandez-Aparicio” as president of the corporation, with Francisco Vargas-Valazquez, David Hernandez-Bustamante, and Alexander Luengas each identified as “Officer-Board of Directors.”  On that same application, Ms. Zaldivar-Marquez identified herself as an agent of V J Insurance Agency, Inc., and indicated that she would provide a copy of the application to her client.  Also submitted into evidence was a letter from the Minnesota Workers’ Compensation Insurers Association, Inc., to Hernandez Expert Roofing, Inc., dated January 27, 2009, and carbon copied to Ms. Zaldivar-Marquez at V J Insurance Agency, Inc., indicating that it had already received the corporation’s application for insurance and that “[c]overage will become [sic] effective 12:01 a.m. 01/27/09.”  Documentary evidence included also a “Payment Confirmation” from the Minnesota Workers Compensation Assigned Risk Plan, dated January 28, 2009, indicating that it had received $652.00 from V J Insurance as of January 28, 2009, for its insurance of Hernandez Expert Roofing, Inc.  Also offered into evidence was a Standard Workers’ Compensation and Employers’ Liability Policy that was mailed to Hernandez Expert Roofing, Inc., on January 30, 2009, accordingly identifying a policy period for coverage from 12:01 a.m. January 27, 2009, to 12:01 a.m. January 27, 2010.

Also introduced into evidence at hearing were certificates of Expert Roofing’s insurance subsequently issued to three companies for whom Expert Roofing apparently laid shingles over the course of 2009 - - Simon Construction, issued May 12, 2009; JA Roofing Experts, Inc., issued July 20, 2009; and Top Refe Construction Roofing, issued November 16, 2009.  All three certificates indicated that the limit of liability for workers’ compensation was “Statutory,” while other “Employers’ Liability” was limited to $100,000 per accident, $100,000 per employee, and $500,000 total.  The certificates issued for Simon Construction and JA Roofing Experts, Inc. - - those issued in May and July of 2009, respectively, prior to the petitioner’s injury - - indicate expressly “Officers Not Covered,” while that issued for Top Refe Construction Roofing in November of 2009, following the petitioner’s injury, expressly identified by name each of the four signers of Expert Roofing’s Articles of Incorporation as an “Officer,” noting under “Election Status” for each of them “Exclude.”

Evidence introduced at hearing also included testimony from both the petitioner and Ms. Zaldivar-Marquez, who identified herself as an independent insurance agent, not formally affiliated with the insurer herein, co-owner of V. J. Insurance Agency, and sole owner of Latin Services, a consulting firm that assists Spanish speaking clients in matters such as tax return preparation and preparation of paperwork for incorporation of a business.  Neither Diego Hernandez nor his son, David Hernandez, was available to testify,^[3] nor, apparently, was Alexander Luengas.

Ms. Zaldivar-Marquez testified in part that, in the course of her business, she normally has two meetings with individuals seeking her assistance in obtaining workers’ compensation insurance and/or incorporation of a business - - a first meeting for gathering and exchanging information and a second meeting for copying personal identification and securing signatures on paperwork.  She initially testified that she could not remember if all four individuals identified as officers on the Articles of Incorporation of Hernandez Expert Roofing, Inc., were at a first organizational meeting, but she subsequently acknowledged that she had testified by deposition that only Diego Hernandez was at that first meeting.  She was sure, however, that all four were present at a second meeting, when she secured identification and signatures from all of them.  She testified that she always spoke Spanish to them and explained to them what the English documents, that they were signing, were saying.  She testified that she did not, at that meeting, actually discuss with them any agreement among them to all be officers, only asked them how they wanted to be organized in that regard, to which they replied, she testified, “They want to be a group, same ownership for everyone.”  Nor did she remember if she was paid by check or cash the $400 for her assistance in preparing the Articles of Incorporation, the $79 agency fee that she charged with regard to the workers’ compensation application, or the $652 insurance premium itself, only that she was paid by “[t]he group.”  Nor did she have any specific memory of meeting the petitioner, nor did she recall any discussion with all four officers about each owning 250 shares, when it was that they came to her about insurance coverage, or whether it was Latin Services or V. J. Insurance Agency to whom they came in that regard.  She testified that she would normally have specifically asked the officers if there were any employees, although she had never sold any workers’ compensation insurance to any company with employees, because it costs more and most of the corporations that she deals with are start-up sole proprietors or small groups who choose to have no employees.  Nor, she testified, has she ever sold any coverage for owners or officers, for the same reason, the cost difference being, she estimated, a minimum of $12,500 per person.  But it remained her standard of practice, she reiterated, as an insurance agent, always to ask companies that come to her for assistance whether or not they have any employees and always to explain to them that any of their listed officers would not have coverage under the policy.

The petitioner himself testified, through an interpreter, in part that he first got involved with Diego Hernandez when the petitioner needed both a job and a place to live and Mr. Hernandez invited him to live with him if the petitioner would go to work with him at roofing.  He testified that Mr. Hernandez subsequently explained to him that the city would allow them to work only if they purchased insurance.  The petitioner testified that he attended only one meeting with an insurance agent or business consultant, that meeting being the one at which all four members of Expert Roofing signed the Articles of Incorporation.  He testified that all of the paperwork was prepared and ready to sign when he came to that meeting and that no one translated the papers to him or even explained to him what they meant.  He testified further that he did not know what it was to be an officer in a corporation, that no one had told him that the papers he signed made him an officer or what his duties would be as an officer.  He testified that Mr. Hernandez required him to “put up some money” “[n]ot for the business, for the insurance,” and that, to that end, $1,200 was deducted from his pay.^[4]  He testified that he did not know that he was supposed to get a share of the profits of Expert Roofing, that there was never a meeting of the corporation’s officers to vote on anything, that Mr. Hernandez made all of the decisions.  He testified also that the person he signed the Expert Roofing Articles of Incorporation in front of was not Ms. Zaldivar-Marquez, that he had not met the latter before the day of the hearing.  He also testified that the photograph over his name and ostensibly of him, on the Permanent Resident Card required of him by the agent prior to notarizing his and the others’ signatures on the Articles of Incorporation,^[5] did not appear to be a photograph of him, that in fact he does not carry and has never been issued a permanent resident card, only a photo ID card from Mexico, titled, as translated by the interpreter at hearing, “electoral institute, electoral federal registry voting card.”^[6]

The petitioner testified further that Diego Hernandez and his son David had moved out of the apartment that he shared with them on November 4 or 5, 2009, ostensibly intending to return but never doing so, leaving the petitioner there in a wheelchair with rent and utility bills to pay.  He testified that Alex Luengas and Diego Hernandez had had a falling out soon after the Articles of Incorporation were signed and that he, the petitioner, never saw Mr. Luengas again after that date.  When asked why he signed the Articles of Incorporation, the petitioner testified that Diego Hernandez had told him “that it was for the insurance so we could continue working,” that a lawyer would be coming out to their house “telling us what benefits it’s going to be for us for insurance,” but that no lawyer ever came out.  On cross-examination, however, the petitioner agreed that he had previously testified by deposition that “there was an agreement on getting a cut of the payout on a project that [he] would do.”  He acknowledged also that at times he would instruct one or two “other workers” in certain aspects of the roofing work but that he was never paid a percentage of any job, only and always $150 or, sometimes on bigger projects, $200, in cash, “[f]or project, for house.”  From this $150 or $200 that he was paid for a job was apparently deducted certain amounts for rent, food, tool rental, and other expenses on a regular basis.  He admitted that he had kept no record of the total amount that he was paid.

By findings and order filed October 1, 2010, the compensation judge concluded in part that the petitioner was an executive officer of, and not an employee of, Expert Roofing on the date of his work injuries.  As an executive officer, the judge concluded, the petitioner was excluded from coverage for those injuries under terms of Expert Roofing’s workers’ compensation insurance policy.  Further, the judge concluded, as an executive officer of that company, the petitioner was exempt from mandatory workers’ compensation coverage on that date and did not provide a written notice to the insurer of any optional election of coverage for himself.  On those findings, the compensation judge denied the petitioner’s claim for temporary total disability and medical benefits, and she denied the intervenors’ claims for payment of medical expenses.  The petitioner appeals.

In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Id.  A decision which rests upon the application of a statute or rule to essentially undisputed facts, on the other hand, generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

The compensation judge found that the petitioner was an executive officer and not an employee of Expert Roofing and, as such, both under terms of the company’s workers’ compensation policy and under statutory provisions of the Minnesota workers’ compensation law, was not entitled to workers’ compensation for the injuries that he  sustained while working on a company project.  The petitioner contends, as a matter of both law and fact, that he was not a stock-owning executive officer of Expert Roofing, arguing that the incorporation of that company was only a fraudulent attempt to circumvent responsibility for the company’s workers.  He contends that the company’s articles of incorporation therefore constitute a void agreement as a matter of law, arguing that the workers’ compensation coverage provided by the insurer was therefore, and also, because the insurance preceded the incorporation by several hours, coverage of an unincorporated entity.

Minnesota Statutes section 176.041, subdivision 1(g), provides that an executive officer of a closely held corporation with less than 22,880 hours of payroll in the preceding year is excluded from mandatory workers’ compensation coverage if that officer owns at least 25% of the stock in the corporation.  See Minn. Stat. § 176.041, subd. 1(g).  Further, Minnesota Statutes section 176.011, subdivision 11, defines “executive officer of a corporation” as “any officer of a corporation elected or appointed in accordance with its charter or bylaws.”  Minn. Stat. § 176.011, subd. 11.  The petitioner contends that, notwithstanding the suggestion in Expert Roofing’s Articles of Incorporation that he was to be issued 250 of the 1000 shares of common stock that the corporation was authorized to issue, there is no evidence that Expert Roofing ever issued any stock or even had any stock to issue.  He argues that he had put no money into the business other than the $1,200 that was deducted from his earnings for, he testified, “insurance, not for the business.”  He argues further, again on his own testimony, that he was never even told that he was an “officer” in the business or that he had any say in its operation or any right to share in its profits, that to his knowledge the business didn’t even have any charter or bylaws.  He argues that Expert Roofing was only the alter ego of Diego Hernandez, its “agent” as evidenced in the Articles of Incorporation, and that the company’s incorporation and organization were drawn up only pursuant to Mr. Hernandez’s instructions, at a meeting that only he, among the four individuals designated in its Articles as “officers,” attended.  We are not persuaded.

The only two witnesses to testify at hearing were the petitioner and Ms. Zaldivar-Marquez.  As the accounts above will attest, the testimony of these two witnesses was not only often mutually inconsistent but also frequently vague and/or internally inconsistent.  The ample testimony of Ms. Zaldivar-Marquez, who was represented by a personal attorney at the hearing, was frequently fraught with memory lapses and apparent contradictions with her own earlier deposition testimony, most often settling only into what was her typical procedure in dealing with clients, rarely focusing on what she actually recalled to have been her procedure in dealing with this particular group of roofers.  The petitioner’s testimony was similarly less than dependable, it coming out only late in that testimony that the individuals at issue were apparently not even using their real names, even the petitioner’s own name varying on different documentation, and even his own identification, as copied in the process of incorporation, being unrecognizable to himself.  In this context, where the credibility of all witnesses is questionable at best, the compensation judge was reasonably left to depend most on the documentary evidence.  In this case, that documentary evidence - - the Articles of Incorporation in particular and also the certificates of workers’ compensation insurance - - clearly identified the petitioner as a stockholding executive officer of the corporation who had not expressly opted for personal insurance coverage as required under the statute.  It is on these facts and the credibility issue implicit in them that the compensation judge concluded that the petitioner was an executive officer of Expert Roofing excluded from workers’ compensation coverage.  Assessment of a witness’s credibility is the unique function of the trier of fact, Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989), citing Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-840, 41 W.C.D. 79, 82 (Minn. 1988).  On this basis, and because it was not unreasonable for the judge to conclude that the petitioner was an executive officer excluded from coverage, we affirm the judge’s conclusion.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

Minnesota Statutes section 176.205, subdivision 1,  provides in pertinent part that “a person who creates or executes any fraudulent scheme, artifice, or device to enable the person to execute work without being responsible to the worker under this chapter, is deemed an ‘employer’ and is subject to the liabilities which this chapter imposes on employers.”  Minn. Stat. § 176.205, subd. 1.  The petitioner contends that, “by representing, falsely, that [the petitioner] and the others were 25% owners and executive directors, [Diego Hernandez] was able to obtain a Certificate of Incorporation on terms that enabled him to employ [the petitioner] and the others without having to be responsible for their work injuries.”  Therefore, he argues, Expert Roofing and its insurer are liable for the petitioner’s work injuries under the statute.  We are not persuaded.

When the issues were presented at hearing, this issue was identified by the compensation judge as “whether the purported incorporation of Hernandez Expert Roofing was a fraudulent attempt to circumvent the workers’ compensation law and specifically, Minnesota Statutes Section 176.021, Subdivision 1,” and the petitioner’s attorney agreed.  No mention was made of Minnesota Statutes section 176.205, subdivision 1, and only section 176.021, subdivision 1, was accordingly identified with this issue in the judge’s list of issues in her Findings and Order.  Section 176.021, subdivision 1, is a general provision imposing liability on employers for work-related injuries to employees, expressly setting the burden of proof on the employee except in cases where the injury is intentionally self-inflicted or where intoxication is the proximate cause.  See Minn. Stat. § 176.021, subd. 1.  The subdivision contains no reference to fraud.  In her Findings and Order, the compensation judge made no express finding on the issue of fraud, but the petitioner has not, either in his post hearing argument to the compensation judge or in his appellate brief before this court, identified any clear elements of fraud, either formal ones or even informal ones.  Nor has he appealed from the fact that the judge did not address the issue either in her findings or in her memorandum.  Diego Hernandez was organizing his corporation as every other one of Ms. Zaldivar-Marquez’s clients had always organized theirs.  We conclude that the petitioner has not borne his burden of proving even that Diego Hernandez intentionally misrepresented any specific fact to the petitioner, and we will not reverse the judge’s decision on this basis.

Minnesota Statutes section 176.021, subdivision 4, provides that “[a]ny agreement by any employee or dependent to take as compensation an amount less than that prescribed by this chapter is void.”  The petitioner contends that the facts of this case “show clearly that [the petitioner] was merely a garden-variety employee,” that, by signing the Articles of Incorporation alleging himself to be an officer and director, “[the petitioner] lost the workers’ compensation coverage that was his right as an employee” and that therefore “the Articles of Incorporation herein were a void agreement under the provisions of Minn. Stat. § 176.021, subd. 4.”  We are not persuaded.  The basic premise of this argument is that the petitioner was a simple employee of Expert Roofing and not one of it corporate officers.  We have already addressed that premise above and have affirmed the compensation judge’s conclusion to the contrary.  Because the premise here is false, the argument under section 176.021, subdivision 4, fails, and we will not reverse on this basis.

On January 23, 2009, V J Insurance Agency, Inc., mailed to Hernandez Expert Roofing, Inc., an invoice for $731.00 for “Work Comp,” presumably after an informational exchange with Diego Hernandez prior to the signing of the Articles of Incorporation on January 27, 2009.  On January 28, 2009, the Minnesota Workers’ Compensation Assigned Risk Plan confirmed receipt of $652.00, and on January 30, 2009, it mailed out its policy of coverage for the corporation, indicating that the policy period was from 12:01 a.m. on January 27, 2009, to 12:01 a.m. 2010.  The petitioner contends that the policy was therefore in effect prior to the incorporation of Expert Roofing and therefore prior to any designation of the petitioner as an executive officer excluded from coverage as an employee under the act.  We find no merit in this argument.  It is clear that as early as January 23, 2009, the corporation’s structure was being contemplated, not just by Diego Hernandez but also by Ms. Zaldivar-Marquez, and it is apparent, in the insurer’s repeated address of documentation to “Hernandez Expert Roofing, Inc.,” that the insurer also contemplated its coverage to be of a corporation, not of an unincorporated entity.  We conclude that the insurance and the incorporation were both part of the same package being prepared by Expert Roofing with the assistance of Ms. Zaldivar-Marquez, and they both were effective on the same day.  We conclude that, in this circumstance at least, the sequence of their effectiveness on that same day is immaterial, and we will not reverse on this basis.

The decision of the compensation judge is affirmed in its entirety.