Gogle v. Hancock, NO. 2011-CA-001143-WC (Ky. App. 2011) (Designated to be published): Public policy does not mandate that a specific “nature of the work” test be applied in determining whether a worker is an employee versus an independent contractor, as long as the factors in Ratliff v. Redmon and its progeny are followed.
In Gogel v. Hancock, a Court of Appeals decision designated to be published, the Court of Appeals addressed an ALJ’s finding that a claimant was an independent contractor, not an employee, and therefore was not covered under KRS Chapter 342.
Gogel was an exercise rider for Hancock and was injured when a horse he was exercising rolled on to her side, fracturing Gogel’s left medial femoral condyle.
The ALJ And the Kentucky Workers’ Compensation Board (Board) found that Gogle’s injury was not compensable as he did not qualify as an employee under the Act and relevant case law. Specifically, the ALJ found:
Hancock, the UEF and Plaintiff all agree that the services provided by Plaintiff to Hancock were part of Hancock’s regular business and Hancock provided most of the instrumentalities and tools for the work. However, I am convinced that the extent of control Hancock exercised over the details of Plaintiff’s services were minimal, Plaintiff admittedly was engaged in (and was licensed in) a distinct occupation or business (as he claimed on his income tax returns) and possessed and displayed significant professional skills, of which he was obviously (and deservedly) proud. I am further convinced that the exercise riding services provided by Plaintiff to Hancock were for services provided by a specialist without significant supervision and work that required a significant degree of skill. Plaintiff’s pay was based on the number of horses he exercised, in other words, by the job performed. Finally, I am convinced, based on Plaintiff’s freedom to go to and leave work when and as he pleased and his method of reporting his income as a business indicates his intent to be an independent contractor, not an employee.
Gogel appealed to the Board, arguing that the ALJ’s focus on the amount of control Hancock exercised over the details of his work activity was misplaced. Gogel argued the ALJ should have focused on the nature of the work performed, which would have led to a finding of an employment relationship.
The Court of Appeals affirmed the ALJ and the WCB based on a determination the evidence did not compel a contrary result (although it did acknowledge there was evidence which would have supported a finding of an employment relationship), but it nonetheless paused to address Gogel’s argument that public policy mandated he be covered under KRS Chapter 342 through a “nature of the work” test versus the “control test.” The Court dismissed this argument by addressing precedent set forth in Ratliff v. Redmon, 396 S.W.2d 320, 324-25 (Ky. 1965) and Chambers v. Wooten’s IGA Foodliner, 436 S.W.2d 265, 266 (Ky. 1969) concluding the holdings in those decisions were not at odds with the nature of the work performed test proposed by Gogel.
COMMENT: The independent contractor issue arises frequently from alleged work injuries arising in the horse industry. The plight of the Kentucky horse industry worker was studied in detail in a previous OUCH! post, Kentucky’s Thoroughbred Industry and Workers’ Compensation: “Out of the Money”