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Thoreson v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

June 28, 2000

LEONARD L. THORESON Petitioner/Employer
v.
UNINSURED EMPLOYERS' FUND Respondent and RODNEY HINKLE Claimant/Respondent.

          Submitted: April 10, 2000

         Affirmed in nonciteable decision 2002 MT 6

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: Roofing laborer hired to work for contractor on residential job who had smoked marijuana before starting work walked along edge of roof "like tightrope walker" and fell, suffering injuries. Contractor argued laborer was an independent contractor, deliberately jumped, and was not entitled to benefits in any event due to intoxication.

         Held: Independent contractor defense rejected where claimant had not obtained IC exemption and employer retained right to control work. Claimant did not deliberately jump, but his fall did result from his marijuana intoxication. While claimant would ordinarily lose his entitlement to benefits due to his voluntary intoxication (§39-71-407, MCA (1995)), the employer had knowledge of claimant's drug use and failed to attempt to stop same, making claimant entitled to benefits.

         Topics:

Constitutions, Statutes, Regulations and Rules: 39-71-120, MCA (1995). Under 39-71-120, MCA (1995), worker is employee for purposes of the Workers' Compensation Act unless all three statutory criteria are met, including existence of exemption granted under 39-71-401(3). Where worker had not obtained exemption, one criteria is absent and employee status proven for purposes of the workers' compensation act. Court also finds AB test not met where evidence indicates employer retained right to control work of roofer/claimant.
Constitutions, Statutes, Regulations and Rules: 39-71-407, MCA (1995). Based on claimant's smoking the equivalent of three marijuana joints within a couple of hours of going on a roof to work, and his bizarre, reckless conduct of walking along the very edge of the roof like a tightrope walker, claimant was in fact intoxicated and the intoxication was a leading cause of his accident and injury. However, employer did have knowledge of claimant's drug use and failed to attempt to stop same, making claimant entitled to benefits.
Defenses: Intoxication. Based on claimant's smoking the equivalent of three marijuana joints within a couple of hours of going on a roof to work, and his bizarre, reckless conduct of walking along the very edge of the roof like a tightrope walker, claimant was in fact intoxicated and the intoxication was a leading cause of his accident and injury within 39-71-407, MCA (1995). However, employer did have knowledge of claimant's drug use and failed to attempt to stop same, making claimant entitled to benefits.
Independent Contractor: Independent Contractor Exemption. Under 39-71-120, MCA (1995), worker is employee for purposes of the Workers' Compensation Act unless all three statutory criteria are met, including existence of exemption granted under 39-71-401(3). Where worker had not obtained exemption, one criteria is absent and employee status proven for purposes of the workers' compensation act. Court also finds AB test not met where evidence indicates employer retained right to control work of roofer/claimant.
Independent Contractor: Elements. Under 39-71-120, MCA (1995), worker is employee for purposes of the Workers' Compensation Act unless all three statutory criteria are met, including existence of exemption granted under 39-71-401(3). Where worker had not obtained exemption, one criteria is absent and employee status proven for purposes of the workers' compensation act. Court also finds AB test not met where evidence indicates employer retained right to control work of roofer/claimant.
Injury: Causation. Based on claimant's smoking the equivalent of three marijuana joints within a couple of hours of going on a roof to work, and his bizarre, reckless conduct of walking along the very edge of the roof like a tightrope walker, claimant was in fact intoxicated and the intoxication was a leading cause of his accident and injury within section 39-71-407, MCA (1995). However, employer did have knowledge of claimant's drug use and failed to attempt to stop same, making claimant entitled to benefits.

         ¶1 The trial in this matter was held on March 27, 2000, in Great Falls, Montana. Petitioner, Leonard L. Thoreson, is the putative employer of respondent, Rodney Hinkle, and will be referred to as "petitioner" or "Leonard." He was present and represented by Mr. Robert M. Kampfer. Respondent, Uninsured Employers' Fund (UEF), was represented by Mr. Daniel B. McGregor. Respondent, Rodney Hinkle (claimant), was present and represented by Mr. Richard J. Martin. Post-trial briefs were submitted on April 10, 2000, at which time the case was deemed submitted for decision. A trial transcript has not been prepared.

         ¶2 Exhibits: Exhibits 2 though 5, 7 through 21, 27 through 35, and 37 through 40 were admitted without objection. Exhibits 1, 6, and 36 were not offered. Exhibit 24 was withdrawn. Exhibits 22, 23, 25, and 26 were refused.

         ¶3 Witnesses: Leonard L. Thoreson, Rodney Hinkle, Dale Thompson, Patrick Malatare, Cindy St. Marks, and Bernadette Rice testified at trial. No depositions were submitted.

         ¶4 Issues Presented: The issues, as restated by the Court, are as follows:

1.Whether claimant was petitioner's employee or an independent contractor.
2.If claimant was an employee, whether his claim for benefits and/or the UEF's claim for indemnification are barred on account of his failure to obtain an independent contractor (IC) exemption.
3.If not barred, whether the requirement for an IC exemption violated petitioner's right to due process of law in light of his lack of knowledge of the requirement.
4.Whether claimant deliberately injured himself on December 9, 1996.
5.Whether claimant's use of drugs was a major contributing cause to his December 9, 1996 industrial accident, and if so whether petitioner had knowledge of claimant's use of drugs and failed to attempt to stop that use.
6.Whether petitioner must indemnify the UEF for benefits paid to claimant. 7.If claimant is not entitled to compensation, whether he must reimburse the UEF for benefits.

         ¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         ¶6 The claimant has worked off and on for approximately nine years as a laborer on roofing jobs, primarily tearing off old shingles. Approximately a year prior to the injury which gives rise to this case, he began working as a roofer, installing shingles.

         ¶7 Leonard is a contractor who has been in business for 20 years. He mostly does residential remodeling jobs.

         ¶8 In December of 1996 Leonard contracted with a home owner near Denton, Montana, to build a deck or porch and paint. While the job was in progress, the homeowner decided to reshingle the roof of the house.

         ¶9 At the time reshingling was added to the contract, two workers were already on the job. The workers were Dale Thompson (Dale) and Pat Malatare (Pat).

         ¶10 Of all the witnesses testifying at trial, Pat was the most credible. I credited his version of events where there was conflicting testimony.

         ¶11 When reshingling was added to the Denton job, Leonard knew that he "was up against the weather." (Trial Test.) He determined he needed additional help. He knew claimant from a prior job he had done in Geraldine and knew ...


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