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Uninsured Employers' Fund v. Poynor

Court of Workers Compensation of Montana

May 3, 2005

UNINSURED EMPLOYERS' FUND Petitioner
v.
GALEN POYNOR, d/b/a First Choice Construction & Year-Round Roofing Employer/Respondent. and ROBERT COUSINS Claimant

          Submitted: April 11, 2005

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: The claimant, a roofer, was injured in a fall. His putative employer was uninsured and his claim was therefore submitted to the Uninsured Employers' Fund, which accepted liability for his claim and paid $44, 359.89 in medical and indemnity benefits. The UEF then brought suit to recover its payments from the putative employer. The employer argued that the claimant was an independent contractor.

         Held: The claimant did not advertise, bid, or contract for roofing jobs. Rather, he worked exclusively for wages. He was therefore not engaged in an independent business and does not meet the part B test for independent contractor status, § 39-71-120(1)(b), MCA (1997-1999). Accordingly, he was an employee. The UEF is entitled to indemnification.

         Topics:

Independent Contractor: Independent Business. A worker is not an independent contractor unless engaged in an independent business. § 39-71-120(1)(b), MCA (1997-1999); Lundberg v. Liberty Northwest Ins. Co., Inc., 268 Mont. 499, 887 P.2d 156 (1994).
Independent Contractor: Independent Business. A roofer who does not advertise his services, does not bid on roofing jobs, and does not enter into roofing contracts, but rather works exclusively for a contractor for wages is an employee not an independent contractor.
Uninsured Employers' Fund: Indemnification. An uninsured employer must indemnify the Uninsured Employers' Fund for workers' compensation benefits it pays to an injured employee of the employer. § 39-71-504(1)(b), MCA (1999).
Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: 39-71-504(1)(b), MCA (1999) . An uninsured employer must indemnify the Uninsured Employers' Fund for workers' compensation benefits it pays to an injured employee of the employer.

         ¶1 The trial in this matter was held in Helena, Montana, on December 22, 2004. The Uninsured Employers' Fund (UEF) was represented by Mr. Charles K. Hail. The claimant, Robert Cousins, was present without personal counsel. Respondent, Galen Poynor, represented himself.

         ¶2 At trial the UEF offered exhibits that were not exchanged until the day before trial. The respondent did not object to the introduction of the exhibits; however, I provided him an opportunity to review them after trial and based on that review to raise any issue concerning the benefits paid to the claimant. The evidence was left open pending that review.

         ¶3 Subsequently, the Court received a letter from the respondent stating he wished to contest the indemnity benefits paid to the claimant. I then entered an order allowing further discovery and setting a further evidentiary hearing for April 11, 2005. (Order Allowing Further Discovery; Order Setting Hearing, February 8, 2005.) Additional exhibits and a list of additional witnesses were to be exchanged on March 4, 2005.

         ¶4 On March 3, 2005, an extension of time to April 4, 2005, was granted to the respondent in which to exchange his list of additional witnesses and exhibits. No exchange ever took place and the respondent failed to appear on April 11, 2005. He did not contact the Court prior to the hearing to indicate that he would be unable to attend and has not contacted the Court since the hearing. The UEF appeared on April 11, 2005, through its counsel, Mr. Arthur M. Gorov, and I deemed the evidence closed and the matter submitted for decision at that time.

         ¶5 Exhibits: Exhibits 1 through 5 were admitted without objection.

         ¶6 Witnesses and Depositions: Robert Cousins, Bernadette Rice, Galen Poynor, Edith Borchert, and Dave White ...


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