OPINION ENTERED: March 13, 2009
CLAIM NO. 08-00515
DALLAS MUSIC PETITIONER
VS. APPEAL FROM HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE
DIZZY TIRE CO.;
OLD REPUBLIC INSURANCE COMPANY;
UNINSURED EMPLOYERS' FUND
and HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.
GARDNER, Chairman. Dallas Music (“Music”) seeks review of a decision rendered November 24, 2008 by Hon. J. Landon Overfield, Administrative Law Judge (“ALJ”), dismissing his claim for benefits against Dizzy Tire Company, Inc. (“Dizzy Tire”) and the Uninsured Employers’ Fund (“UEF”). The ALJ determined that no employment relationship existed between Music and Dizzy Tire at the time of Music’s injury. Music also appeals from an order issued December 23, 2008, denying his petition for reconsideration.
On appeal, Music argues the ALJ, in determining the question of employment relationship, failed to conduct the necessary analysis mandated by law. Music maintains that in deciding the issue, the ALJ was obligated to examine the question pursuant to the nine factors established in Ratliff v. Redmon, 396 S.W.2d 320 (Ky. 1965). Music contends that since the ALJ failed to review his employment status in line with Redmon, the opinion below failed to sufficiently apprise the parties of the basis for the ALJ’s ruling so as to permit meaningful review on appeal as required by Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky.App. 1982). We affirm.
Music was born on August 1, 1963 and has a 6th grade education. It is unrefuted that over the course of his adult life he has been employed no more than a total of eighteen months working for three different employers. Otherwise, he has done the occasional odd yard work for family and neighbors. Music last filed an income tax return in 1989.
Dizzy Tire is owned by Music’s brother, Dee Music. The parties agree that on March 28, 2008, Music was on the premises at Dizzy Tire when a tire jack was ejected from under a truck, striking him in the head. It is also undisputed that Music was operating the jack at the time. Thereafter, Music was transported to the emergency room by his brother. Music testified he was an employee of Dizzy Tire when the injury occurred and he had been working there for approximately six weeks to two months, earning $50.00 per day. Music testified that his brother Alfred Music also worked at Dizzy Tire and was the person who had hired him. Music stated that his brother, Dee Music, always paid him in cash.
Dee Music testified repeatedly that Dizzy Tire has no employees other than himself and his brother was not an employee of Dizzy Tire on March 28, 2008 when the injury occurred. He stated Dizzy Tire had no employees for the past fifteen years. He testified that when the accident occurred, his brother did not have his permission or authority to be operating the jack. He testified his brother often came to the business location two to three times a week, and had been doing so for the last twenty years. He described Music as a “flirt” and said his brother would regularly visit Dizzy Tire “to pick up women.” He admitted he had, on occasion, paid his brother $50 in cash to do odd jobs for him personally, such as mowing and cutting brush, in an effort to “help him out.” He said, however, a lot of times he would give Music money “without him doing anything.” He stated his other brother, Alfred Music, also “hangs around” the business “all the time,” as well. He confirmed he would also give Alfred Music money out of his pocket from time to time. Dee Music testified he believed his brother filed a workers’ compensation claim against Dizzy Tire because “he wants a paycheck.” He stated he did not witness the accident involving the jack.
Lita Music, the wife of Dee Music and the claimant’s sister-in-law, testified that she and her husband own Dizzy Tire. She stated her husband is the president and she is the secretary/treasurer of the corporation. She testified her husband was the sole employee of Dizzy Tire on March 28, 2008. She stated the company had not had any other employees for the last ten years “or more.” She testified she was not present at the time of the accident. Lita Music stated her brother-in-law “does not hold down regular jobs.” She admitted that Music had done personal odd jobs for her and her husband in the past, for which he was paid, such as cutting grass, landscaping, painting their home and cleaning their pool. She testified that Music was not an employee of Dizzy Tire on March 28, 2008. She denied that Music had ever worked at the “tire shop” for Dizzy Tire. She testified that Music would come by Dizzy Tire from time to time to get money from her husband.
Emergency room records from Our Lady of the Way Hospital document that Music was seen for treatment of a contusion and laceration of the forehead on March 28, 2008. The records list Music as unemployed and his primary insurance as “KY INDIGENT CARE PRO.”
In the decision on the merits, the ALJ stated he did not find Music to be a credible witness. The ALJ further determined Music was not an employee of Dizzy Tire on March 28, 2008. Relying on the testimony of Dee and Lita Music, the ALJ concluded Music failed to satisfy his burden of proof that an employment relationship existed at the time of injury and dismissed the claim.
Authority establishes that Music, as the claimant in a workers’ compensation case, bore the burden of proving each of the essential elements of his cause of action before the ALJ, including the fact that an employment relationship existed between the parties at the time Music was injured. Snawder v. Stice, 576 S.W.2d 276 (Ky.App. 1979). Since Music was unsuccessful in that burden, the question on appeal is whether the evidence is so overwhelming, upon consideration of the record as a whole, as to compel a finding in his favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984).
“Compelling evidence” is defined as evidence which is so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App. 1985). As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ alone has the authority to arrive at all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/ Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d (Ky. 1979). The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
In this instance, there is ample substantial evidence of record to support the outcome reached by the ALJ concerning Music’s lack of employment status with Dizzy Tire on March 28, 2008. Both Dee and Lita Music testified to that fact. More importantly, the ALJ adequately summarized their testimony within the body of the opinion and found it to be most credible. The fact that Music himself swore under oath that he was an employee of Dizzy Tire when injured merely represents conflicting evidence and does not compel a result other than that reached by the ALJ. As set out above, where the evidence of record pertaining to an issue is conflicting, the ALJ as fact finder is free to pick and choose whom and what to believe. Copar, Inc. v. Rogers, 127 S.W.3d 554, 561 (Ky. 2003). In that there is substantial evidence to support the ALJ’s determination that Music was not an employee of Dizzy Tire when hurt, we may not disturb that ruling on appeal. See KRS 342.285; Special Fund v. Francis, supra.
We likewise find no merit in Music’s assertion that the ALJ failed to make adequate findings of fact as required by Shields v. Pittsburgh and Midway Coal Mining Co., supra, or failed to conduct a proper analysis concerning Music’s alleged employment relationship with Dizzy Tire under the holding in Ratliff v. Redmon, supra. Redmon addresses situations where the parties concede a business relationship exists, but disagree as to whether the claimant is an employee or independent contractor. The nine factors set out in Redmon constitute the various aspects of the business relationship that must be weighed by an ALJ in making such a determination. In the case sub judice, neither party has ever contended Music was an independent contractor of Dizzy Tire and, as such, the court’s holding in Redmon and progeny are inapposite to Music’s claim. What is more, based on our review of the record, we are convinced the ALJ adequately summarized all available evidence pertinent to the issue of employment relationship and made sufficient findings of fact to allow meaningful review on appeal. Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky.App.1988).
Accordingly, the decision rendered November 24, 2008 by Hon. J. Landon Overfield, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON THOMAS MOAK
PO BOX 510
PRESTONSBURG KY 41653
COUNSEL FOR RESPONDENT
DIZZY TIRE COMPANY:
HON DENISE DAVIDSON
PO DRAWER 986
HAZARD KY 41702
HON STACY D CONLEY
PO BOX 471
HINDMAN KY 41822
COUNSEL FOR RESPONDENT
OLD REPUBLIC INS. CO.:
HON GREGORY ALLEN
HON KATHERINE M BANKS
PO BOX 1350
PRESTONSBURG KY 41653
COUNSEL FOR RESPONDENT
UNINSURED EMPLOYERS’ FUND:
HON JAMES R CARPENTER
ASSISTANT ATTORNEY GENERAL
1024 CAPITAL CENTER DR #200
FRANKFORT KY 40601
ADMINISTRATIVE LAW JUDGE:
HON J LANDON OVERFIELD
110 NORTH WATER ST
HENDERSON KY 42420
