Summary 2007 WY 39

Summary of Decision issued March 9, 2007

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Case Name: Jenkins v. State, ex rel. Wyoming Workers’ Safety and Compensation Division

Citation: 2007 WY 39

Docket Number: 06-145

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Petitioner): Michael Schilling of Schilling & Winn, PC, Laramie, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General. Argument by Ms. Radosevich.

Issue: Jenkins: Whether the hearing examiner properly applied the law in concluding Appellant was a covered employee under the Wyoming Workers’ Compensation Act. The Division: Whether the OAH committed an error of law when it determined a corporate officer is covered under the Wyoming Workers’ Compensation Act when there are no non-corporate officers employed by the corporation.

Facts/Discussion: Jenkins is a professional writer who writes articles for Outside magazine on an independent contractor basis. For tax purposes, he formed a subsection C corporation, Mark D. Jenkins, Inc. with himself and his wife as the sole officers and employees. The corporation obtained workers’ compensation coverage for Jenkins. After an injury suffered while rock climbing during a staff retreat in New Mexico, Jenkins was awarded worker’s compensation benefits after a contested case hearing. The district court reversed the award concluding that the Wyoming Workers’ Compensation Act (the Act) did not permit coverage for corporate officers when there were no non-corporate officer employees.
Standard of Review: Judicial review is governed by Wyo. Stat. Ann. § 16-3-144(c). The determinative issue in the instant case is a question of law concerning the construction of several statutory provisions of the Act.
Jenkins’ argument for coverage under the Act is based upon a “dual capacity” theory where coverage for corporate officers is provided for under Wyo. Stat. Ann. § 27-14-102(a)(vii)(C) and § 27-14-108(k) if the corporation had elected coverage and the corporate officer suffered a work-related injury while acting in the capacity of an employee. The Division argued and the district court held that coverage is available for corporate officers under the provisions of the Act only if the corporation employs individuals covered under subsections (a) or (j) of § 27-14-108 other than a corporate officer and the corporation elected coverage for its officers. The Court stated the Act makes it clear that a corporation or limited liability company must be “employing” individuals who are “covered” under those subsections. The plain language of the statute clearly sets forth a requirement that a corporation or limited liability company employ individuals as employees other than the corporate officers before coverage for corporate officers may be elected. The phrase “employing individuals pursuant to subsections (a) or (j)” would not have been necessary if the intent had been to allow coverage when there were no non-corporate officer employees. The Court stated this interpretation was consistent with other provisions of the Act including the definition of “employee” which specifically excludes sole proprietors, partners of a business partnership and spouses or dependents of employers living in the same household. The Court stated this was evidence of legislative intent contrary to Jenkins’ “dual capacity” theory.

Holding: Jenkins’ corporation has two corporate officers and no other employees. Without any employees covered under subsections (a) or (j) of § 27-14-108, worker’s compensation benefits are not available for the corporate officers. Accordingly, the district court’s order reversing the hearing examiner’s award of benefits is affirmed.

Affirmed.

J. Hill delivered the decision.

J. Kite, Dissent: J. Kite disagreed with the majority’s reading of the applicable statutes and would have affirmed the conclusion of the OAH that Jenkins was covered by worker’s compensation insurance because he was an officer of a corporation that had elected worker’s compensation coverage for its officers as it was entitled to do pursuant to the plain language of the statute.

Link: http://tinyurl.com/2jsy5y .