*1 DAHL, E. d/b/a DWIGHT CONCRETE, BIG SKY Respondent, Appellant and v. FUND, EMPLOYERS’
UNINSURED
Appellant.
Respondent
No. 98-418.
January 18, 1999.
on Briefs
Submitted
July 13, 1999.
Decided
MT 168.
St.Rep. 649.
295 Mont.
For try, Helena. Doherty, Doherty, & Great Stephen A. Smith Respondent:
For Falls. Opinion Court. NELSON delivered
JUSTICE (UEF), a division ofthe Montana Fund Employers’ Uninsured 1 The appeals from Industry (Department), Labor and Department entered fact, law, judgment and conclusions of order findings of Court re- Court. Workers’ Dahl, doing E. business Dwight decision that Department’s versed the Concrete, Concrete, (collectively referred to Sky Inc. Big and Big Sky as 39-71-501, MCA “Dahl”), employers under § were uninsured and re- Compensation of the Workers’ the decision We reverse opinion. this consistent with proceedings further mand for appeal: two issues on We address ¶2 concluding that Court err in 1. Did the Workers’
¶3 separate have a en- an allowed employees? for its insurance tity procure workers’ 2. Did the Department’s hearings officer err determining workers at issue were under the 1993 Workers’ Com- pensation Act?
Factual and Background Procedural many years After involvement in the concrete business in various capacities, started his own concrete Falls, business in Great Montana, July business, of 1993. Dahl lacked accounting general and result, bookkeeping skills. As a he contracted with Temporary Olsten’s (Olsten), contractor, Services a temporary service him with concrete workers and to payroll checks, issue the workers’ pay em- taxes, ployer employee and provide workers’ compensation insur- ance. Dahl began obtaining workers from Olsten in July of 1993 and ceased doing so in November of Dahl again utilized Olsten’s ser- vices from March through August of 1994. Olsten considered the supplied to Dahl to be Olsten em-
ployees. paid Olsten once a week for its services. When Dahl ex- pressed concern about compensation insurance, Olsten as- sured him that the workers properly insured. August UEF audited Dahl compliance with the requirements. insurance After completing its au-
dit, the UEF concluded that Dahl was the actual of the workers *3 by Olsten, provided that the proper entity workers, was not insuring the and that Dahl could operate not continue with the until he was in full compliance with require- insurance ments. The UEF informed Dahl of its conclusions via a letter which also informed Dahl that he request could a hearing contested case to challenge the UEF’s determinations and that the UEF would issue a cease and de- sist order if Dahl did not a request contested case hearing. Dahl discontinued his business on receipt of the UEF’s letter and
notified the Department that he desired to contest the UEF’s deter- realizing minations. Not that Dahl operations had ceased and was conclusions, contesting its the UEF issued a cease and desist order. Thereafter, Department hearings officer held a contested case hear- ing. hearings The officer found that provided Olsten workers’ com- pensation insurance for the workers that it provided to Dahl but con- cluded that nine of the eleven workers were Dahl’s rather (1993). 39-71-116(29), than “temporary worker[s]” under Thus, officer implicitly concluded that Dahl was an un- insured because he had not complied provisions with the 39-71-401(1), MCA petitioned judicial Court for re- argued view.Dahl provided workers which Olsten were “tem- (1993), workers” under porary since provided workers, workers’ compensation insurance for the employer. that he was not an uninsured The Workers’ Compensation (1993), Court concluded that require did not Dahl to obtain workers’ compensation insurance in his own name and that, even if the workers “temporary were not worker[s]” under § were, therefore, and employees, Dahl was not an uninsured because Olsten work- ers’ compensation insurance for the workers. The UEF re- requested consideration but the Workers’ Court denied its re- UEF quest. appeals.
Standard of Review The Workers’ the Department’s reviews decisions under the standards ofreview forth in the set Montana Ad Act, Procedure seq., ministrative et MCA. C. Concrete §§ Div., 230, 14, Employment Co nst. v. Relations 1998 MT ¶ 41, 14, 2-4-704, MCA,provides Mont. 964 P.2d 14. Section in pertinent part:
(2) may judgment The court not substitute its for that of the agency weight questions as to the of the evidence on of fact. The may affirm the case agency court decision ofthe or remand the proceedings. may modify further The court reverse or the decision rights appellant prejudiced if substantial ofthe have been because: (a) inferences, conclusions, findings, the administrative or deci- sions are:
(i) statutory provisions; in violation of constitutional or (ii) statutory authority agency; excess of (iii) made unlawful upon procedure; (iv) law; affected other error of
(v) reliable, clearly probative, erroneous view of the record; substantial evidence on whole (vi) or or characterized abuse of arbitrary capricious discretion; or clearly unwarranted exercise of discretion (b) decision, fact, findings upon issues essential to requested. although not made *4 did the same standard of review as This Court utilizes the
¶11 Synek 14 v.State Com- Loney, (citing Court. Compensation Workers’
177 (1995), 246, 250, 900 884, 886). P.2d Mut. Ins. Fund Mont. pensation findings determine Department’s we review the fact to if doing, In so Compensation and the Court’s clearly erroneous Workers’ con they are they to whether are correct. See of law determine clusions Trustees, County Dist. Baldridge v.Board Rosebud School No. (citing 1346). 53, 57-8, (1997), 951 P.2d 287 Mont.
Issue 1. concluding err in that Compensation the Workers’ Court Did § 39-71-401(1), (1993), to a employer separate MCA allowed an have en- employees? tity compensation workers’ insurance its procure for Court The UEF asserts Workers’ erred 39-71-401(1), (1993), did Dahl require that not to concluding in MCA § his that insurance in own name and it compensation workers’ obtain that insured the workers. The UEF maintains was sufficient (1993), alone, 39-71-401(1), standing require MCA did not that § coverage in own name. Never- compensation workers’ obtain 39-71-401, (1993), theless, UEF claims that when inter- § with Act insure coordination the Workers’ as preted to whole, compensation Dahl to required insurance “temporary not under worker[s]” for workers who were those were, (1993), therefore, “employ- and who 39-71-118, MCA ees” under MCA(1993), alone, agrees standing did procure compensation him insurance require Moreover, Dahl provided. which Olsten claims correctly interpreted (1993), have to language” and that this Court would “insert into the conclusion that the Workers’ to reach
the statute Court erred. (1993), in provides pertinent part: Section (1) Ex- employments exempted. covered and
Employments in subsection Act as cept employ- in 39.-71-117and to all employers, to all defined applies any employee An who has as defined 39-71-118. ees hire, expressed or contract im- any appointment service written, by provisions shall elect to be bound oral or plied, 1,2, employee or 3. whose plan No. Each Act is to and bound subject by the Workers’ bound employer. been elected plan has *5 added.) The (Emphasis 1993 Worker’s Act defines an “uninsured as an employer” employer complied who has not with the (1993). 39-71-401, provisions Section 39-71-501, MCA(1993). MCA § Statutory language be according must construed plain to its meaning the language if is clear and no unambiguous, further in terpretation required. Balyeat Law, Pettit, MT 252, PC v. ¶24, 1998 (citation omitted). 196, 24, 398, 291 Mont. 967 P.2d 24 ¶ ¶ Section (1993), 39-71-401(1), clearly MCA and unambiguously requires the “employer” 1, 2, to be by “compensation to elect bound No. plan or 3.” Thus, contrary interpretation, to Court’s § 39-71-401(1), (1993), precludes entity MCA a separate from providing workers’ an compensation employer’s employees; insurance for it simply provides employer that procure the must workers’ insur 3") 1,2, (by “compensation plan ance either No. or its employees. for See Loney, (stating 12 that if the employer’s workers were not temporary ¶ temporary workers then the contractor service was not the workers’ em ployer the correctly employer and that UEF ordered the opera cease that grounds employer employer tions on the the was an uninsured even though the service temporary provided compensa contractor workers’ workers). Buerkley Aspen tion insurance for See also v. Meadows 97, 12, 263, Partnership, ¶12], Limited 1999 MT [294 Mont. 980 ¶ P.2d MCA, (stating any that requires any 1,2, employee provisions compensation plan to be bound No. or 3). Moreover, 39-71-401(1), (1993), the plain language since MCA pre entity providing cludes a from separate compensation insurance not, for an employer’s employees, we do as the UEF need to suggests, look to the 1993 Act as a whole to reach conclusion which the UEF advances. Accordingly, we hold that Workers’ 39-71-401(1), (1993), concluding
erred in that allowed an em separate entity ployer procure to have a in employees. surance for its
Issue Department’s hearings determining Did the err in officer the workers at issue were Dahl’s under the 1993 Workers’ Act? determining officer erred in argued 19¶ provided which were not “tempo- nine of the workers UEF, rary how- worker[s]” that, ever, asserted under the Workers’ Court’s deci- (De- Construction, Inc., WCC Loney in C. Concrete #9305-6799 sions 28, 1993), which Olsten to Dahl were cember (1993).1 39-71-116(29), MCA “temporary worker[s]” under § (1993), defines “temporary Section “a whose are furnished to another on a as worker services worker” permanent employee to substitute for a part-time temporary basis emergency leave or to meet an or short-term workload.” Section on con provides temporary “[a] service premium of a worker for and loss tractor is purposes.” experience Court, Loney Loney, In the case a concrete construc- before this (the temporary service business contracted with Olsten same
tion case) and 7. in the workers. contractor involved instant ¶¶ and, presumably, a wages, to cover overhead costs paid Olsten *6 Loney’s provided and their com- profit. paid workers Loney, insurance. 9. pensation ¶ Loney and order to on the Department issued a cease desist Loney by temporary that the utilized were not workers
basis workers Olsten, and, therefore, Loney, employer respon- that and not was the the payment their benefits and the of sible for Loney, Department’s hearings 10-11. After the exam- premiums. ¶¶ Loney’s temporary none were work- iner determined that workers 11. ers, Loney appealed Compensation Loney, to the Court. ¶ hearings Court affirmed the examiner’s The Workers’ Loney, temporary that certain were not workers. findings ¶ workers Loney appealed. 11. defined a first noted that the Workers’ Act We deployed as a to meet either an emer-
“temporary worker” worker Loney, emergency need. 23. We stated that “an or a short-term gency ¶ recognize did not Dahl’s that the Workers’ Court address 1. We hearings determining nine argument that of the workers officer erred “temporary worker[s]” under to Dahl were not which Olsten (1993). general, not issues that this Court does address MCA However, 2(a), M.R.App.P. by our Rule not addressed the lower court. See were reviewed Court has of review in cases where the Workers’ standard utilized Department as the standard review form the is the same a decision 250, 900 Synek, Loney, (citing at Mont. ¶ Court. 886). judicial economy, the we review Consequently, in will the interests P.2d at pro which Olsten hearings that nine the workers examiner’s determination 39-71-116(29), “temporary worker[s]” under § vided Dahl were not (1993). thus, they Dahl’s under that were is characterized an immediate need that is Loney, unforseen.” ¶ Loney 23. Since the evidence showed consistently that used the work- daily job ers at issue for business functions such as supervision, book- keeping, and for the keeping minimum number of concrete workers to job activity, meet its baseline level of we held that Loney did not use at emergency Loney, workers issue meet needs. 23. ¶ that “[t]he We also stated Workers’ Compensation appro- workers, priately distinguished core who an employer’s serve base- needs, workers, line from who only are used short term.” 23. Loney, Since the workers at Loney’s issue served ¶ baseline needs continuously and consistently Loney, worked and for we held that not use Loney, did the workers to meet short-term needs. 23. Therefore, we there held that was substantial support evidence to at findings examiner’s that workers issue “tem- porary under Loney, worker[s]” 24. case, In the undisputed instant evidence shows at issue for between workers worked Dahl six and fifteen weeks in Moreover, twenty between and weeks in eight 1993 and 1994. the evi had at two dence shows Dahl least workers for the weeks at issue frequently during and that had four five workers working Thus, Dahl not use the workers week. did to meet either an immedi Instead, ate need was unforseen or for short-term demands. daily core serve used the as workers to business functions and again from June 1993 to November 1993 from March to Au Thus, gust since the workers which Dahl used continuously consistently served his baseline needs and worked him, they “temporary were not worker[s]” (1993). Accordingly, we that the Department’s hearings hold ex correctly aminer determined that nine workers at issue were under the 1993 Workers’ Act. *7 we point, As final note that Dahl asserted in the Workers’ ¶26 appor- Court that the examiner erred in not Compensation Concrete, employers penalty Big Sky the uninsured between tioning personally, Inc. and Dahl and that is Notwithstanding, vagueness. Compen- void for neither the Workers’ Court sation nor this has considered the merits of these issues. Hence, Compensation remand this case to the Workers’ Court to we resolve them. for further consistent proceedings Reversed and remanded
¶27 opinion. with this TURNAGE, HUNT,
CHIEF JUSTICE JUSTICES LEAPHART concur. GRAY concurs and dissents.
JUSTICE one, the which join opinion I in Court’s on issue holds that Dahl separate entity purchase could not have a in- respectfully surance to cover his workers. I dissent from the Court’s two, however, opinion question on issue which is the of whether employees workers at issue were Dahl’s the 1993 Workers’ Compensation Act. disagree by I do not with the law set forth the Court in issue two. Rather, my given procedural it is the odd posture view in which that — issue,
this case before us —we should not address this but should re- mand to the Workers’ Court for resolution. The issue was, fact, whether the workers Dahl’s in by raised Dahl —but not addressed —in the Workers’ Court be- required cause court determined issue of whether Dahl was to his own dispositive. insurance was remanding Since are on the other we issues reserved the Workers’ Court, we do the same with should the issue of whether employees. workers were Dahl’s agree judicial I could not more with the Court’s concern for econ- Moreover, omy. I furthering judicial understand its interest in econ- omy by addressing hearing examiner’s determination nine of employees, the workers to Dahl were his rather than having case, however, my Court do so. this it is having opportunity view that interest in an brief his issue of were, fact, provided by whether the workers Olsten’s in judicial economy. trump must our concern for Because the Workers’ issue, Compensation Court did not address this it is not before us and did it this quite properly appeal. not address For this Court to importance party address an issue of such critical to a to the appeal, heard, allowing party without to be strikes me as unfair at the very least. I any regard Nor can draw consolation in this from the similari- There, honey. proceeded
ties between the case and the case present orderly hearing stage examiner Department’s an manner from the hearing a review Court. The examiner workers; temporary ap- determined that none of the workers were on finding Court affirmed the that cer- peal, Workers’ workers, hearing but reversed the tain workers were *8 finding examiner’s as to the remaining workers. appealed this Court and we affirmed the Workers’ Court’s deci- sion that certain the workers were not workers but were employees. Loney, Thus, that, his 25. it is clear ¶¶ performed analysis Workers’ a careful to deter- mine at actually Loney’sbaseline, which of workers issue were core, consequently, under the workers’ compensation statutes. case, present In the the Court not explain does the basis for its that all
determination of workers at issue were “core workers to daily that, [Dahl’s] serve business functions.” Court notes in the aggregate, the workers six worked between and fifteen weeks in 1993 eight twenty addition, and between weeks in the Court points showing evidence to the that Dahl had “at least two workers for the at issue and that Dahl frequently weeks had four or five work- during Nothing evidence, ers a week.” in that working recitation of however, much questions resolves how work was Dahl’s base- line how many load and of workers were core workers needed to opposed fill actual baseline needs as to short-term workers needed to perform over may work and above Dahl’s baseline needs. It well be that, at true since Dahl used least two workers for each the weeks issue, at core those workers were workers needed for his baseline clear, however, nearly needs. It not is additional workers also were core workers. regarding I would remand the issue whether the workers issue not addressed Compen- —an court, together sation Court—to that with the other issues being re- issues, a on I necessary
manded. Because remand other cannot see judicial economy remanding how is advanced this issue as well, doing since so particularly opportunity would Dahl the subsequent if appeal brief this issue one is to occur.