Wright v. Fardo

LESTER, Judge,

dissenting.

I would agree with my brothers as to the method of computation of workmen’s compensation which they invoked in this appeal if I agreed that the “after hours handy man”, “the occasional employer” or merely the “odd job entrepreneur” was within the contemplation of the legislature when it enacted KRS 342.640(1) without an exclusion pertaining to the above type of worker. In Fields v. Twin City Drive-In, Ky., 534 S.W.2d 457 (1976), the Supreme Court summarily removed independent contractors from coverage under the Workmen’s Compensation Act and I would do the same with regard to an employee such as Ronald Far-do.

This Court directed counsel to furnish evidence as to whether workmen’s compensation insurance coverage could be had for an employee such as the appellee herein. The documents presented to this Court indicated that a minimum of $500 per year would be the premium and if placed in the Assigned Risk Plan, there would be a sur*275charge of 8%. To emphasize the difficulty of acquiring such coverage, I quote the Assistant Deputy Commissioner, Property and Casualty Division, Department of Insurance, to the effect that:

I find it hard to conceive of an insurance company writing a policy when they do not know who the employees will be, what their remuneration will be, nor what the hazardness of the employment will be.

I further invite attention to KRS 342.790 which provides that the Attorney General can institute an action against any “employer” who falls within the provisions of the Workmen’s Compensation Law and fails to acquire proper insurance when the Uninsured Employers’ Fund has had to pay a claim. Under the facts of another case, it is conceivable that an employer such as Wright could be cast into the role of a bankrupt when we recall that compensation must be paid during the term of disability.

I do not believe the legislature intended to include the casual worker of the part-time employer and therefore, I respectfully dissent.