       IMPORTANTN-OTICE
      NOT TO BE PUBLISHED      INION




THIS OPINION IS DESIGNATED "NO T TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCEDURE PROHUL CA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYINANY OTHER
CASE INANY COURT OF THIS STA TE.
                                                               RENDERED : JUNE 15, 2006
                                                                  NOT TO BE PUBLISHED



                 6s~~rr~me f9aix~                   ~~

                                     2005-SC-0726-WC



 RICKY DIXON                                                                     APPELLANT


                         APPEAL FROM COURT OF APPEALS
V.                              2005-CA-0620-WC
                       WORKERS' COMPENSATION NO. 03-84588


DON AMBURGEY PLUMBING, HON.
JOHN B . COLEMAN, ADMINISTRATIVE
LAW JUDGE; AND WORKERS'
COMPENSATION BOARD                                                              APPELLEES


                       MEMORANDUM OPINION OF THE COURT

                                        AFFIRMING

       An Administrative Law Judge (ALJ) dismissed the claimant's application for

workers' compensation benefits on the ground that he was an independent contractor

rather than an employee. The Workers' Compensation Board and the Court of Appeals

affirmed . Appealing, the claimant maintains that the ALJ failed to consider all of the

relevant criteria set forth in . Ratliff v. Redmon , 396 S .W.2d 320 (Ky. 1965), and that the

evidence compelled a finding that he was an employee. We affirm .

       The claimant was born in 1959. He completed high school, was certified as a

welder, and was licensed for boiler installation . He testified that he was self-employed

as a welder from 1976 to 2003. He also testified that for the last five or six years he

had worked for Don Amburgey Plumbing about 90% of the time . When he was off for
brief periods while a crew changed locations, he would either work in his father's

welding shop or perform small jobs . When Amburgey called him, he would report for

the next job immediately . He stated that he earned $35.00 per hour, worked an

average of 40 hours per week, and was paid weekly. He used his own tools but also

used Amburgey's grinders and hand tools. Amburgey provided the welding rods. He

stated that he worked the same hours as others who worked for Amburgey and was not

free to come and go as he wished . On cross-examination, he acknowledged that no

taxes were withheld from his pay and that he did not receive paid vacation .

Nonetheless, he considered himself an employee the entire time that he worked for

Amburgey .

       The claimant alleged that he injured his back when he pulled on a piece of pipe

while working for Amburgey at the Perry County Justice Center on April 28, 2003. He

testified that he completed the remaining two welds and went home because there was

no further work to do until the pipe was pressure tested . He acknowledged that he did

not inform Amburgey of the injury when asked if he was finished for the day. The next

morning, he sought treatment at the emergency room for back pain. About a week or a

week and a half later, his daughter drove him to Amburgey's office to complete an

accident report. He denied having any contact with Amburgey during the period

between the accident and the day he went to the office .

      When deposed on March 25, 2004, Don Amburgey testified that he had been a

self-employed mechanical contractor for 24 years and owned Don Amburgey Plumbing.

The company's primary work was to provide institutional plumbing, heating, hydronic

pipe, sheet metal, and HVAC equipment . He generally employed from 35 to 50

individuals but no full-time welders . Early in 2003, Amburgey employed a full-time
 welder at $15.00 per hour, but he laid the man off in the spring due to insufficient

 demand . He explained that about 60% of the company's projects required welding but

that he needed a welder for only about 5% of a project.

       Amburgey testified that he began a business relationship with the claimant about

five or six years earlier to provide pressure pipe welding on a job-to-job basis. The

claimant provided his own welding truck and most of his tools. Amburgey would obtain

items the claimant did not have and replace tools that broke on the job . He stated that

the claimant could come and go as he pleased . He submitted a weekly invoice for his

services and was paid $35 .00 per hour, from which nothing was withheld . Amburgey

provided a Form 1099 for tax reporting purposes . He stated that the claimant worked

side-by-side with Amburgey employees and was under the supervision of the

pipefitters, but he considered the claimant to be a sub-contractor. Amburgey stated

that he attempted to hire the claimant on two occasions but that he declined, preferring

to work for $35.00 per hour rather than $15 .00. He testified that sometimes he had to

wait for the claimant to become available because he also worked for other companies .

 Several times he had missed work due to back problems. Amburgey introduced

invoices from Dixon Welding Services for the period from December 23, 2002, through

April 28, 2003, totaling $8,190.00 . On cross-examination, he acknowledged that the

invoices might not have represented all of the hours that the claimant worked and also

that the company had kept him "pretty busy" the past two to three years .

       Amburgey testified that the claimant asked him for a job after welding at the

Perry County Justice Center was finished but that he had no other work for him to do at

that time . On May 10, 2003, the claimant telephoned him at home to report that he

injured his back while working on April 28. On May 12, the claimant came to the office

                                            -3-
and prepared an injury report. Amburgey acknowledged that he had no record the

claimant carried workers' compensation insurance and that he did not require him to do

so .

       After reciting an extensive summary of the evidence, the ALJ listed the nine

Ratliff v. Redmon , supra , factors, noting that four were dominant. Uninsured

Employers' Fund v. Garland, 805 S .W .2d 116 (Ky. 1991) . The ALJ then analyzed the

evidence as follows :

             In this instance, the evidence indicates that the alleged employer
             was engaged in commercial institutional plumbing, heating,
             hydraulic [sic] pipe, sheet metal and HVAC equipment in large
             structures . According to the employer, he would need the specialty
             skills of a welder to make up approximately 5% of each total
             project . While each project may be in need of a welder, he testified
             that he did not have enough work to keep a full time welder as an
             employee. Further, the evidence indicates that the defendant did
             not exercise a great deal of control over the plaintiff as the plaintiff
             was free to leave when his welding work was completed and was
             not limited to a set working time as were other employees . The
             plaintiff would simply submit invoices for the time he worked each
             week which would be paid by the defendant. As a welder, the
             plaintiff clearly had a professional skill which was not available to
             most laborers . The skill was developed to such a point that the
             plaintiff utilized his own welding truck and welder on the jobs given
             to him by the defendant herein . When looking at the true nature of
             the intent of the parties, it becomes clear that the parties intended
             an independent contractor relationship to exist rather than that of
             an employee. While the plaintiff did subcontracting welding work
             for the defendant-employer for multiple years, the evidence does
             indicate that the plaintiff was free to do other jobs and the
             defendant would sometimes have to wait for the plaintiff to
             complete other jobs before being able to hire his services . The
             plaintiff utilized his own truck and welder and would be free to leave
             the job site as soon as his welding was completed . The bills were
             paid by invoice on a weekly basis with no deductions, benefits, or
             vacation days accumulated . Perhaps, the most clear indication
             comes from Mr. Don Amburgey's testimony . . . that he had
             attempted to hire the plaintiff as an employee, but the offer was
             rejected by the plaintiff . The plaintiff was paid $35 .00 an hour for
             his specialized work where the employees who did welding earned
             $15 .00 an hour. The plaintiffs pay was also always provided on a
               1099 tax form at the end of each year rather than a W-2 : From this
               evidence, it is clear the parties intended an independent contractor
               relationship to exist and therefore, I find for the defendant on this
               issue. With that finding, the remaining issues become moot.

       As set forth in Ratliff v. Redmon , supra, the nine factors to be considered when

determining whether an individual is an employee or independent contractor are: 1 .) the

extent of control that the alleged employer may exercise over the details of the work; 2 .)

whether the worker is engaged in a distinct occupation or business ; 3.) whether the type

of work is usually done in that locality under the supervision of an employer or by a

specialist, without supervision ; 4.) the degree of skill required by the work; 5.) whether

the worker or alleged employer supplies the instrumentalities, tools, and place of work;

6.) the length of the employment ; 7 .) the method of payment, whether by the time or the

job; 8.) whether the work is a part of the regular business of the employer; and 9.) the

intent of the parties.

       The Ratliff v. Redmon test was later refined, in Chambers v. Wooten's IGA

Foodliner, 436 S.W .2d 265, 266 (Ky. 1969), to focus primarily on four of the nine

factors : 1 .) the nature of the work as related to the business generally carried on by the

alleged employer; 2 .) the extent of control exercised by the alleged employer; 3.) the

professional skill of the alleged employee; and 4.) the true intentions of the parties . In a

subsequent case, the court noted that all of the Ratliff v. Redmon , supra , factors must

be considered but that treating the role of the alleged employee's work in relation to the

regular business of the employer as the predominant factor in the analysis fulfills the

theory of risk spreading upon which workers' compensation is based . Husman Snack

Foods Co. v. Dillon , 591 S .W .2d 701, 703 (Ky. App. 1979), citing Larson, Larson's

Workmen's Compensation Law, § 43 .51 (1978) .
          Most recently, in Uninsured Employers' Fund v. Garland, supra , the court

 addressed the issue of control over the, details of work, noting that in Ratliff v. Redmon,

supra , the court had relied upon Professor Larson's treatise for the principle "that the

control of the details of work factor can be provided by analysis of the `nature of the

claimant's work in relation to the regular business of the employer."' (Emphasis

original) .   Uninsured Employers' Fund v. Garland , supra , 805 S .W.2d at 118, citing

Ratliff v. Redmon, supra , 396 S.W .2d at 325. Furthermore, citing to the decisions in

Chambers v. Wooten's IGA Foodliner, supra , and Husman Snack Foods Co. v. Dillon,

supra, the court emphasized that at least the four primary factors must be considered

and that a proper legal conclusion could not be drawn from only one or two factors. Id .

at 119.

          In summary, since Ratliff v. Redmon , supra , the employer/independent

contractor analysis has evolved into three major principles : 1 .) that all relevant factors

must be considered, particularly the four set forth in Chambers v. Wooten's IGA

Foodliner , supra; 2.) that the alleged employer's right to control the details of work is the

predominant factor in the analysis ; and 3 .) that the control factor may be analyzed by

looking to the nature of the work in relation to the regular business of the employer.

UEF v . Garland , supra ; Husman Snack Foods Co. v. Dillon, supra .

        The claimant asserts that the AU failed to consider all of the relevant factors .

Moreover, the facts on which the ALJ based the findings regarding three of the four

predominant factors were clearly erroneous. Focusing on the favorable evidence, he

argues that it compelled findings that Amburgey's business required a full-time welder,

that Amburgey maintained control over his work, and that the parties intended for him to

be an employee .
       Although the claimant complains that the AU failed to make specific findings

regarding all of the Ratliff v. Redmon factors, he failed to petition for reconsideration in

order to request the findings that he asserts were required . Therefore, the assertion is

not properly preserved for appeal. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky.

1985). In any event, the findings that the AU made were more than adequate to permit

a meaningful appellate review. See Biq Sandy Community Action Program v. Chaffins ,

502 S .W.2d 526 (Ky. 1973); Shields v. Pittsburgh and Midway Coal Mining Co. , 634

S.W .2d 440 (Ky. App. 1982) . It is apparent that the AU conducted a thorough review

of the evidence, including testimony by the claimant and Don Amburgey, and correctly

stated the applicable law.

        The burden was on the claimant to prove every element of his workers'

compensation claim, including his status as an employee. Roark v. Alva Coal

Corporation , 371 S .W .2d 856 (Ky. 1963) . KRS 342.285 designates the AU as the

finder of fact with the sole authority to weigh the evidence ; therefore, it is within the

ALJ's discretion to determine the quality, character, and substance of evidence. See

Paramount Foods, Inc. v. Burkhardt , 695 S .W .2d 418 (Ky. 1985) . In doing so, an AU

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 party's total proof.

Caudill v. Malonev's Discount Stores, 560 S .W.2d 15, 16 (Ky. 1977). Stated otherwise,

where the evidence is conflicting, it is for the AU to choose whom and what to believe.

Pruitt v. Bugg Brothers , 547 S .W .2d 123 (Ky. 1977). A finding against the party with the

burden of proof may not be reversed on appeal unless the favorable evidence was so

overwhelming that it compelled a finding in the party's favor. Special Fund v. Francis ,

708 S .W.2d 641, 643 (Ky. 1986) ; Paramount Foods, Inc. v. Burkhardt , supra .
       In the present   case, the ALJ was persuaded that the claimant was an

independent contractor. In doing so, the ALJ relied on evidence that welding is a

specialized skill, that it comprises a very small percentage of the work on Amburgey's

projects, that the claimant was free to leave a worksite when he finished welding, that

he used his own welding truck and welder when working for Amburgey, that he was free

to do other jobs when Amburgey had no work, that he submitted invoices for his time,

that he was paid without deductions and received no vacation time, that he received a

Form 1099 rather than a W-2 for tax purposes, and that he received $35.00 per hour

when an employee welder would have received $15.00 per hour . Although the claimant

points to evidence that would have supported a favorable finding, he has failed to show

that the ALJ misunderstood any relevant evidence or that the ALJ's conclusions were

unreasonable under the weight of the evidence . See Special Fund v. Francis , supra .

Moreover, he has failed to show that the ALJ misapplied the law. Under such

circumstances, the decision may not be disturbed on appeal .

       The decision of the Court of Appeals is affirmed .

       Lambert, C.J . ; and Cooper, Johnstone, Roach, Scott, and Wintersheimer, JJ.,

concur . Graves, J., dissents by separate opinion .
COUNSEL FOR APPELLANT :

Edmond Collett, PSC
Monica Rice Smith
21975 Main Street
PO Box 1810
Hyden, KY 41749

COUNSEL FOR APPELLEE,
DON AMBURGEY PLUMBING:

Gerald Vanover
Jones, Walters, Turner & Shelton PLLC
151 N Eagle Creek Drive
One Fountain Plaza, Suite 310
Lexington, KY 40509
                                                            RENDERED : JUNE 15; 2006
                                                               NOT TO BE PUBLISHED


                ,six~r~mg Court of ~~tfixx~t~r
                                   2005-SC-0726-WC



RICKY DIXON                                                                  APPELLANT


                        APPEAL FROM COURT OF APPEALS
V.                             2005-CA-0620-WC
                      WORKERS' COMPENSATION NO . 03-84588


DON AMBURGEY PLUMBING ; HON .
JOHN B. COLEMAN, ADMINISTRATIVE
LAW JUDGE ; AND WORKERS'
COMPENSATION BOARD                                                           APPELLEES


                    DISSENTING OPINION BY JUSTICE GRAVES


       As I recently expressed in my dissenting opinion in Lowes # 0507 v. Greathouse ,

182 S .W.3d 524, 527 (Ky. 2006) (Graves, J ., dissenting), I believe this Court has

veered too far away from the underlying intent and purpose of the Workers'

Compensation Act . Once again an injured worker has been erroneously excluded from

his rightful entitlement to compensation under the Act. Accordingly, I must respectfully

dissent.

       Possessing a high school education, a 6G welding certification, and a boiler

installation license, Appellant worked steadily as a welder for about twenty-seven (27)

years. During the last five or six years of employment, Appellant worked almost

exclusively for Appellee . The majority concedes that Appellant was given a choice on

at least two occasions - to be classified as an employee and take home less pay or be
classified an independent contractor and take home more pay. Understandably,

Appellant wanted to be classified as an independent contractor in order to have more

disposable income, which would result from being able to evade withholding for all

taxes (income, social security, and payroll), as well as any necessary wage adjustment

to cover the employer's cost of worker's compensation insurance for an employee.

Appellant and Appellee were pari dilecto in this precarious arrangement, pursuant to

which Appellee evaded the employer's statutory contribution for FICA taxes and

circumvented other requirements of the law. The majority appears content with

Appellant's choice and the resulting consequences of that choice.

       The philosophy behind workers' compensation encompasses more, however,

than the worker's amount of disposable income or his preference for what he would like

to be called . When evaluating the options a society has when confronted with a

disabled worker, Professor Larson, former Under Secretary of Labor and author of

Larson's Workers' Compensation Law, describes three options . First, society could

refuse all aid and leave the worker to his own devises, to starve or beg in the street

depending on the severity of his disability . Second, society could put the worker on

some form of government relief and force the cost of maintaining him on society as a

whole . Third, and the choice made by the Worker' Compensation Act, society can

place the cost of supporting the injured worker on industry, which will ultimately transmit

this cost to the consumer through higher prices. This third option contains some of the

same loss-spreading advantages of the second option, with the additional advantage of

only spreading the loss among those who would reap the benefits of industry.

      Professor Larson states that the purpose of the ultimate social philosophy of

workers' compensation is:
       [T]he belief of the wisdom of providing, in the most efficient, most dignified
       and most certain form, financial and medical benefits for the victims of
       work-related injuries which an enlightened community would feel obligated
       to provide in any case in some less satisfactory form, and of allocating the
       burden of these payments to the most appropriate source of payment, the
       consumer of the product.

Larson's Workers' Compensation Law, § 1 .03[2] at 1-5 (Matthew Bender 1999) .

Similarly, this Court noted in Zurich American Insurance Company v. Brierly, 936

S .W.2d 561, 563 (Ky. 1996), "[a]Ithough both the employee and the employer have

rights under the Act, the primary purpose of the law is to aid injured or deceased

workers ."

       This Commonwealth has long recognized the economic wisdom behind the

social altruism of workers' compensation . Such philosophy was applied in Husman

Snack Foods Company v. Dillion , 591 S .W .2d 701 (Ky. App. 1979), where the Court of

Appeals held that, because the consumer should bear all the costs of the industry, any

worker whose services are a "regular and continuing part of the cost of the product, and

whose method of operation is not such an independent business that it forms in itself a

separate route through which his own costs of industrial accident can be channeled, is

within the presumptive area of intended protection." Id . at 703; see also , Apex Mininq

v. Blankenship , 918 S .W.2d 225, 229 (Ky. 1996) ("[W]e are also mindful that the

Worker's Compensation Act is social legislation to be construed liberally and in a

manner consistent with accomplishing the legislative purpose ."). Looking at the facts of

this case, it is clear that the Act's long recognized philosophy and legislative purpose

was surely meant to include Appellant .

       In their joint effort to frustrate the costs and requirements of modern social

legislation, Appellant and Appellee had a somewhat flexible working arrangement .
Appellant worked for Appellee nearly 90% of the time and took time off only when

Appellee's work waned . It is undisputed that Appellant was absolutely dependent upon

Appellee for the bulk of his income and that Appellant worked other jobs only when

Appellee was unable to employ him. Appellant's work as a welder was an integral part

of Appellee's business as it was acknowledged that 60% of the company's projects

required welding work. Moreover, Appellant testified that he was not free to come and

go as he pleased, but rather he worked the same hours and had the same breaks as

Appellee's other employees . Appellant further testified that while he was working for

Appellee, he never worked for someone else and he never cut his work short to go work

on another job. Finally, when Appellant did work another job during times he was laid

off from Appellee, he would return immediately upon being called back to employment

by Appellee .

       "[A] proper Ratliff v . Redmon[, 396 S .W .2d 320 (Ky. 1965)] analysis require[s] a

consideration of all four factors ." Purchase Transp . Services v. Estate of Wilson , 39

S .W.3d 816, 818 (Ky. 2001). Both the AU and the Court of Appeals erroneously based

the bulk of their determination on only one factor - that Appellant made a choice to work

for higher wages, and thus, he must have intended to take on the risk associated with

independent contractors . However, "an employer cannot by contrivance force an

employee to work outside the protection of the Workers' Compensation Act, even if the

employee acquiesces in the employer's terms ." Husman Snack Foods Co. , supra, at

703 . Furthermore, "in a contract of hire the name adopted by the parties to describe

their relationship is ordinarily of very little importance as against the factual rights and

duties they assume ." Duke v. Brown Hotel Co . , 481 S.W.2d 289, 290 (Ky. 1972) .

       When the four primary factors set forth in Ratliff, supra, are considered and
weighed in their entirety, Appellant's claim should not have been rejected . The right to

control details of the work is the primary test used by courts to determine employee or

independent contractor status . Larson , supra , § 60 .03 at 60-5 . Although Appellant

may have had specialized skills and supplied some of his own equipment, he was

controlled and directed by Appellee, along with Appellee's other employees, when

performing nearly all of his assigned tasks. Professor Larson also notes that the power

to dismiss a worker is synonymous with the right to control the worker. "The absolute

right to terminate the relationship without liability is not consistent with the concept of

independent contract, under which the contractor should have the legal right to

complete the project contracted for and to treat any attempt to prevent completion as a

breach of contract ." Larson, supra , § 61 .08 at 61-22. In this case, Appellant was paid

on an hourly basis and did not independently negotiate specific jobs or projects .

Moreover, the evidence clearly implies that Appellee had the right to terminate

Appellant at any time.

       This case is not unlike the facts in Purchase Transp . Services , supra . In that

case, the parties entered into an agreement to lease a cab for the purpose of providing

taxi service. Id . at 817 . In exchange for providing liability insurance, maintenance, and

licenses for the leased cab, the worker agreed to be responsible for "personal, medical,

and any other desired insurance ." Id. In the course of determining that the worker was

an employee and not an independent contractor, the Court specifically found that

"[a]Ithough the parties agreed that the decedent was an independent contractor, [the

employer] set the decedent's schedule ; it dispatched all her calls ; [and] it set the rates

she could charge to customers ." Id . at 819 (emphasis added); see also , Brewer v.

Millich , 276 S .W .2d 12 (Ky. 1955) (Millich, a cutter, was an employee for compensation
purposes even though he had several of his own employees, and had signed a contract

which declared him to be an independent contractor and which specified a quantity of

work to be completed by a specified date) . This case is similar in the fact that Appellee

set Appellant's schedule, determined the extent and scope of Appellant's work, and set

the rate in which Appellant would be compensated . Neither Appellant nor Appellee has

denied that he made this arrangement for financial consideration or suggested that

Appellant's work would have been substantially different if he had chosen to take on the

work under the label of employee.

      As it was said and done in Brewer, supra , this case calls for the Court to "look to

the substance [of the agreement] rather than the shadow ." Id . at 16. Under these

circumstances, contract labor does not equate to independent contractor. An

employment relationship was created and existed . Virtually, Appellant may be

independent . In reality, he was no more independent than any other at-will employee in

Kentucky. Accordingly, I dissent.
