             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
 DECISION IN THE FILED DOCUMENT AND A COPY OF THE
 ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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                                                  RENDERED: JUNE 11, 2015


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                             2014-SC-000569-WC

                                                     DAT E --         a-L   E u,k4sno.uoet--,D..c
                                                                            —




BILL HUNTSMAN SR. D/B/A HUNTSMAN &                                  APPELLANT
SONS PAINTING


                ON APPEAL FROM COURT OF APPEALS
V.                  CASE NO. 2012-CA-001879-WC
           WORKERS' COMPENSATION BOARD NO. 09-WC-01334


JOE MANNING; UNINSURED EMPLOYERS'                                  APPELLEES
FUND; HONORABLE CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

                              I.    INTRODUCTION

      Appellee, Joe Manning ("Manning"), worked for Appellant, Bill Huntsman

d/b/a Huntsman & Sons Painting ("Huntsman") as a painter. On June 9,

2009, Manning was injured while working at Huntsman's residence, removing

brush/storm debris. Huntsman did not have workers' compensation

insurance on the subject injury date. Manning subsequently filed an

Application for Resolution of Claim ("Form 101") with the Department of

Workers' Claims ("DWC") alleging that he was injured in the course of his

employment with Huntsman. Huntsman failed to timely file a Notice of Claim

Denial or Acceptance ("Form 111"); consequently, the allegations of Manning's
Form 101 were deemed admitted. 1 After Appellee, Uninsured Employer's Fund

("UEF"), settled with Manning and the ALA approved the settlement, Huntsman

moved to reopen on grounds of fraud. The ALJ reopened and abated the

settlement, passing final resolution to the merits. After the taking of proof and

a formal hearing, the ALJ concluded that there was no fraud, and that the

settlement between Manning and UEF was valid and enforceable. Huntsman

appealed. The Board dismissed the appeal as interlocutory, because the ALJ

had not yet resolved Manning's claim against Huntsman. On remand, the AI,J

entered an award in Manning's favor. Huntsman appealed. UEF did not. The

Board and the Court of Appeals affirmed. On appeal to this Court, Huntsman

argues that the DWC lacked subject matter jurisdiction and that the settlement

should be set aside on the basis of fraud. Finding no error, we affirm.

             A. Proceedings before the ALJ and Appeals to the Board

         On November 23, 2009, Manning filed a Form 101 alleging that he was

injured on June 10, 2009, in the course and scope of his employment.

Manning named Huntsman & Sons Painting 2 and UEF as Defendants. On


1   803 KAR 25:010 §5(2) provides in relevant part:
(a) The defendant shall file a Notice of Claim Denial or Acceptance on a Form 111
within forty-five (45) days after the notice of the scheduling order ....
(b) If a Form 111 is not filed, all allegations of the application shall be deemed
admitted.
2 On February 8, 2010, UEF filed a "Motion to Amend Name of Defendant-Employer/
Motion to Certify Coverage," after their (UEF's) investigation determined the business
was a sole proprietorship. By Order of March 3, 2010, the ALJ amended the name of
the Defendant-Employer to Bill Huntsman d/b/a Huntsman 86 Sons Painting. On
March 23, 2010, the DWC certified that Bill Huntsman did not have workers'
compensation coverage on the alleged injury date.


                                             2
November 25, 2009, the DWC certified that Huntsman 86 Sons Painting did not

have workers' compensation insurance on the alleged injury date.

         The DWC investigated. The investigative report reflects that Huntsman's

business address was a residence. In a December 10, 2009, telephone

conversation, 3 Mr. Huntsman told the enforcement officer he had no

employees, and that Manning was an independent contractor (for the painting

business). Mr. Huntsman explained he was on vacation at the time of the

subject injury. Mr. Huntsman related that he had told Manning if he wanted to

earn some money, he could remove tree debris at his property. Manning fell

from a ladder while clearing up the property. On December 11, 2009, Mr. '

Huntsman met with the enforcement officer in her office. 4

         On December 15, 2009, the DWC issued a scheduling order assigning

the claim to MO Davis and setting a Benefit Review Conference ("BRC") for

April 13, 2010. The order states that defendants have 45 days to file "a notice

of claim denial or acceptance (Form 111). If none is filed all allegations of the

application shall be deemed admitted." Huntsman did not timely file a Form

111. 5



3   Before that, Mr. Huntsman had spoken with Roger Swift at the UEF.
4 At hearing, Mr. Huntsman testified that he met with the enforcement officer, Billie
Buckley, who told him• his business was officially closed down. "That I could work but
nobody else could work, but - that if she caught me working anyone or whatever that
there would be a large fine put on me." According to Mr. Huntsman, he subsequently
"got insurance and then brought the thing back to her and she said you're free to
work."
5 Mr. Huntsman testified that he received the scheduling order. The 45 days expired
on January 29, 2010.


                                           3
      UEF settled with Manning. On April 28, 2010, ALJ Davis approved the

settlement ("Form 110").

      On May 5, 2010, attorney Jack Richardson, IV, filed an entry of

appearance on behalf of Mr. Bill Huntsman d/b/a Huntsman & Sons Painting.

On May 11, 2010, Huntsman filed a "Petition for Reconsideration of and/or

Setting Aside of Settlement and Order" which the ALJ denied by Order of May

28, 2010.

      On June 14, 2010, Huntsman filed a Motion to reopen pursuant to KRS

342.125 on grounds of fraud, because Manning was "claiming a work injury

against a party for whom he was not working ... [and that he was not] in the

course of employment at the time of the alleged injury...." Huntsman asserted

Manning was engaged in domestic work exempt under KRS 342.650 6 and that

the "Board [sic], is without jurisdiction to approve a settlement for injury of a

domestic worker." Huntsman also alleged that the average weekly wage was

false. By Order of July 6, 2010, the ALJ reopened the matter, abated the

settlement and allotted proof time, passing final resolution of'Huntsman's

motion to the merits.

      Mr. Huntsman testified by deposition and at the hearing. He testified

that he had received the December 15, 2009 scheduling order. He explained



6 KRS 342.650 provides in relevant part:
The following employees are exempt from the coverage of this chapter:
(1) Any person employed as a domestic servant in a private home by an
employer who has less than two (2) employees each regularly employed forty
(40) or more hours a week in domestic servant employment.
the address for his residence and business are the same. Mr. Huntsman also

testified that he had asked Manning to pull tree, limbs down to the drive so they

could be collected by Metro Louisville's deadline for picking up storm damage

debris. Mr. Huntsman explained that it helped him out, otherwie he would

have had to do it himself which would have taken up his vacation.

       In an Opinion, Award & Order rendered August 12, 2011, the ALJ

provided a detailed summary of the evidence and determined that:

              Bill Huntsman, as the employer, was fully aware of the
              pending nature of this claim, and had received
              numerous communications from the Plaintiff's
              attorney and the UEF prior to the settlement
              agreement and that he was never, at any time, refused
              his right to be heard nor was he discouraged or
              effectively silenced in his pursuit of his right to be
              heard. Rather, Bill Huntsman, willfully or through his
              own neglect did not seek to become an effective party
              to this claim and have the settlement agreement set
              aside until he became aware that he might not be able
              to avoid some liability for this claim.

       The ALJ noted that the defenses of independent contractor and

employment relationship are commonplace, and that Huntsman had waived

those defenses by failing to timely file a Form 111 within 45 days of the

scheduling order, KRS 342.270(2). 7 Citing Gray v. Trimmaster, 173 S.W.3d 236

(Ky. 2005), the AI.,J explained that the only exception to the 45-day rule is good

cause which Huntsman had failed to demonstrate. The AI,J determined that no




7 KRS 342.270(2) provides in relevant part: "Within forty-five (45) days of the date of
issuance of the notice required by this section, the employer or carrier shall file notice
of claim denial or acceptance, setting forth specifically those material matters which
are admitted, those which are denied, and the basis of any denial of the claim."

                                             5
fraud was committed. The ALJ noted that one of the few things upon which the

parties could agree was that at the time of the injury, Manning was working for

Huntsman. The ALJ did not believe Manning was aware of the distinction in his

status as a painter versus a brush remover, noting Manning's testimony that

he simply knew he was working for Huntsman, which in the lay sense was

correct. The ALJ dismissed Huntsman's motion to reopen for fraud and held

that the April 28, 2010 settlement agreement was valid and enforceable.

      Huntsman appealed to the Workers' Compensation Board ("Board"). By

Opinion and Order rendered December 28, 2011, the Board dismissed

Huntsman's appeal. The Board concluded that the ALJ's decision was

interlocutory, because it only "found the settlement agreement to be valid and

enforceable. The ALJ has yet to resolve Manning's claim against Huntsman."

      The Board explained that "[i]n resolving Manning's claim against

Huntsman, the ALJ is not bound by the settlement ... between the UEF and

Manning." The Board noted KRS 342.125(7) which provides "no statement

contained in the agreement, whether as to jurisdiction, liability of the employer,

nature and extent of disability, or as to any other matter, shall be considered

by the [ALJ] as an admission against the interests of any party." The Board

instructed the ALJ to enter a "separate opinion ruling on the merits of

Manning's claim against Huntsman. If the ALJ enters an award in favor of

Manning, ... [he] must grant the UEF a right of recovery to the extent of its

payment of income benefits and medical benefits awarded by the ALJ."




                                        6
      On May 9, 2012, the ALJ rendered an Opinion, Award and Order on

remand. The ALJ explained that in the original Opinion he found that no fraud

had occurred, that the Form 111 was not timely filed, and that the settlement

between Manning and UEF was valid and enforceable; therefore, the only

remaining issue was extent and duration of disability. The ALJ noted Dr.

Bilkey's uncontroverted opinion; further, that Huntsman had sent Manning to

Dr. Gleis for an IME, but had not filed his report. The ALJ did not believe Mr.

Huntsman's (or his son's) testimony:

            [They] would have the undersigned and potential
            appellate bodies believe that they, and only they, have
            ever told anything resembling the truth and that they
            were not provided notice of the claim nor given a
            chance to defend against it until it was too late. This
            position can only be maintained if the UEF
            investigator, the UEF attorneys, and the ALJ are all
            liars. I believe they have done all of this not only with a
            premeditated eye toward ... defeating this claim but,
            more importantly, ... to extending this claim so as to
            position themselves to avoid any direct liability for it.

      The ALJ awarded Manning permanent total disability ("PTD") benefits at

the rate of $426.67 per week based upon an average weekly wage ("AWW") of

$640.00 and medicals. The award reflects that the UEF's liability "shall be fully

discharged when the sums agreed upon in the Form 110 ... are paid[,]" even if

Huntsman fails to pay any additional sums as awarded in the ALJ's Opinion.

"[T]he UEF retains any and all rights to recovery, from Bill Huntsman, for sums

paid to [Manning] now or in the future."

      Manning filed a petition for reconsideration to clarify the award of

medicals. Huntsman also filed a petition, asserting, inter alia, that the ALJ


                                         7
erred in calculating the AWW. By Order of May 29, 2012, the ALJ granted

Manning's Petition; by Order of June 4, 2012, the ALJ denied Huntsman's

petition. Huntsman appealed to the Board which affirmed by Opinion rendered

September, 28, 2012:

                 Huntsman's assertions that the ALJ somehow
           misconstrued both the law and the facts presented are
           simply untrue. The ALJ found Manning committed no
           fraud, as was his prerogative, and believed Manning's
           version of the facts ... was more accurate than the
           version presented by the Huntsmans. [S]ubstantial
           evidence exists to support the ALJ's determination
           Manning did not engage in fraudulent activity.

     The Board explained that:

                    Huntsman made no attempt to file a Form 111
            until ... long after the time provided by statute,
            regulation, and scheduling order. .... On appeal,
            Huntsman argues it was deprived of due process.
            Since it failed to avail itself to the procedures set forth
            above, we find Huntsman was deprived of neither
            substantive nor procedural due process.


                   Huntsman argues the ALJ impermissibly
            exercised jurisdiction over this claim, and it can raise
            such issue at any time. Manning filed a Form 101
            alleging a work-related injury, and this filing brings
            the claim under the purview of the Department of
            Workers' Clams and confers jurisdiction upon the ALJ
            to decide all matters. Huntsman could have timely
            raised issues of work-relatedness, jurisdiction, and
            KRS 342.650 before the ALJ, but failed to do so. Even
            then, a mere allegation or assertion of a defense does
            not equate to a finding. ...

                   Huntsman's arguments pertaining to the UEF's
            settlement of the claim are groundless and without
            merit.


                                         8
                        B. Appeal to the Court of Appeals

      On October 29, 2012, Huntsman filed a Petition for Review in the Court

of Appeals which affirmed by Opinion rendered August 22, 2014:

                   As Huntsman correctly notes, defects in subject
             matter jurisdiction may be raised by the parties or the
             court at any time and cannot be waived.
             Commonwealth Health Corp. v. Croslin, 920 S.W.2d 46,
             47 (Ky.1996). However, while Huntsman may raise
             subject matter jurisdiction, there are no facts to
             substantiate his argument. By failing to timely submit
             a Form 111, Huntsman admitted the facts in
             Manning's Application .... [that he] sustained a work-
             related injury to his right foot during the course of his
             employment. ...

                     Relying on Partin's Adm'r v. Black Mountain
             Corp., 36 S.W.2d 1 (Ky.1930), and Eastern Coal Corp.
              v. Mon -is, 287 S.W.2d 603 (Ky.1956), Huntsman
             argues parties cannot stipulate jurisdiction. These
             cases, however, can be distinguished from the instant
             matter. [ 8] The parties in Partin's Adm'r and Eastern
              Coal stipulated they were operating under the
             provisions of the Act. In both cases,      the facts
             revealed the Department did not have subject matter
             jurisdiction. Therefore, the Court held the stipulation
              ... was not binding.

                   Lastly, Huntsman argues Manning procured the
             settlement agreement by fraud by misrepresenting his
             average weekly wage (AWW). As a result, Huntsman
             alleges the UEF has no right to recover from him. We
             disagree.


8Those cases were decided under a different statutory scheme. The prior statute
required the employer and the employee to have affirmatively accepted the provisions
of the (then) workmen's compensation law. In those cases, the parties' stipulations
could not confer jurisdiction, because it never existed in the first place due to an
absence of acceptance of the Act. By contrast, under the current statutory scheme, "[a]
worker who does not affirmatively reject coverage under Chapter 342 is deemed to
have accepted it. KRS 342.395." Adkins v. R & S Body Co., 58 S.W.3d 428, 430 (Ky.
2001).


                                           9
                   Manning accurately identified his pay rate as
            $16.00 per hour on his Application. The UEF
            conducted a thorough investigation, including
            interviewing witnesses, prior to entering into the
            settlement agreement. The agreed settlement amount
            was not based on a particular AWW, but rather, was
            the product of negotiation between Manning and the
            UEF. Huntsman's claim that the settlement agreement
            was fraudulently obtained based on a
            misrepresentation of Manning's wages is without
            merit.

                  For the foregoing reasons, the opinion of the
            Board is affirmed.

On September 18, 2014, Huntsman filed a Notice of Appeal to this Court.

                                 II. ANALYSIS

      Huntsman argues that the DWC lacked subject matter jurisdiction

because Manning was either a domestic worker, exempt under KRS 342.650(1),

or an independent contractor. "The question of jurisdiction is ordinarily one of

law, meaning that the standard of review to be applied is de novo." Appalachian

Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53 54 (Ky. 2007)
                                                         -




      Huntsman maintains that the Court of Appeals misconstrued the law by

equating the failure to file a Form 111 with "a judicial admission that granted

the Department of Workers' Claims subject matter jurisdiction." Huntsman

misperceives the issue.

      Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360 (Ky. 1994), discusses the

proper analysis. Gordon worked for Norris, a painting contractor. While

working for Norris at NKC's premises, Gordon was injured in a fire. He received

workers' compensation benefits from his employer, and filed an action for

damages in circuit court against NKC. NKC failed to raise the exclusive remedy
                                       10
provisions of the Workers' Compensation Act as a defense in the trial court. On

appeal, NKC argued that the exclusive remedy provision of the Act deprived the

trial court of subject matter jurisdiction, despite its failure to timely raise the

defense. This Court disagreed:

                    This Court's decision in Duncan v. O'Nan, Ky.,
             451 S.W.2d 626 (1970), and cases cited therein,
             provides a proper analysis of subject matter
             jurisdiction under Kentucky law. Among the stated
             principles are that subject matter jurisdiction cannot
             be created by waiver or conferred by agreement; and
             that in general, "subject matter" does not mean "this
             case," but "this kind of case.". Duncan v. O'Nan makes
             it clear that a court is deprived of subject matter
             jurisdiction only in cases "where the court has not
             been given any power to do anything at all." Id. at 631.
             To determine subject matter jurisdiction, the pleadings
             should be taken at face value and so long as the "kind
             of case" identified in the pleadings is within the court's
             jurisdiction, one claiming a legal bar must plead it
             affirmatively....

                    Appellee contends, however, that the jurisdiction
             otherwise possessed by the circuit court was defeated
             or rendered contingent by the possibility of a defense
             under the Workers' Compensation Act. ... In our view,
             this construction of the statute is erroneous for it
             confuses a defensive plea with want of jurisdiction.

                    The statutory provisions upon which appellee
             relies are not self-executing. To have protection of the
             Act, KRS 342.690 requires an employer to secure
             payment of compensation as a condition of benefiting
             from the exclusive liability provision. As the employer
             has this duty and the statute contemplates the
             possibility that it may not be fulfilled in which case
             there is a right to sue (KRS 342.690(2)), ... the
             employer must inform the court of its status as such
             and prove its compliance with the statute....

                   [W]e have no doubt that the matters claimed to
             protect appellee are affirmative defenses which were


                                          11
             required to have been pleaded and proven, the failure
             of which amounts to a waiver. CR 8.03 and CR 12.02.
             Id., 361-63.

       Huntsman confuses a possible defense under KRS Chapter 342 with lack

of jurisdiction. Manning filed a Form 101 alleging that he was injured in the

course of his employment. 9 The ALJ had jurisdiction by virtue of KRS

342.325. 10 Huntsman waived any defenses it could have raised by failing to

timely file a Form 111. Consequently, the allegations of Manning's Form 101

were deemed admitted pursuant to 803 KAR 25:010 §5(2)(b). "Workers'

compensation is a creature of statute, and the remedies and procedures

described therein are exclusive." Williams v. Eastern Coal Corp., 952 S.W.2d

696, 698 (Ky. 1997). As the Board noted, Huntsman failed to avail itself of

those procedures.



9  Manning notes that he appropriately filed a Form 101 given the precedent in Coln.,
Office of Jefferson Cnty. Clerk u. Gordon, 892 S.W.2d 565 (Ky. 1994). We do not
disagree. There the claimant was injured while distributing campaign literature after
hours at her supervisor's direction. The injury was found to be compensable, having
occurred within the scope of employment:
               Larson, The Law of Workmen's Compensation, § 27.40, et.
                seq., ... indicates that ... the apparent authority of a
               supervisor to direct work activities and to fire subordinate
               employees puts the supervisor in a position of being able to
               compel the performance of activities by the subordinate for
               the supervisor's private benefit. Under such circumstances,
               benefit to the supervisor is the equivalent of benefit to the
               employer. Where a worker is injured in the performance of
                such an activity, the worker is entitled to compensation
               benefits, regardless of whether the supervisor lacked actual
               authority to compel the performance. Id.., at 657.
 10 KRS 342.325   provides: "All questions arising under this chapter, if not settled by
agreement of the parties interested therein, with the approval of the administrative law
judge, shall be determined by the administrative law judge except as otherwise
provided in this chapter."



                                           12
       Huntsman argues that Manning fraudulently procured the settlement

by misrepresenting his AWW as $640.00. The Board correctly concluded that

substantial evidence exists to support the ALJ's determination Manning did not

engage in fraudulent activity. The Court of Appeals found no merit to

Huntsman's assertion of fraud based on a misrepresentation of wages with

respect to the settlement. Nor do we. We also note that Huntsman has not

appealed the ALJ's award of PTD benefits which is based upon an AWW of

$640.00. The decision of the Court of Appeals is affirmed.

      All sitting. All concur.




                                       13
COUNSEL FOR APPELLANT:

Jack Logan Richardson IV
Richardson & Richardson, PSC
10345 Linn Station Rd.
Louisville, KY 40223

Justin Drew Clark
Christopher E. Schaefer
Stoll Keenon Ogden, PLLC
2000 PNC Plaza
500 W. Jefferson St.
Louisville, KY 40202


COUNSEL FOR APPELLEE:

Christopher P. Evensen
6011 Brownsboro Park Blvd., Suite A
Louisville, KY 40207

James Robert Carpenter
Assistant Attorney General
Uninsured Employers' Fund
1024 Capital Center Dr., Ste. 200
Frankfort, KY 40601




                                      14
