IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

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ACTION. 
U IN 11, ZU 10 

NOT TO BE PUBLISHED 

oSuprrittr Court of ti,firttfuritv 

2014-SC-000569-WC 

BILL HUNTSMAN SR. D/B/A HUNTSMAN 86 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 86 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.' After Appellee, Uninsured Employer's Fund 

("UEF"), settled with Manning and the ALJ 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 AI,J.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 ALJ 

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 2and UEF as Defendants. On 

1803 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. 

2On 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 & Sons Painting. On 

March 23, 2010, the DWC certified that Bill Huntsman did not have workers' 

compensation coverage on the alleged injury date. 
November 25, 2009, the DWC certified that Huntsman 85 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. Ina December 10, 2009, telephone 

conversation, 3Mr. 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 ALJ 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 

3Before that, Mr. Huntsman had spoken with Roger Swift at the UEF. 

4At 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." 

5Mr. 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 85 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 6and 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 

6KRS 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. 

4 
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, otherwiSe 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). 7Citing Gray v. Trimmaster, 173 S.W.3d 236 

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

cause which Huntsman had failed to demonstrate. The ALJ determined that no 

7KRS 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 AL I 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 AL_J 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 workrelated 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. Morris, 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. 9The ALJ had jurisdiction by virtue of KRS 

342.325. 10Huntsman 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. 

9Manning notes that he appropriately filed a Form 101 given the precedent in Coin., 

Office of Jefferson Cnty. Clerk o. 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. 

10KRS 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 86 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 

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