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Kunkle v. State4/14/2005
which was used to fax Mr. Kunkle's W-2 form to Utah. Further, the Division conceded at oral argument that most mail in Jackson is delivered to post office boxes and Demler maintained such a box.
[ ] Lastly, Section 4(t)(iv) of the Division's rules, requiring that "the business regularly conducts its primary business or necessary ancillary services at the fixed premises," was satisfied by the testimony that Demler employed a secretary at the trailer site, W-2 forms were faxed to Utah from the trailer, and Mr. Kunkle was hired at the trailer site. While Demler obviously did not conduct its "primary" business, that of masonry, at the trailer, "necessary ancillary services" including the administration of the business were unmistakably conducted at the trailer site.
[ ] The only factual findings made by the hearing examiner were that Demler was working on a job in Teton County expected to last a year, had a trailer at the jobsite that they used as an office, and received mail at a post office box in Jackson. On the basis of those limited findings, the hearing examiner concluded, as a matter of law, "Demler was not an employer principally located in Wyoming" and Mr. Kunkle should not receive workers' compensation benefits. While the hearing examiner's limited factual findings are supported by substantial evidence, they do not support the conclusions of law which purportedly rely upon them. We have stated:
"When an agency's determinations contain elements of law and fact, we will not treat them as findings of fact. We extend deference only to agency findings of 'basic fact.' When reviewing a finding of 'ultimate fact,' we divide the factual and legal aspects of the finding to determine whether the correct rule of law has been properly applied to the facts. If the correct rule of law has not been properly applied, we do not defer to the agency's finding but correct the agency's error in either stating or applying the law."
Tollefson v. Wyo. State Ret. Bd., 2003 WY 150, ,79 P.3d 518, (Wyo. 2003) (citation omitted).
[ ] The hearing examiner's conclusions erroneously characterize the statute as requiring the employer, as opposed to the employment, to be principally located in Wyoming. In a demonstration of similarly imprecise and misleading use of language, the Division's brief suggests the statute requires that the employer conduct "its primary business" in Wyoming. The clear requirement of the statute is simply that the "employment be principally localized" in Wyoming and that occurs when an employer has a (not the) principal place of business within the state established for legitimate business-related purposes and the employee regularly works at or from that place of business. The uncontested evidence Mr. Kunkle presented met that standard.
[ ] Although not mentioned in the hearing examiner's findings and conclusions, the Division's determination to reject Mr. Kunkle's claim also referred to the employer's election not to obtain coverage as a basis for its ruling. While this issue is not directly before us, we note that a non-resident employer has certain obligations pursuant to the statute including to provide certain reports to the division and to file a surety bond. Wyo. Stat. Ann. § 27-14-302 (LexisNexis 2003). In addition, no contract is to be let to a nonresident employer for work in the state until worker compensation contributions have been made. Wyo. Stat. Ann. § 27-14-303 (LexisNexis 2003). The only non-resident employer that is exempt from the act is a primarily itinerant worker with no fixed base of operations in the state as provided in Wyo. Stat. Ann. § 27-14-108(g)(iv) (LexisNexis 2003). Further, the statute provides that employe
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