NOT TO BE PUBLISHED

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

MEMORANDUM OPINION OF THE COURT

Appellant, Don Gogel, appeals from the dismissal of his workers' compensation claim. Gogel argues that the Administrative Law Judge, Workers' Compensation Board, and the Court of Appeals all erroneously found that he was injured while working as an independent contractor, and therefore ineligible for benefits. For the reasons set forth herein, we affirm the Court of Appeals.

Gogel was injured while exercise riding a thoroughbred horse at the request of John Hancock.1 Gogel received ten dollars from Hancock for every horse he exercised. At the end of each year, Hancock would issue an Internal Revenue Service Form 1099 reporting the total amount he paid Gogel. Gogel understood that Hancock did not withhold any taxes from the amount he was paid. Gogel in turn would report the income he received from Hancock like a business, and as such, deducted expenses such as mileage and clothing from the exercising-riding income.

Prior to his injury, Gogel exercised horses not only for Hancock, but also for several other trainers, and had a full-time job at a factory. Gogel exercised horses in the morning and was free to come and go from the training facility as he pleased. Prior to exercising a horse, Gogel would receive instructions from a trainer, one of the trainer's assistants, or from a chart which noted what exercises needed to be performed (breezing, galloping, or jogging). However, Gogel could refuse to ride a horse if he believed exercising would injure it.

After his injury, Gogel lost his full-time job and his health insurance. Gogel then sought payment from Hancock for the medical bills incurred as a result of his injury. When Hancock did not pay those bills, Gogel filed for workers' compensation benefits, naming Hancock as the employer. Since Hancock did not carry workers' compensation insurance as required by law, the Uninsured Employers' Fund ("UEF") was added as an additional defendant.

Both Hancock and the UEF asserted that Gogel was an independent contractor when injured and therefore ineligible for workers' compensation benefits. Gogel disagreed and presented evidence that before the injury Hancock carried workers' compensation insurance (which was later cancelled for economic reasons) and listed six unnamed employees to be covered under the plan. Gogel contended that he was covered under the plan, and as such Hancock considered Gogel to be an employee. Hancock, however, argued that the six employees listed were family members of his and that he never represented to Gogel that he was an employee.

Following a hearing, the ALJ found that Gogel was acting as an independent contractor when he was injured, and dismissed his claim for benefits. The ALJ based his ruling on Ratliff v. Redmon, 396 S.W.2d 320 (Ky. 1965) and Chambers v. Wooten's IGA Foodliner, 436 S.W.2d 265 (Ky. 1969) which established the factors used to determine whether an individual is an employee or independent contractor. Using those factors, the ALJ held that:

Gogel appealed the dismissal of his claim for benefits to the Workers' Compensation Board arguing that the ALJ placed too much emphasis on Hancock's lack of control over his work. Gogel also argued that the ALJ should have focused on the nature of the work performed instead of the control Hancock had over him. Despite these arguments, the Board affirmed the ALJ finding that he "sufficiently weighed each of the factors against the evidence as set out in Ratliff ... and his conclusions are supported by substantial evidence." The Court of Appeals affirmed the Board.

Gogel now appeals to this Court making the same basic argument — that the ALJ, the Board, and the Court of Appeals all over emphasized the fact that Hancock did not exercise great control over his work activities. Gogel does not dispute the factual findings of the ALJ, but that the law was misapplied to those facts.

The factors for determining whether a person is an employee or independent contractor are as follows:

Ratliff, 396 S.W.2d at 324-325. Several years later, Chambers, 436 S.W.2d 265, clarified which Ratliff factors were the most important in determining whether an individual was an independent contractor. "While many tests are appropriately considered, we think the predominant ones encompass the nature of the work as related to the business generally carried on by the alleged employer, the extent of control exercised by the alleged employer, the professional skill of the alleged employee, and the true intentions of the parties." Id. at 266; see also Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 118-119 (Ky. 1991).

Reviewing the record in light of the above factors supports the conclusion that Gogel was an independent contractor. While there are some facts to support Gogel's argument — Hancock did provide the location and many of the tools necessary for Gogel to perform his work and exercising horses is a regular part of Hancock's business as a trainer — the majority of the evidence points to him being an independent contractor. These facts include: that Hancock only provided general instructions on the type of work he wanted performed; that Hancock did not supervise Gogel's work closely; that Gogel had significant freedom to perform the work as he desired; that Gogel was free to create his own work schedule; that exercising horses takes a specific skill set which Gogel possessed; that Gogel was licensed to exercise horses by the Commonwealth and frequently worked for other trainers; that Hancock did not withhold any taxes from his payments to Gogel; and that Gogel treated the income from Hancock as business income. Based on these facts, we cannot hold that the ALJ misapplied the law to the facts by finding Gogel was an independent contractor. See generally Munday v. Churchill Downs, Inc., 600 S.W.2d 487 (Ky.App. 1980) (holding that a jockey who was paid by the race and who solicited multiple trainers for mounts did not become an individual trainer's employee merely because that trainer gave pre-race instructions to the jockey).

Gogel further argues that if the relationship between himself and Hancock was reviewed according to the "nature of the work theory," it would lead to a conclusion that he was Hancock's employee. However, the nature of the work performed is one of the factors to be considered in both Ratliff and Chambers. As such, the nature of the work Gogel performed for Hancock was considered as part of our conclusion.

Gogel also argues that even if he is considered an independent contractor, public policy mandates that he should receive workers' compensation benefits. He cites to 810 KAR 1:008 Section 3(2) which states that trainers, such as Hancock, "shall carry workers' compensation insurance covering his employees in connection with racing as required by KRS Chapter 342." Gogel argues that this provision exists to protect horse racing tracks from lawsuits caused when an exercise rider gets injured at their facility and as such, it is the General Assembly's intent to cover exercise riders by workers' compensation. However, this administrative regulation is inapplicable to Gogel because he is not an employee, but an independent contractor. If the General Assembly desires that independent contractors serving as horse exercise riders be covered under our workers' compensation scheme then it has the authority to pass such a regulation. Instead, when given the chance to pass a law which would have specifically designated exercise riders as employees of their trainer (and thus receive workers' compensation coverage) the General Assembly declined. See Ian C.B. Davis, An Analysis of Horse Racing Jockeys Riding under Kentucky Workers' Compensation Laws, 97 Ky.L.J. 173 (2008-2009).

The decision of the Court of Appeals is affirmed.

Minton, C.J.; Abramson, Cunningham, Noble, Scott, and Venters, JJ., sitting. All concur.