Gilbert v. Gilbert Timber Co. ( 1986 )

Tom Glaze, Judge.

Appellant, the owner of appellee-employer, appeals from a Workers’ Compensation Commission decision which reversed the administrative law judge’s award of benefits on the basis that appellant had failed to file a written notice that he intended to be included in the definition of an employee for the purposes of coverage under the Workers’ Compensation Act. For reversal, appellant contends that he was not statutorily required to file such notice. We affirm.

At the hearing, the parties stipulated that appellee-employer is a sole proprietorship. Appellant was injured on January 23, 1985, when a tree limb fell, striking him on the head. At the time of the injury, a Workers’ Compensation policy issued by CIGNA to appellee-employer was in effect. At issue before us is whether appellant, as owner, was covered under the policy.

Appellee contends that appellant was not covered because he failed to comply with Ark. Stat. Ann. § 81-1302(b) (Supp. 1985), which provides, in pertinent part:

The term “employee” shall also include a sole proprietor or a partner who devotes full time to the proprietorship or partnership and who elects to be included in the definition of “employee” by filing written notice thereof with the Division of Worker’s [sic] Compensation.

The notice required under § 81 -1302(b) is filed with the Commission on a form known as an A-18. Appellant never filed an A-18, either at the time of or subsequent to the issuance of the policy. However, he contends that he was not required to file the form because of the following language contained in Ark. Stat. Ann. § 81-1320(a) (Supp. 1985):

Provided, however that any officer of a corporation or self-employed employer who is not a subcontractor and who owns and operates his own business may by agreement or contract exclude himself from coverage or waive his right to coverage or compensation under the Act. [Emphasis added.]

Therefore, under § 81-1302(b), a “sole proprietor” must file written notice with the Commission to be included in the definition of an “employee,” while under § 81-1320(a), a “self-employed employer” may agree or contract to exclude himself from coverage. Both parties’ arguments in this case are, to a considerable extent, premised on the notion that there is a conflict in the statutes. However, in construing seemingly contradictory statutes, it is our duty, so far as practical, to reconcile different provisions so as to make them consistent, harmonious, and sensible. Southern Wooden Box Co. v. Smith, 5 Ark. App. 14, 631 S.W.2d 620 (1982). Here we simply fail to find a conflict, and we make this assessment on a fundamental basis, viz., the terms “sole proprietor” and “self-employed employer,” as used in the Workers’ Compensation Act, are neither synonymous nor interchangeable.

Our research reveals only two cases which have applied §81-1320(a) since it was added by the General Assembly in 1971 Ark. Acts 162. They are Prudential Insurance Co. of America v. Jones, 1 Ark. App. 51, 613 S.W.2d 114 (1981), and Queen v. Royal Service Co., 6 Ark. App. 149, 645 S.W.2d 343 (1982). In both cases, the employers were corporations in which the appellants and their wives owned all of the stock. In no case has the pertinent language of § 81-1320(a) been applied to anything other than a corporation.

We conclude that § 81-1320(a) clearly applies only to corporations, and therefore, “self-employed employers” must be corporate officers. To interpret it otherwise would result in an ambiguity. The supreme court has held that it is permissible to read the word “or” as “and” when the context in which it is used requires that it be done to effectuate a manifest intention or when not to do so would render the meaning of the clause ambiguous or result in an absurdity. Pickens-Bond Construction Co. v. North Little Rock Electric Co., 249 Ark. 389,459 S.W.2d 549 (1970). Here, the obvious intention is that § 81-1320(a) apply to persons who are both officers of corporations and self-employed employers.

In the instant case, it was stipulated that appelleeemployer is a sole proprietorship. We therefore hold that § 81-1302(b) is applicable, and that appellant was required to file an A-18 to be included within the definition of an “employee” under the Act. Since he did not do so, he is not covered, and we must affirm the Commission.

Affirmed.

Cracraft, C.J., and Cooper, J., agree.

Rehearing Denied November 26, 1986

719 S.W.2d 284

Per Curiam.

Rehearing is denied.

Cracraft, C.J., concurs.

Cloninger, Corbin, and Mayfield, JJ., would grant rehearing.