MARK W. RUBY, 
Employee, 
Applicant
v. 
WU GEN INVESTMENTS,
(Un-Insured),
Employer,
Defendant(s).

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FINAL
DECISION AND ORDER
AWCB Case No. 1999020971
AWCB Decision No.00-0060
Filed with AWCB Anchorage, Alaska
On March 31, 1999

We heard the employee’s petition for referral to the District Attorney’s Office on the written record at Anchorage, Alaska, on March 21, 2000. Attorney Randall S. Cavanaugh represented²the employee. The employer did not respond in writing or otherwise contact the Board regarding this issue. Although we have no record of an entry of appearance, it appears the employer is represented or assisted by attorney Gregory Oczkus. The record closed on March 21, 2000. We proceeded as a two-member panel which constitutes a quorum. AS 23.30.005(f).

Whether to refer this case to the District Attorney’s Office.

The employee was hired by Michael Kershaw, the employer’s owner, as a sheet rock installer renovating apartment buildings that were not up to code. On February 18, 1999, the employee stepped on a screw which penetrated his work boot and pierced his foot. The employee sought medical attention that day at an emergency room. Nonetheless, the employee subsequently contracted a serious infection which required several surgeries. At one point, amputation of the infected foot was contemplated.

Mr. Kershaw’s deposition was taken on March 7, 2000. At page 7 he testified that he and his wife were the sole owners of the apartment complex, a commercial property. He regularly hired people to work on his buildings. (Id. at 9). At the time of the employee’s injury he did not have workers’ compensation insurance. (Id. at 9). He paid the employee $25.00 per hour. (Id. at 13). He did not advise the employee that he did not carry workers’ compensation insurance. (Id. at 16). He paid the employee in cash and believes he still owes him wages. (Id. at 19). He did not deduct taxes or anything else from the employee’s wages. (Id. at 23). Mr. Kershaw provided the employee with any tools he needed to perform his work. (Id. at 25 - 26).

Mr. Kershaw responded as follows when asked why he didn’t carry workers’ compensation insurance: "I’ve had a lot of people work for me over the past several years, and it was probably an error on my part. I’ve never had a problem with a person working on my property or any other properties in reference to workmen’s compensation." (Id. at 21 - 22). Mr. Oczkus stated he believes the workers’ compensation debts were discharged in Mr. Kershaw’s recent bankruptcy proceedings. (Id. at 54).

In his brief, the employee argued:

The employee argues, as a matter of public policy, that we must refer this matter for criminal prosecution to send a message to this, and other, uninsured employers of the importance of carrying workers’ compensation insurance. In this case, the employer is a sophisticated businessman. Due to his failure to insure, the employee has not received any payment for his medical expenses or compensation during his disability.

On March 20, 2000 the employee filed a list of names from Mr. Oczkus which lists 32 people Mr. Kershaw employed at the time the employee was injured. The list includes sheet rockers, laborers, supervisors, cleaners, carpenters, painters, carpet installers, electricians, and plumbers.

AS 23.30.045(a) provides in pertinent part: "An employer is liable for and shall secure the payment to employees of the compensation payable [under this chapter]." AS 23.30.075 provides:

Based on Mr. Kershaw’s deposition and the employee’s testimony through his arguments, we find Mr. Kershaw, d/b/a Wu Gen

Investments, was the employee’s employer. We also find he failed to secure workers’ compensation insurance for any of his workers. Based on his admissions, we find ample evidence exists to refer this matter to the District Attorney’s Office. (See, Lopez v. Nabors Alaska Drilling, Inc. AWCB Decision No. 00-0052 (March 20, 2000); Dougan v. Aurora Electric, Inc., AWCB Decision No. 99-0113 (May 14, 1999)). However, we find we shall direct Workers’ Compensation Officer, Joireen Cohen, our uninsured employer investigator, to prepare a file to forward to the District Attorney’s Office. The employee’s petition is granted. This matter shall be referred after preparation by our investigator.

This matter shall be forwarded to the District Attorney’s Office after preparation by our uninsured employer investigator.

Dated at Anchorage, Alaska this 31^st day of March, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Darryl Jacquot
Darryl Jacquot, Designated Chairman

/s/ Philip E. Ulmer
Philip Ulmer, Member

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of MARK W. RUBY employee / petitioner; v. WU GEN INVESTMENTS (Uninsured) employer / respondant; Case No. 199902097; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 31st day of March, 2000.

Debra C. Randall, Clerk