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Worker’s Compensation Board fnds
exercise rider not an employee
By Lisa Hollister, Esq.
Most governmental decisions such as whether an em-
ployee is entitled to worker’s compensation are made by an
Administrative Law Judge (ALJ) not the courts. The rules
governing ALJ decisions are a relaxed version of those
governing the courts. In worker’s compensation cases a
major issue is whether the individual is an employee or an
independent contractor. If they are an employee they are
covered by worker’s compensation. Whereas, if they are
an independent contractor they are not covered. This was
the crucial issue in the case of Gogel v. Hancock, 2011 CA-
001143-WC (KYCA)
Don Gogel worked in the horse racing industry as a train-
er, groom and/or exercise rider for 25 years. At the time of
his injury, his only horse related work was riding horses for
John Hancock. However, Gogel’s relationship with Han-
cock was not exclusive and he was free to ride for other
trainers. Under this relationship either Hancock or one of
his assistants would give Gogel instructions regarding the
specifc type of workout for each horse. Additionally, Gogel
had the right to refuse to ride a horse; but he only did so
when the horse had a physical problem that might be ag-
gravated by exercise. Hancock did not take any withhold-
ing from Gogel’s pay and Gogel received an annual IRS
1099 Form from Hancock. In November of 2009, Gogel
suffered an injury when the horse he was going to exercise
pulled back, sat and rolled onto its side and on Gogel’s
left leg resulting in Gogel fracturing his leg and undergoing
several surgeries to repair the damage.
At the time of the accident Gogel had health insurance
through his fulltime employer which he lost after the acci-
dent along with his job. As a result, Gogel sought payment
for his medical expenses from Hancock and when Hancock
failed to make those payments, Gogel fled a claim against
both Hancock as defendant/employer and the Kentucky
Uninsured Employers’ Fund (UEF). The Defendants as-
serted that Gogel was an independent contractor not an
employee and as such Gogel was not owed any funds un-
der a worker’s compensation claim.
Administrative Law Judge Decision
At a hearing before an Administrative Law Judge (ALJ) it
was determined that Gogel was an independent contractor
and his claim was dismissed based on the ALJ’s fnding
that Hancock only had minimal control over the details of
how Gogel was to exercise Hancock’s horses. The ALJ
also found that Gogel’s freedom as to his hours was also
an important reason for the decision. This decision was
appealed to the Worker’s Compensation Appeal Board and
affrmed and then appealed to the Courts.
Appeal of the Administrative Decision
The Plaintiff appealed the Administrative decision to the
Courts. Gogel argued that the ALJ and the Board of Ap-
peals wrongfully focused on the lack of control Hancock ex-
ercised over the details of Gogel’s riding in making the de-
cision. Instead, Gogel argued that the ALJ should have focused
on the nature of the work. Reviewing the guidelines for determin-
ing whether a person is an employee or independent contractor
the Court found that the following are to be considered:
The extent of control which, by the agreement the mas-
ter may exercise over the details of the work;
Whether or not the one employed is engaged in a dis-
trict occupation or business;
The kind of occupation, the reference to whether, in the
locality the work is usually done under the direction of
the employer or by a specialist without supervision;
The skill required in the particular occupation;
Whether the employer or the workman supplies the
instrumentalities, tools and the place of work for the
person doing the work;
The length of time for which the person is employed;
The method of payment, whether by the time or by the
Whether or not the work is part of the regular business
of the employer; and
Whether or not the parties believe they are creating the
relationship of master and servant.
(The above guidelines were listed in the case Radtliff v. Redmon,
396 S.W. 2d 320)
The Appeals Court found that there were several factors which
could support a fnding that Gogel was an employee. Specifcally,
the fact that Hancock provided the horses, saddles, bridles and
other necessary tools for Gogel to perform his work as well as
place where Gogel worked. On the other hand, the Court weighed
the fact that Gogel had signifcant freedom to determine the de-
tails of performance and could come and go as he pleased as well
as having the option of not exercising a horse if he so chose as
well as the freedom to ride for other trainers. Ultimately taking the
above factors into consideration, the Court held that Gogel was
not an employee but rather an independent contractor.
If you are hiring individuals which you would prefer not to con-
sider to be employees because you are not providing them with
worker’s compensation benefts, you should take a moment to
consider whether your state would ultimately consider them to be
employees rather than independent contractors. If there is a good
chance that they would be considered
employees you should make sure to have
adequate coverage through your state’s
Worker’s Compensation Bureau. If they
are independent contractors make sure
you have adequate private insurance in
the event there is an injury.
Lisa Hollister is an attorney practicing
in Cincinnati, Ohio. Questions for Ms.
Hollister’s column can be addressed to