CLAIM NO. E606002
RICHARD AMMONS, EMPLOYEE, CLAIMANT v. EUA ARK, INC., UNINSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 21, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by CHARLES PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by CURTIS L. BOWMAN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed December 13, 1996 finding that claimant has failed to prove by a preponderance of the evidence that he is an employee of respondent or that he is entitled to workers’ compensation benefits as an employee of respondent’s sub-contractor. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof.
[3] The record reflects that claimant was an employee of Johnny Harris on February 1, 1996, when he received an injury to his right hand as a result of being electrocuted. After sustaining his injury, claimant presented himself to the National Park Medical Center in Hot Springs where he was admitted and received treatment. As a result of claimant’s injury, claimant has undergone four surgical procedures to his right hand.
[4] Although claimant contended at the hearing that he was not an employee of Johnny Harris, but rather of respondent, we find that the record fails to substantiate this contention. The record reflects that claimant had worked for Mike McClain for a period of time. Mr. McClain referred claimant to a job site in Russellville. It is claimant’s testimony that when he went to the job site in Russellville he was working for James Allen whom he believed to be the owner of respondent. It is further claimant’s testimony that while at the job site in Russellville Johnny Harris was merely a co-employee. However, when questioned about who paid claimant for his work at the Russellville job site, claimant testified that Johnny Harris paid him either by way of cash or check. Thus, claimant’s testimony is not clear with regard to his employment relationship. There is no explanation as to why claimant was paid by Mr. Harris if he was not an employee of Mr. Harris, but rather an employee of respondent. If claimant is implying that Mr. Harris was an employee or agent of respondent, such was not proven. After the Russellville job was completed, claimant began working on a job in Magnet Cove. It is claimant’s testimony that while working on the Magnet Cove job either James or Tony Allen were in charge in that they prepared the areas for all light fixtures to be installed. However, the record reflects that while working on the job site in Magnet Cove, claimant continued to be paid by Johnny Harris, not respondent.
[5] Although claimant testified on direct examination that he received one or two checks from Tony Allen, claimant clarified his testimony on cross examination and explained that he only received pay from Tony Allen for one specific job. Mr. Allen paid claimant to transport trash from Russellville to Little Rock. The record is clear that Mr. Allen did not pay claimant to perform services at the Magnet Cove job site installing light fixtures.
[6] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles,
41 Ark. App. 47,
849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold,
265 Ark. 352,
578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. §
11-9-704(c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. §
11-9-704; Wade v. Mr. C Cavenaugh’s,
298 Ark. 363,
768 S.W.2d 521 (1989); and Fowler v. McHenry,
22 Ark. App. 196,
737 S.W.2d 663 (1987). Based upon the evidence presented, we cannot find that claimant has proved by a preponderance of the evidence either an employee relationship or independent contract relationship with respondent. Although claimant testified that he was working for either James or Tony Allen, the evidence does not support his testimony. Claimant only received pay from Tony Allen on one isolated occasion. If claimant had been injured on that occasion, conceivably claimant would have been either an employee or independent contractor of Mr. Allen. However, there is no evidence that on the date of claimant’s injury he had any type of relationship, be it employee or independent contractor, with respondent or the Allen’s. As claimant testified, he was paid by Johnny Harris for the work he performed at the Magnet Cove job.
[7] Although respondent contracted with the Magnet Cove School District for the job to be performed, there is no evidence that claimant had an employment relationship with respondent. To the contrary, the evidence indicates that respondent contracted with a third party to actually perform the work at the Magnet Cove School District. This third party, Johnny Harris, was claimant’s employer. The evidence is simply lacking which would tend to link claimant to respondent in any type of employment relationship. Thus, we find that claimant has failed to prove by a preponderance of the evidence that he was an employee of respondent at the time of his injury.
[8] Nor can we find any type of joint enterprise between respondent and Mr. Harris to make claimant a joint employee as claimant argues in his brief. Respondent presented evidence that a contractual relationship existed between respondent and Mr. Harris for Mr. Harris to perform the labor to install and retrofit the light fixtures. Claimant offered no evidence to refute this testimony. Accordingly, we cannot find that anything other than a prime contractor and sub-contractor relationship existed between respondent and Mr. Harris.
[9] Likewise, we find that claimant has failed to prove by a preponderance of the evidence that he is entitled to any workers’ compensation benefits as an employee of an uninsured sub-contractor of an insured prime contractor. Ark. Code Ann. §
11-9-402 states in pertinent part:
Where a sub-contractor fails to secure compensation required by this chapter, the prime contractor shall be liable for the compensation to the employees of the sub-contractor.
[10] Given the relationship between claimant and respondent, it appears as if claimant must have been relying upon this provision for workers’ compensation benefits. However, the burden rests upon claimant to show that his employer, Johnny Harris, was a sub-contractor of respondent and had failed to secure compensation insurance. No such evidence exists in the record. Simply because claimant failed to introduce evidence concerning the insurance status of claimant’s employer, we cannot assume and speculate that the lack of evidence equates to lack of insurance. Conjecture and speculation, even if plausible, cannot take the place of proof.Ark. Dept. of Correction v. Glover,
35 Ark. App. 32,
812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon,
264 Ark. 791,
575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams,
43 Ark. App. 1,
858 S.W.2d 125 (1993). Accordingly, we find that claimant has failed to meet his burden of proof on this issue. Therefore, we affirm the decision of the Administrative Law Judge and deny and dismiss this claim.
[11] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents.
