GRAY v. B.R. SKIPPER CONSTRUCTION, INC., 2003 AWCC 76

CLAIM NO. F010523

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 21, 2003

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by HONORABLE RICHARD S. MUSE, Attorney at Law, Hot Springs, Arkansas.

Respondents No. 1 represented by HONORABLE J. MATTHEW MAULDIN, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented at the hearing by HONORABLE SCOTT LAUCK, Attorney at Law, Little Rock, Arkansas; and represented on appeal by HONORABLE TODD WOOTEN, Attorney at Law, Little Rock, Arkansas.

Respondent No. 3 represented by HONORABLE JUDY W. RUDD, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed.

OPINION AND ORDER
Respondent No. 1 appeals an opinion and order filed by the Administrative Law Judge on May 21, 2002. In that opinion and order, the Administrative Law Judge found in relevant part that the claimant was an employee of Respondent No. 1, B.R. Skipper Construction, Inc., and not an employee of Respondent No. 2, Keevin and Elizabeth Taylor, when he sustained an ultimately fatal injury on September 5, 2000. In addition, the Administrative Law Judge indicated in that opinion and order that there was no contention made by either respondent party in this case before the Administrative Law Judge that the claimant was an independent contractor, rather than an employee of one or the other respondent, when his injury occurred.

On appeal, Respondent No. 1 argues that the Administrative Law Judge erred in stating in the May 21, 2002 opinion and order that neither respondent asserts that the claimant was an independent contractor rather than an employee at the time his injury occurred. In addition, in its brief on appeal, Respondent No. 1 contends as alternatives that either (1) the claimant, a journeyman carpenter, was an independent contractor rather than an employee, or else (2) if the claimant was an employee, his true employer at the work site was Keevin Taylor, not B.R. Skipper Construction, Inc.

After conducting a de novo review of the entire record, and for the reasons discussed below, we find that a preponderance of the credible evidence establishes that the claimant’s employment relationship was with Respondent No. 1 and not with Respondent No. 2. Furthermore, because we find that the record clearly establishes that the claimant’s relationship with Respondent No. 1 was that of employee-employer, and not as an independent contractor, we need not reach Respondent No. 1’s argument that the Administrative Law Judge committed legal error in concluding that neither respondent contended that the claimant was an independent contractor rather than an employee on the construction site. The various respondents in this case entered into a construction contract that called for B.R. Skipper Construction, Inc. to construct a custom home at No. 6 Stonegate Point in Hot Springs, Arkansas for Keevin and Elizabeth Taylor, the property owners. At some point after the contract was signed, and for reasons not clear from the record, Keevin Taylor asked B.R. Skipper to employ W. C. Sutterfield as the building project foreman. For reasons also not clear from the record, Skipper acquiesced in Taylor’s demand and brought in Sutterfield as the project foreman. For reasons not particularly clear from the record, Skipper later essentially abdicated his duties as building contractor and turned day-to-day control of the construction project over to Taylor and Sutterfield.[1]

There is no dispute that Harold Gray was a carpenter who, along with another carpenter, Larry Duranleau, began working at the Taylor construction site approximately two weeks before Mr. Gray sustained an injury to the head with a nail gun on September 5, 2000. For the reasons discussed below, we find that the preponderance of the evidence establishes that the claimant was an employee of B.R. Skipper Construction, Inc. on September 5, 2000.

The Supreme Court of Arkansas “has long held that an independent contractor is one who contracts to do a job according to his own method and without being subject to the control of the other party, except as to the result of the work.” Arkansas Transit Homes, Inc. v. AETNA Life Casualty, 341 Ark. 317, 321, 16 S.W.3d 545, 547 (2000) (citin Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988) Moore and Chicago Mill Lbr. Co. v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938); W. H. Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4 (1926).

The determination of whether a person is an employee or an independent contractor must be made on a case by case basis. See id. (citing Massey v. Poteau Trucking Co., 221 Ark. 589, 592, 254 S.W.2d 959, 961 (1953) (internal citations omitted); Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 267, 635 S.W.2d 286, 288 (1982) (citations omitted). “There are numerous factors which may be considered in determining whether an injured person is an employee or an independent contractor for purposes of workers’ compensation coverage.” Franklin, 5 Ark. App. at 269, 635 S.W.2d at 289. These factors include:

(1) the right to control the means and the method by which the work is done.

(2) the right to terminate the employment without liability.

(3) the method of payment, whether by time, job, piece, or other unit of measurement.
(4) the furnishing, or the obligation to furnish, the necessary tools, equipment, and materials;
(5) whether the person employed is engaged in a distinct occupation or business;

(6) the skill required in a particular occupation;

(7) whether the employer is in business;

(8) whether the work is an integral part of the regular business of the employer; and

(9) the length of time for which the person is employed.

Id. 5 Ark. App. at 269-70, 635 S.W.2d at 289.

“[T]he right to control is the principle factor in determining whether one is an employee or an independent contractor.” Arkansas Transit Homes, Inc., 341 Ark. at 322, 16 S.W.3d at 548 (citing Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 517, 868 S.W.2d 476, 477-78 (1994) (internal citations omitted). With regard to control,

[t]he governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. But if control of the means be lacking, and the employer does not undertake to direct the manner in which the employee shall work in the discharge of his duties, then the relation of independent contractor exists.

Id. (quoting Massey v. Poteau Trucking Co., 221 Ark. 589, 592, 254 S.W.2d 959, 961 (1953) (internal citations omitted).

Additionally, the factors that pertain to the correlation between the claimant’s occupation and the regular business of the “employer” comprise the “relative nature of the work” test. Arkansas Transit Homes, Inc., 341 Ark. at 322, 16 S.W.3d at 548 (citing Sandy v. Salter, 260 Ark. 486, 541 S.W.2d 929 (1976)). “This test requires consideration of two factors: (1) whether and how much the workers’ occupation is a separate calling or profession, and (2) what relationship it bears to the regular business of the employer. The more the worker’s occupation resembles the business of the employer, the more likely the worker is an employee.”Id.

In asserting that the claimant was an independent contractor, and not an employee of B.R. Skipper Construction, Inc., Respondent No. 1 notes on appeal the evidence that Skipper did not personally hire any of the carpenters who worked on the Taylor construction site. Respondent No. 1’s brief also notes the incredible amount of confusion as between the testimony of Taylor, Skipper, Sutterfield, and the other witnesses who testified, as to precisely who did hire the claimant approximately two weeks before his injury. Respondent No. 1 notes that the claimant was a “journeyman” carpenter who knew what he was doing. Respondent No. 1’s brief argues that Skipper did not control the means and method or the details of the work on the construction site, but instead only occasionally made suggestions for the purpose of ensuring the correctness and quality of the final product. Respondent No. 1 considers significant the fact that Taylor, the homeowner, made changes to the blueprint and gave instructions to the carpenters. Respondent No. 1 notes that no taxes were withheld by the Taylors or by B.R. Skipper Construction, Inc. in the compensation paid to the claimant and other builders on the work site. Respondent No. 1’s brief notes the evidence that, at least part of the time, the Taylors paid the carpenters directly. Respondent No. 1’s brief notes that Skipper Construction did not furnish any of the tools used by the carpenters on the work-site, although Taylor did furnish tools, and Respondent No. 1’s brief notes the lack of testimony regarding the length of time that the claimant would have worked at the construction site but for his untimely death. We are not persuaded by Respondent No. 1’s arguments for the following reasons.

With regard to the “right to control” test, we point out that, while Skipper apparently abdicated his day-to-day duties as the building contractor at the Taylor construction site, the evidence nevertheless establishes that he was, in fact, the contractor of record at the time the claimant’s injury occurred, and in fact was still the contractor of record at the time of the hearing held in this case on April 26, 2002. While Skipper apparently chose to exercise very little control on a day-to-day basis of the work being performed at the site, his right as the construction contractor in this case to do so is clearly established based on factors discussed more fully below. With regard to the “nature of the work” test, we likewise note that B.R. Skipper Construction, Inc. was an entity engaged in the business of a residential construction project at the time of the claimant’s death, and clearly the claimant’s labor as a carpenter constructing a roof integral to Skipper’s construction contract was an integral part of Skipper’s business at the time.

With regard to the “right to control” factors, we note that the claimant, Larry Duranleau, and Richard Phillips were three of approximately five carpenters on the payroll attempting to construct a roof frame on the Taylors’ new house at the time the claimant was injured. Mr. Duranleau’s testimony persuades us that the various carpenters were employed at the site as carpenter laborers who had essentially no right to control the means and the method by which the roof to the Taylors’ home was to be constructed. To the contrary, their daily work was governed by blueprints which were subject to revision by Mr. Sutterfield at his discretion (Duranleau Dep. 18) as well as subject to revision by Mr. Taylor, the property owner. Their work schedule, including their lunch breaks, were also determined for them. (Phillips Dep. P. 26). Taylor was on the workers all the time (Phillips Dep. P. 27).

There also appears to be no real dispute that the claimant, as one of the carpenters on site, could have been terminated without any liability or could have quit without liability at any time. In fact, Sutterfield testified that he could have fired workers, and that Skipper had the authority to fire workers, but that Taylor had no authority to fire workers at the construction site. (T. 64-65). Notably, Skipper likewise testified that if Taylor had left the question solely to Skipper, then Skipper would have probably fired everyone on the construction job and brought in a whole new crew of workers. (T. 59). Furthermore, Taylor acknowledged that, after the claimant’s accident, the entire crew quit the job because they could not finish the roof, given the complexity of the roof’s design. (T. 86).

With regard to the method of payment to carpenters at the site, we note that the claimant was only paid by the hour for his time, and was not paid by the job, or by the square-foot of roof completed, or by any other measure of payment that might suggest that the claimant had in fact engaged in some type of sub-contractual relationship with Skipper Construction. While the carpenters paid their own taxes and received a Form 1999, Phillips still considered himself an employee of B.R. Skipper Construction, Inc. (Phillips Dep. P. 15).

With regard to the question of who furnished the tools, equipment, and materials on the site, the record establishes that the claimant only supplied his own apron and hammer. (Phillips Dep. p. 23) Keevin Taylor, the property owner, provided the major tools required to build the house, including walk boards, a tractor, and hand tools. The claimant did not supply his own materials, or the nail gun he was using at the time of his death.

To the extent that the respondents seem to go to great lengths to point out that the claimant was a “journeyman carpenter,” we fail to see any persuasive evidence in the record to indicate that this designation bestowed upon the claimant by his fellow carpenters in any way involves any sort of state licensing procedure or in any way indicates these type of self-described designations among carpenters establish that the claimant was in fact engaged in a distinct occupation or business. Moreover, there is no persuasive evidence in the record that Harold Gray was operating as a business either before coming to the Taylor work site or at the Taylor work site. Not only is there a lack of any evidence indicating that Mr. Gray held himself out as a carpentry contracting business, we also note the lack of any testimony indicating that the claimant filed with either Sutterfield, Taylor, or Skipper a certification of noncoverage for sole proprietors. See Ark. Code Ann. § 11-9-102(9)(D) (Repl. 2003). Furthermore, as discussed above, Mr. Phillips’ credible testimony establishes that he, as a “contract carpenter,” considered his relationship with the respondents to be one as an employee, and not as some type of subcontractor. (Phillips Dep. P. 15). Notably, Phillips also testified that he was informed by Sutterfield when he was hired that Skipper was his employer. (Phillips Dep. P. 16).

Again, we note that B.R. Skipper was in fact in business as B.R. Skipper Construction, Inc., at least on this one final project, to construct a home, and the claimant’s labor as one of approximately five carpenters on site to construct a roof was an integral part of that construction business under Skipper Construction’s contract with the Taylors.

We also note with interest that our conclusion that the claimant engaged in “at will” employment with Skipper Construction at the work site also appears to be supported by the fact that many of the claimant’s co-workers apparently quit the job in mass shortly after his injury when a problem with the roof construction came to light. For all of the foregoing reasons, we find that the preponderance of the evidence establishes that the claimant was engaged as an at will employee, and not as a subcontractor at the Taylor home work site.

To the extent that B.R. Skipper Construction, Inc. now suggests on appeal that the claimant might instead be characterized as an employee of the Taylors, rather than as an employee of Skipper Construction, we again point out that B.R. Skipper Construction was the contractor of record at the time the claimant’s injury occurred. B.R. Skipper Construction was still apparently the contractor of record at the site at the time the hearing occurred. While Skipper himself may have abdicated most of the day-to-day control of the work site to Taylor and Sutterfield, based on the testimony cited herein, we are persuaded that as the contractor of record, Skipper Construction, Inc., had the right of control of the project if and when Skipper ever chose to assert control. We are not persuaded that Skipper’s employees somehow became employees of the Taylors simply because Skipper chose not to engage in routine oversight of the project that he contracted to build as Respondent No. 1 suggests. Nor are we persuaded that Skipper Construction’s employees somehow became employees of the Taylors simply because of the personality conflicts that existed between Skipper, Sutterfield, and Taylor, which seem to have contributed, at least in part, to Skipper’s infrequent appearance at the work site.

Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, the decision of the Administrative Law Judge must be, and hereby is, affirmed.

All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).

For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).

IT IS SO ORDERED.

______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner

Commissioner Yates dissents.