CLAIM NO. E901863
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MAY 11, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
ORDER
The respondents appeal an opinion and order filed by the administrative law judge on August 27, 1999. In that opinion and order, the administrative law judge found in relevant part that on February 9, 1999, the claimant was an employee of uninsured contractors, Leonard Tubbs and Ken Buck, and the claimant was a statutory employee of MDH Builders, Inc. The administrative law judge therefore found MDH Builders, Inc. liable for the claimant’s injury as a “prime contractor” under Ark. Code Ann. § 11-9-402.
One prerequisite to MDH Builders, Inc. being a “prime contractor” under Ark. Code Ann. § 11-9-402 is that MDH Builders, Inc. must be contractually obligated to a third person for thework being performed by Tubbs and Buck, the “subcontractors” of MDH Builders, Inc. See, Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982).
Our review of the respondents’ contentions at the start of the hearing, the respondents’ post-hearing brief, and the respondents’ brief on appeal fails to reveal any specific contention raised by the respondents that MDH Builders, Inc. wasnot contractually obligated to a third party for the work performed by Tubbs and Buck on the Fazoli job. The respondents’ contention at the start of the hearing for lack of a “prime contractor” status was only that no contractual relationship existed between MDH Builders, Inc. and Mr. Tubbs (T. 7-8). In their post-hearing brief, the respondents again argue in relevant part a lack of a contractual relationship between MDH Builders, Inc. and Tubbs, or in the alternative, a lack of evidence to show that MDH Builders was not itself a subcontractor to a third party. Likewise, in their brief on appeal, the respondents again appear to argue in relevant part that the claimant must establish that MDH Builders, Inc. was not itself a subcontractor. To the extent that the respondents now seem to argue MDH Builders, Inc. cannot itself be both a “subcontractor” to a third party and at the same time a “prime contractor” with respect to Tubbs and Buck, we note that the respondents have failed to present any authority in support of their apparent statutory interpretation of Ark. Code Ann. § 11-9-402. For the following reasons, we do not reach this legal issue at this juncture.
The administrative law judge did not make any specific findings as to whether or not MDH Builders, Inc. was or was not obligated to a third party for the work being performed by Tubbs and Buck. We note that the administrative law judge’s August 27, 1999 opinion and order does contain the following two statements suggesting that MDH Builders, Inc. was contractually obligated to construct a building for the Fazoli restaurant chain:
Ken Buck testified that he was hired by MDH Builders to construct a building for the Fazoli restaurant chain. . . . (P. 3)
In the instant case, the testimony at the hearing demonstrates that Tubbs and Buck were partners in the enterprise to build the structure for the Fazoli restaurant chain. (P. 4)
However, our review of the testimony at the hearing fails to indicate any specific testimony that the structure was being built for the Fazoli restaurant chain. On the other hand, MDH Builders likewise has never asserted that MDH Builders owned the property and was having a structure built for MDH Builders, Inc.’s own purposes at the “Fazoli site”. Compare, Simmons, supra. Furthermore, MDH Builders’ relevant suggestion in their brief on appeal (that MDH Builders was itself a subcontractor) does not appear to be supported by any of the evidence in the record.
Because we cannot find any evidence in the hearing transcript which supports the administrative law judge’s statement that the structure was being built for the Fazoli restaurant chain, or to support the respondents’ contention that MDH Builders was itself a subcontractor, we remand this case for the administrative law judge to settle the record and for additional findings regarding whether MDH Builders was or was not a “prime contractor” as that term was discussed in Bailey v. Simmons, supra.
IT IS SO ORDERED.
_____________________________
ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs.
Commissioner Wilson dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion, because I find that claimant failed to prove by a preponderance of the evidence that MDH was a prime contractor.
I cannot agree to a remand because the record is devoid of evidence regarding the relationship between MDH and Buck, and therefore the Administrative Law Judge’s finding that MDH was the prime contractor is not supported by the facts, no matter what the Judge says now. The fact that MDH Builders’ name has “builders” in it is insufficient in my opinion, as is the fact that respondent carefully avoided denying or addressing the issue. Claimant has the burden of proving his case. The argument that MDH is not a prime contractor is not an affirmative defense. Claimant failed to satisfy his burden of proof. It is claimant’s burden to prove his case by a preponderance of the evidence and there is not a preponderance of the evidence to prove that MDH was a prime contractor. A remand in this case is a waste of time and resources, and therefore, I must dissent from the majority’s order remanding this claim to the Administrative Law Judge.
________________________________ MIKE WILSON, Commissioner