1998 -NMCA- 70, Benavidez v. Sierra Blanca Motors

• Decision Date: 24 April 1998
• Docket Number: No. 18454,18454
• Citation: 1998 NMCA 70,125 N.M. 235,959 P.2d 569
• Parties: , 1998 -NMCA- 70 Jose Ventura BENAVIDEZ, Claimant-Appellant, v. SIERRA BLANCA MOTORS and John Deere Insurance Co., Employer/Insurer-Appellees.
• Court: Court of Appeals of New Mexico

Page 569

959 P.2d 569

125 N.M. 235, 1998 -NMCA- 70

Jose Ventura BENAVIDEZ, Claimant-Appellant, v. SIERRA BLANCA MOTORS and John Deere Insurance Co. Employer/Insurer-Appellees.

No. 18454.

Court of Appeals of New Mexico.

April 24, 1998.

Warren F. Reynolds, Warren F. Reynolds, P.A., Hobbs, for Appellant.

David L. Skinner, O'Brien, Genova & Skinner, P.C., Albuquerque, for Appellees.

OPINION

DONNELLY, Judge.

¶1 Claimant Jose Ventura Benavidez appeals from an order of the Workers' Compensation Judge (WCJ) denying workers' compensation benefits, medical benefits, and attorney fees. The principal issue raised on appeal is whether the WCJ erred in determining that Claimant, an inmate in the custody of the New Mexico Department of Corrections who was injured while participating in an inmate work-release program, was eligible for benefits under the New Mexico Workers' Compensation Act. See NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 1993) (the Act). For the reasons discussed herein, we reverse.

FACTS AND PROCEDURAL POSTURE

¶2 This is the second appeal before us involving these parties. Claimant, an inmate at the Roswell Correctional Center (RCC), filed suit seeking workers' compensation benefits for injuries he sustained while participating in an inmate-release program at Sierra Blanca Motors (Sierra Blanca). Both Claimant and Sierra Blanca filed motions for summary judgment. The WCJ held that Claimant's status as a prisoner precluded his receipt of benefits, and granted summary judgment in favor of Sierra Blanca. In Benavidez v. Sierra Blanca Motors, 120 N.M. 837, 907 P.2d 1018 (Ct.App.1995) (Benavidez I ), aff'd in part & rev'd in part, 1996-NMSC-045, 122 N.M. 209, 922 P.2d 1205, this Court reversed an award of summary judgment as to Sierra Blanca, and concluded as a matter of law that Claimant was Sierra Blanca's employee and therefore was entitled to receive workers' compensation benefits.

¶3 The Supreme Court granted certiorari to address the question whether a prisoner participating in an inmate-release program who is injured while performing work at a private jobsite may be considered an employee of that private business entitled to workers' compensation benefits under the Act. In Benavidez v. Sierra Blanca Motors, 1996-NMSC-045, 122 N.M. 209, 215, 922 P.2d 1205, 1211 (Benavidez II ), our Supreme Court held that (1) Claimant's "status as an inmate [did] not preclude the existence of an employer-employee relationship [with Sierra Blanca] for the purpose of receiving workers' compensation benefits"; and (2) that resolution of whether Claimant was an employee of Sierra Blanca "for the purpose of receiving workers' compensation benefits depends on the particular relationship he had with Sierra Blanca." Benavidez II, although affirming this Court's reversal of summary judgment in favor of Sierra Blanca, reversed that part of this Court's decision which held that summary judgment should be granted to Claimant.¹ The Supreme Court ordered that the case be remanded for further factual inquiry regarding the nature of the relationship between Claimant and Sierra Blanca, and for entry of an appropriate judgment.

¶4 On remand, both Claimant and Sierra Blanca presented evidence bearing on the nature of Claimant's employment. The evidence was largely undisputed, although the parties vigorously disagreed concerning the effect of the evidence. Claimant also presented evidence he had incurred medical bills totalling $51,748.82 arising out of the accident. After considering the evidence at trial, the WCJ determined that Claimant did not have an employer-employee relationship with Sierra Blanca and that he was not a worker as defined by Section 52-1-16(A) (1989) of the Act.

DISCUSSION

¶5 Claimant contends the WCJ erred in finding that he was not an employee of Sierra Blanca within the contemplation of the Workers' Compensation Act. We agree.

¶6 The Act provides that an employee has the right to compensation for injuries arising out of and in the course of his employment, § 52-1-9 (1973), and defines a worker or employee as "any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business." Section 52-1-16(A). To obtain benefits under the Act, Claimant had the burden of establishing that he was an employee of Sierra Blanca rather than performing work as an independent contractor. See Dibble v. Garcia, 98 N.M. 21, 23, 25, 644 P.2d 535, 537, 539 (Ct.App.1982); see also Tafoya v. Casa Vieja, Inc., 104 N.M. 775, 778, 727 P.2d 83, 86 (Ct.App.1986) (affirming trial court's dismissal of plaintiff's claim for workmen's compensation benefits after it concluded that plaintiff was not defendant's employee, but was an independent contractor); Burton v. Crawford & Co., 89 N.M. 436, 440, 553 P.2d 716, 720 (Ct.App.1976) (affirming summary judgment which denied plaintiff's claim for workmen's compensation on the grounds that plaintiff was an independent contractor and not an employee of defendant).

¶7 Whether Claimant was an employee or an independent contractor in his relationship with Sierra Blanca is a question of law to be determined from the facts. See Dibble, 98 N.M. at 23, 644 P.2d at 537; see also Jelso v. World Balloon Corp., 97 N.M. 164, 167, 637 P.2d 846, 849 (Ct.App.1981). In reviewing the WCJ's findings of fact we apply a whole record standard of review and look not only at the evidence that is favorable, but also evidence that is unfavorable to the WCJ's determination. See Chavez v. Mountain States Constructors, 1996-NMSC-070, p 20, 122 N.M. 579, 929 P.2d 971. "In determining the existence of an employer-employee relationship, no one single factor is decisive; rather, all relevant circumstances must be considered." Benavidez II, 122 N.M. at 215, 922 P.2d at 1211.

¶8 In Harger v. Structural Services, Inc., 1996-NMSC-018, 121 N.M. 657, 664, 916 P.2d 1324, 1331, our Supreme Court adopted the Restatement (Second) of Agency approach, which recognizes the significance of a variety of factors in evaluating the "right-to-control," for determining whether one acting for another is an independent contractor. See Restatement (Second) of Agency § 220 (1958). Sierra Blanca cites Harger for the proposition that substantial evidence supports the WCJ's determination that Claimant was not an employee. While Harger was particularly concerned with the construction of the term "independent contractor" within the meaning of Section 52-1-22 (1989), we apply the same approach in distinguishing between an employee and an independent contractor for the purposes of determining a person's entitlement to benefits under Section 52-1-16(A). Support for this view emanates from the fact that Harger, 121 N.M. at 663, 916 P.2d at 1330, cites Burruss v. B.M.C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934) (affirming determination that truck driver was an employee within the meaning of a predecessor statute to Section 52-1-16(A) rather than an independent contractor), as evidence of its consistent adherence to the principle that the primary consideration is the right to control.

¶9 Harger, 121 N.M. at 667, 916 P.2d at 1334, identified a number of factors that are used to determine the existence of the right of control, or the existence of an employer-employee relationship, including the following:

[1.] [D]irect evidence of the exercise of control[;] [2.] the right to terminate the employment relationship at will, by either party, and without liability[;]... [3.] the right to delegate the work or to hire and fire assistants[;] [4.] the method of payment, whether by time or by the job[;]... [5.] whether the party employed engages in a distinct occupation or business; [6.] whether or not the work is a part of the employer's regular business; [7.] the skill required in the particular occupation; [8.] whether the employer supplies the instrumentalities, tools, or the place of work; [9.] the duration of a person's employment, and whether that person works full-time or regular hours; [and] [10.] whether the parties believe they have created the relationship of employer and employee, insofar as this belief indicates an assumption of control by one and submission to control by the other.

¶10 Sierra Blanca emphasizes a number of factors supporting the WCJ's determination that it did not have an employer-employee relationship with Claimant. It argues that Claimant's work was unrelated to its regular business of selling and servicing automobiles; that Sierra Blanca never intended to form an employer-employee relationship with Claimant; that Claimant knew he was not considered an employee of Sierra Blanca; that he was not treated similarly to non-inmate workers with respect to the employment application process, sick leave, vacation time, holiday pay, health insurance, workers' compensation insurance, method of payment, and withholding of income taxes; and that Sierra Blanca did not have control over the details and manner of completing the project on which Claimant was working.

¶11 Although Sierra Blanca is correct that there is evidence which supports the WCJ's determination that Claimant's job of dismantling and cleaning up a building was not part of Sierra Blanca's regular business, the undisputed facts indicate that Claimant was not engaged in an independent business of preparing buildings for remodeling; that his position was that of an unskilled laborer; that he was paid by the hour; that Sierra Blanca provided the tools Claimant needed to perform his assignments, the ladder he was utilizing at the time of the accident, and directed the place to work; that Sierra Blanca hired Claimant to work full-time at a task that required one and one-half months to complete; that it had the right to supervise the work being performed by Claimant; and that it had the right to hire or dismiss...