Carbajal v. Precision Builders, Inc.

• Decision Date: 03 July 2014
• Docket Number: No. 111,114.,111,114.
• Citation: 333 P.3d 258
• Parties: Andres CARBAJAL, Petitioner/Appellant, v. PRECISION BUILDERS, INC., and/or Mark Dickerson, and/or Hoover Construction Co., and/or Davita, Inc., and the Workers' Compensation Court, Respondents, and No Insurance, and/or New Hampshire Insurance Co., and/or Texas Mutual Insurance Co. (NLC), Insurance Carriers.
• Court: Oklahoma Supreme Court

333 P.3d 258

Andres CARBAJAL, Petitioner/Appellant,

v.PRECISION BUILDERS, INC., and/or Mark Dickerson, and/or Hoover Construction Co., and/or Davita, Inc., and the Workers' Compensation Court, Respondents,andNo Insurance, and/or New Hampshire Insurance Co., and/or Texas Mutual Insurance Co. (NLC), Insurance Carriers.

No. 111,114.

Supreme Court of Oklahoma.

July 1, 2014.

As Corrected July 3, 2014.

CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. 4

¶ 0 Workers' compensation claimant sought benefits after he allegedly fell from scaffolding. The Workers' Compensation Court trial tribunal concluded that the claimant was not an employee. A three-judge panel of the Workers' Compensation Court affirmed the order of the trial tribunal. The Court of Civil Appeals sustained the order of the three-judge panel, and the claimant sought certiorari review in this Court. We hold that the factors applied from Page v. Hardy, 1958 OK 283, 334 P.2d 782 show that the construction worker was an employee and not an independent contractor when he was allegedly injured.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; ORDER OF THE THREE–JUDGE REVIEW PANEL OF THE WORKERS' COMPENSATION COURT IS VACATED; AND THE PROCEEDING IS REMANDED TO THE WORKERS' COMPENSATION COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT.

Catherine Gatchell Cooper, Tulsa, Oklahoma, for Petitioner.

Richard L. Blanchard, Tulsa, Oklahoma, for Respondent, Hoover Construction Co.

Dana L. Gish, Tulsa, Oklahoma, for Texas Mutual Insurance Co.

EDMONDSON, J.

¶ 1 Claimant, Andres Carbajal, alleged that he was injured ¹ when scaffolding he was on was blown over and he fell while working on a construction project in Okmulgee, Oklahoma. He filed a claim in the Workers' Compensation Court and alleged that he was an employee of Precision Builders, Inc., and/or Mark Dickerson (Precision) when he fell with the scaffolding. ² The trial tribunal denied the claim upon determining that claimant was an independent contractor and not an employee. The three-judge panel affirmed the trial tribunal and the panel's order was sustained by the Court of Civil Appeals. The question presented on certiorari is whether petitioner was an employee or independent contractor.

¶ 2 Claimant filed a Form 3 in June 2010 and alleged that he fell from scaffolding while working at a construction site on April 26, 2010. The substantive rights and obligations of the parties in a workers' compensation proceeding are based upon the statutes in effect on the date of the worker's injury.³ The law in effect on April 26, 2010, defined “employee” for the purpose of workers' compensation as “any person engaged in the employment of any person, firm, limited liability company or corporation covered by the terms of the Workers' Compensation Act ...” ⁴ and “employment” as “work or labor in a trade, business, occupation or activity carried on by an employer ...” ⁵ and an “employer” is a “person, partnership, [etc.] ... employing a person included within the term ‘employee’ as defined herein.” ⁶ There is a long history in this state of not including an independent contractor within the statutory definition of an employee. ⁷ Consistent with this distinction concerning the difference between an employee and an independent contractor, 85 O.S.Supp.2009 § 11 classified an independent contractor as a type of employer who is required to be liable for the workers' compensation due to his or her employees.⁸

¶ 3 In Page v. Hardy, 1958 OK 283, 334 P.2d 782, this Court set out several factors to be considered when determining whether an employee/employer relationship exists. Those are:

(a) the nature of the contract between the parties, whether written or oral; (b) the degree of control which, by the agreement, the employer may exercise on the details of the work or the independence enjoyed by the contractor or agent; (c) whether or not the one employed is engaged in a distinct occupation or business for others; (d) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (e) the skill required in the particular occupation; (f) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work; (g) the length of time for which the person is employed; (h) the method of payment, whether by the time or by the job; (i) whether or not the work is a part of the regular business of the employer; (j) whether or not the parties believe they are creating the relationship of master and servant; and (k) the right of either to terminate the relationship without liability.

Page v. Hardy, 334 P.2d at 784–785.

¶ 4 The claimant testified at a hearing before the trial tribunal. Claimant is “a documented Hispanic worker” who does not speak English and did not complete the third grade. He started working for Precision in 2006 on a ranch in Texas where he did construction work. He lived there while working on the site. In 2009 he worked January and February, then stopped, and in August he went back to work for Precision.

¶ 5 Claimant testified on the degree of control exercised by his supervisors. He worked as part of a crew of eight to nine people, and his supervisors at Precision told him where to go, when to be there, when he could leave, and when he could go to lunch. The crew would go to lunch together. He worked from eight to fourteen hours a day. He was not allowed to come and go from a construction site whenever he wanted. His work was framing, building doors, and installing sheetrock. He did not read blueprints or construction plans, and he did what he was told to do. He testified he had no “special schooling or training” to teach him how to do construction work. He answered in the affirmative when questioned whether he was “simply told what to do, and you did it with your hands....”

¶ 6 He testified he would go from one job site to another as directed by his supervisors who were relating Mark Dickerson's directions, but sometimes there was a week or two, “possibly three weeks the most,” but “sometimes” it was longer between construction assignments. He stated that between the assignments from Precision there was a block on a street where he could go with “a lot of people standing in there, and sometimes they go and hire you for one day ... [s]ometimes it's just like for one day or two,” and he was paid seven to eight dollars per hour. There was no testimony on the nature of the work claimant performed when working for a day or two for the various people who hired him on the street.

¶ 7 He testified Mark Dickerson was “the boss” at Precision and he took orders from Mr. Dickerson through two supervisors who speak Spanish. He stated he was working on a project on a ranch in Texas and two supervisors told him of the project in Oklahoma, because “it was by Mark's orders ... and Mark gave me the address.” When questioned whether Mark “invited” claimant to go to Oklahoma instead of ordering him to go, the claimant said, “No. He told me to go to work.” He testified “Marcos” (Mark Dickerson) paid him $400 “gas money” for him and another Precision worker to travel from Texas to Okmulgee, Oklahoma, to work at the construction site. He stated he did not have a driver's license. The other worker was a friend who gave him rides to work. He answered in the affirmative when questioned whether he was “sometimes paid for travel costs.”

¶ 8 Claimant testified he worked on construction sites where he would use a hammer for framing and a cordless drill for metal studs and screws. He testified he has his own tool belt and he owns a cordless drill, measuring tape, knife, pencil, level, pliers, and a sheetrock gun. He stated he has never used “leg extensions” to install sheetrock and he does not own a nail gun or compressor.

¶ 9 He also testified his supervisor at Precision provides a “big orange box” with tools and “we all take tools from there.” He stated he used tools from the tool box supplied by Precision to perform his assigned tasks. He stated some of his co-workers used tools from the tool box and some did not. He did not provide the lumber or the metal framing used in the construction projects. When asked if he paid for nails and screws or “that kind of thing,” he responded with “I don't buy anything for work.” He testified he did not supply the scaffolding he was on when he fell.

¶ 10 Claimant testified he was paid $15.00 per hour, sometimes in cash and sometimes by a money order. He testified sometimes he is paid $500, sometimes $200, “sometimes he [Dickerson] has to complete what he owed me for past weeks.” He stated he was paid by the hour, and that his two supervisors, Key or Rodriquez, “they write them [the hours] down.” Claimant testified Precision never provided him any forms relating to income taxes. Claimant obtained information from the Internal Revenue Service that Precision had submitted forms to the IRS in 2008 and 2009 that designated amounts paid to claimant as “non-employee compensation.”

¶ 11 Counsel for respondent provided a copy of a $3,000 check written in 2009 and made payable to the claimant. The check states “Subcontract” on its memo line. Claimant testified that he does not know what it says, “I just go and cash it.” Counsel for respondent asked claimant why he was paid $3,000 with three $1,000 money orders in May 2010. He stated that he was owed money for work he did on “the ranch,” and he had to pay others for work they did in Okmulgee. He testified he was given $3,000 because he was supposed to pay his friend and another person. He was directed to pay them because “they didn't have an ID to cash the checks,” and he “had proper identification and a social security number ... and paid other people for Marcos [Mark Dickerson].” Claimant stated he did not know “why he [Dickerson] did...