Olvera v. Del's Auto Body, 17809

• Decision Date: 02 July 1990
• Docket Number: No. 17809,17809
• Citation: 118 Idaho 163,795 P.2d 862
• Parties: Hector C. OLVERA, Claimant-Appellant, v. DEL'S AUTO BODY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 862

795 P.2d 862

118 Idaho 163

Hector C. OLVERA, Claimant-Appellant, v. DEL'S AUTO BODY, Defendant-Respondent.

No. 17809.

Supreme Court of Idaho.

July 2, 1990.

Rehearing Denied Aug. 31, 1990.

Hector C. Olvera, Caldwell, pro se.

Gigray, Miller, Downen & Fouser, Caldwell, for defendant-respondent. Ronald Joseph Wilper argued.

BOYLE, Justice.

In this worker's compensation case we are called upon to determine whether the record supports the Industrial Commission's finding that claimant was an independent contractor rather than an employee, and was not entitled to receive worker's compensation benefits.

Claimant Hector Olvera (hereafter "Olvera") worked as a painter at Del's Auto Body Shop in Caldwell, Idaho. While working at Del's Auto Body Shop (hereafter "Del's") Olvera was paid sixty percent of the labor figure taken from the "flat rate manual" which is provided to body shops by the industry. By comparison, only thirty-five to forty percent of the labor charge was paid to employees working as painters at other auto body shops in the Caldwell area. Prior to beginning his work at Del's, Olvera was advised that he would be responsible for payment of his own taxes, social security and insurance. It is disputed whether or not he was advised that he would be covered by worker's compensation insurance, however, the record is clear that there were no payroll or earning deductions of any kind taken from the amounts paid to Olvera by Del's and at the end of the year he was given a form 1099 and not a W-2 form for income tax purposes.

Olvera was furnished a work area or "stall" in the body shop and was allowed to use the air compressor owned by Del's. Other than providing a place to work and access to an air compressor, Del's provided no tools or equipment to the workers. The record reveals that Olvera owned and provided extensive paint equipment and tools, worked irregular hours and frequently worked in the evenings and on weekends. Olvera also hired his own assistants to help him with the auto painting projects on which he was working.

The referee assigned by the Industrial Commission to hear the case concluded that although there was some indicia of an employer and employee relationship, the preponderance of the evidence established that an independent contractor and principal relationship existed between Olvera and Del's. The Industrial Commission approved the referee's findings of fact, conclusions of law and order and this appeal followed.

I. Scope of Appellate Review

It is well established by the prior decisions of this Court that where the factual findings of the Industrial Commission are sustained by substantial and competent, though conflicting, evidence, they will not be reversed on appeal. Kyle v. Beco Corp., 109 Idaho 267, 707 P.2d 378 (1985); Wood v. Quali-Dent Dental Clinics, 107 Idaho 1020, 695 P.2d 405 (1985); Cornwell v. Kootenai County Sheriff, 106 Idaho 823, 683 P.2d 859 (1984). We are likewise compelled to defer to the findings of the Industrial Commission when those findings are supported by substantial and competent evidence. Idaho Const. art. 5 § 9; Snyder v. Burl C. Lange, Inc., 109 Idaho 167, 706 P.2d 56 (1985); Puckett v. Idaho Dep't of Corrections, 107 Idaho 1022, 695 P.2d 407 (1985); Guillard v. Department of Employment, 100 Idaho 647, 603 P.2d 981 (1979). Our review of the decisions of the Industrial Commission is limited to questions of law, Idaho Const. art. 5 § 9; Ledesma v. Bergeson, 99 Idaho 555, 585 P.2d 965 (1978); Madron v. Green Giant Co., 94 Idaho 747, 497 P.2d 1048 (1972), and to a determination of whether the Commission's findings are supported by substantial and competent evidence. Parker v. Saint Maries Plywood, 101 Idaho 415, 614 P.2d 955 (1980). The evaluation and weighing of conflicting testimony is a function left to the sound discretion of the Industrial Commission as fact finder, and will not be disturbed on appeal by this Court unless clearly erroneous as a matter of law. Nycum v. Triangle Dairy Co., 109 Idaho 858, 712 P.2d 559 (1985). In the presence of conflicting evidence in worker's compensation proceedings, this Court has consistently recognized the Industrial Commission as the arbiter of those conflicting facts and acknowledge that the weight to be accorded evidence is within the Commission's particular province. Nelson v. Pumnea, 106 Idaho 48, 675 P.2d 27 (1983); Hayes v. Amalgamated Sugar Co., 104 Idaho 279, 658 P.2d 950 (1983); I.C. § 72-732. ¹

II. Standard For Determination of Independent Contractor Status

Olvera asserts that the Industrial Commission erred in finding that he was an independent contractor. Olvera testified before the Commission that he was never advised that he was an independent contractor and that no worker's compensation benefits would be available. Further, Olvera maintains that Del's had a worker's compensation notice posted on the wall, provided certain equipment, paid for supplies and exercised control over his work.

After a careful and thorough review of the record before us, we are not persuaded that the Industrial Commission erred in concluding Olvera was an independent contractor. The test in Idaho for determining whether an individual is an employee or an independent contractor has been described as the "right to control test." Sines v. Sines, 110 Idaho 776, 718 P.2d 1214 (1986); Burdick v. Thornton, 109 Idaho 869, 712 P.2d 570 (1985). As we stated in Sines:

The test used generally focuses upon consideration of four factors, (omitting citation) (1) direct evidence of the right; (2) the method of payment; (3) furnishing major items of equipment; and (4) the right to terminate the employment relationship at will and without liability.

110 Idaho at 777, 718 P.2d at 1215.

The determination of whether an injured party is an independent contractor or an employee is a factual determination to be made on a case-by-case basis from full consideration of the facts and circumstances established by the evidence. Burdick v. Thornton, 109 Idaho 869, 712 P.2d 570 (1985); Burns v. Nyberg, 108 Idaho 151, 697 P.2d 1165 (1985). The integral test is whether the relationship or the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract. Sines v. Sines, 110 Idaho 776, 718 P.2d 1214 (1986).

III. Liberal Construction Afforded To Worker's Compensation Act

The law in this state is likewise well established that when doubt exists as to whether an individual is an employee or an independent contractor under the Worker's Compensation Act, the Act must be given a liberal construction by the Industrial Commission in its fact finding function in favor of finding the relationship of employer and employee. Burdick v. Thornton, 109 Idaho 869, 712 P.2d 570 (1985); Fitzen v. Cream Top Dairy, 73 Idaho 210, 249 P.2d 806 (1952). A review of the record and §§ IV and VI of the Commission's conclusions of law clearly confirms that the referee was keenly aware of this principle of law ² and upon weighing the evidence concluded that Olvera was an independent contractor rather than an employee of Del's. The referee acknowledged and addressed the responsibility of the Commission to liberally construe the facts in favor of the claimant, ³ and found that Del's never assumed the right to control the time, manner and method of performing Olvera's work.

In the present case, Olvera was paid a substantially higher percentage of the paint labor charges at Del's than what comparable painters were receiving at other auto body shops in the Caldwell area. This significant increase indicates a relationship different from the usual employer and employee situation. In addition, Olvera paid his own taxes and there was nothing withheld from payments due him for insurance, social security or other standard payroll deductions. Olvera provided his own paint guns and extensive personal equipment and hired his own assistants. The other workers at Del's, although body and fender workers and not painters, were also independent contractors. The record demonstrates that Olvera worked irregular hours including evening and weekends. The fact that Del's provided an air compressor and work space for use by the workers including Olvera, does not alter the factual finding by the trier of fact that an independent contractor relationship was found to exist.

Our review does not entail a de novo review and determination of fact, I.C. § 72-732, and it is well established by case law that we are not to be concerned with whether this Court would have reached the same conclusion, but rather, with whether the findings of the Commission are supported by substantial, competent evidence. Graham v. Larry Donohoe Logging, 103 Idaho 824, 654 P.2d 1377 (1982).

Having fully reviewed the record as a whole, it is clear that the findings of the Industrial Commission are supported by substantial and competent, although conflicting, evidence and that the Industrial Commission properly applied the law to the facts presented.

Accordingly, we affirm. Costs to respondent.

BAKES, C.J., and JOHNSON and McDEVITT, JJ., concur.

BISTLINE, Justice, dissenting.

While I agree that the appropriate standard of review requires this Court to leave undisturbed factual findings of the Industrial Commission which are supported by substantial and competent evidence, this standard does not inevitably always lead to an affirmance. In this case, if we consider the facts as they were found by the referee and as they were adopted by the Industrial Commission, and apply the law of Idaho to those facts, the inevitable result is a finding, as a matter of law, that Hector Olvera was a covered employee and not an independent contractor of Del's Auto Body when he was injured.

The questions of fact that must be answered before a worker may be treated (for the purposes...