Pettit v. State

• Decision Date: 22 March 1996
• Docket Number: No. S-94-797,S-94-797
• Citation: 249 Neb. 666,544 N.W.2d 855
• Parties: Donna PETTIT, appellant, v. STATE of Nebraska, Department of Social Services, appellee.
• Court: Nebraska Supreme Court

Page 855

544 N.W.2d 855

249 Neb. 666

Donna PETTIT, appellant, v. STATE of Nebraska, Department of Social Services, appellee.

No. S-94-797.

Supreme Court of Nebraska.

March 22, 1996.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

2. Workers' Compensation: Appeal and Error. Findings of fact made by the Workers' Compensation Court have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous.

3. Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact, the evidence must be considered in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.

4. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the inferior courts.

5. Employer and Employee: Independent Contractor: Master and Servant: Contracts. Ordinarily, the party's status as an employee or an independent contractor is a question of fact. However, where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law. By stating "where the inference is clear," this court means that there can be no dispute as to pertinent facts pertaining to the contract and the relationship of the parties involved and only one reasonable inference can be drawn therefrom.

6. Workers' Compensation: Jurisdiction: Proof. The plaintiff in Workers' Compensation Court must prove that she or he has employee status to invoke the jurisdiction of the court.

7. Employer and Employee: Independent Contractor. There are 10 factors which are considered in determining whether a person is an employee or an independent contractor: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) 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; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business.

8. Employer and Employee: Independent Contractor. The right of control is the chief factor distinguishing an employment relationship from that of an independent contractor.

9. Employer and Employee: Independent Contractor: Contracts. The employer of an independent contractor may, without changing the status, exercise such control as is necessary to assure performance of the contract in accordance with its terms.

10. Workers' Compensation: Independent Contractor: Words and Phrases. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the methods or means used. Such a person is not an employee within the meaning of the workers' compensation statutes.

11. Employer and Employee: Independent Contractor. The less skill required by a job, the greater the indication that the worker is an employee and not an independent contractor.

Petition for further review from the Nebraska Court of Appeals, SIEVERS, Chief Judge, and HANNON and MUES, Judges, on appeal thereto from the Nebraska Workers' Compensation Court. Judgment of Court of Appeals reversed, and cause remanded with direction.

William J. Ross, of Ross, Schroeder, Brauer & Romatzke, Kearney, for appellant.

Don Stenberg, Attorney General, and Lynne R. Fritz, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

FAHRNBRUCH, Justice.

The issue in this litigation is whether Donna Pettit, a chore provider of an aged and disabled individual under the Medicaid Waiver Program, was an employee of the Nebraska Department of Social Services (DSS) when she injured her lower back while providing chore services.

The Workers' Compensation Court found that Pettit did not prove that she was a DSS employee. Upon appeal, the Nebraska Court of Appeals reversed the Workers' Compensation Court and held that, as a matter of law, Pettit was a DSS employee when she was injured. Pettit v. State, 95 NCA No. 28, case No. A-94-797, 1995 WL 421036 (not designated for permanent publication).

The record fails to reflect that there was a clear inference as to whether Pettit was an employee or an independent contractor when she was injured. As a result, we reverse the holding of the Court of Appeals, because the employee-contractor issue was a question of fact and not a matter of law. We hold that there was sufficient competent evidence in the record to support the Workers' Compensation Court's determination that Pettit was not an employee of DSS.

ASSIGNMENTS OF ERROR

In substance, DSS claims that the Court of Appeals erred (1) in determining, as a matter of law, that Pettit was a DSS employee; (2) in failing to hold that the Workers' Compensation Court was not clearly wrong in finding that Pettit had failed to meet her burden of proving that she was a DSS employee; and (3) in failing to follow precedent established in State v. Saville, 219 Neb. 81, 361 N.W.2d 215 (1985).

STANDARD OF REVIEW

A judgment, order, or award of the Worker's Compensation Court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Neb.Rev.Stat. § 48-185 (Reissue 1993). See, also, Toombs v. Driver Mgmt., Inc., 248 Neb. 1016, 540 N.W.2d 592 (1995).

Findings of fact made by the Workers' Compensation Court have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous. See Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995). In testing the sufficiency of the evidence to support the findings of fact, the evidence must be considered in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the successful party will have the benefit of every inference that is reasonably deducible from the evidence. Larson v. Hometown Communications, Inc., 248 Neb. 942, 540 N.W.2d 339 (1995).

On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the inferior courts. Stansbury v. HEP, Inc., 248 Neb. 706, 539 N.W.2d 28 (1995).

Ordinarily, the party's status as an employee or an independent contractor is a question of fact. However, where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law. Hemmerling v. Happy Cab Co., 247 Neb. 919, 530 N.W.2d 916 (1995); Stephens v. Celeryvale Transport, Inc., 205 Neb. 12, 286 N.W.2d 420 (1979). By stating "where the inference is clear," this court means that there can be no dispute as to pertinent facts pertaining to the contract and the relationship of the parties involved and only one reasonable inference can be drawn therefrom. See, Vontress v. Ready Mixed Concrete Co., 170 Neb. 789, 104 N.W.2d 331 (1960); Mansfield v. Andrew Murphy & Son, 139 Neb. 793, 298 N.W. 749 (1941).

FACTS

In July 1991, Pettit began providing chore services for Virginia Poels, a DSS client, as part of the Medicaid Waiver Program. Dorelle Wilson, a DSS resource developer for the Medicaid Waiver Program, testified that the Medicaid Waiver Program allowed low-income people to be cared for in their homes rather than in nursing homes. Twylla Stevens, a DSS case manager for the Medicaid Wavier Program, testified that DSS' role is one of an advocate between the client and the provider, ensuring that state and federal criteria and health and safety needs are met.

Wilson testified that in searching for chore providers, she would "tap everything that [she] could" and one time even "knocked door to door in a trailer park" recruiting chore providers.

Pettit held a respite care certificate from the Good Samaritan Hospital in Kearney. Pettit had previously worked various jobs, which included taking care of elderly people. None of her previous jobs of caring for the elderly were through DSS; rather, Pettit hired herself out directly to elderly clients.

Before she was engaged as a chore provider, Pettit talked to Poels by telephone. Poels approved of Pettit as her chore provider. Before providing services for a client, the chore provider must be approved by the client. The client has the authority to fire the chore provider.

Wilson informed Pettit that Pettit was an independent contractor and that she would not receive sick leave,...