Timberlake v. Frigon & Frigon

• Decision Date: 07 January 1982
• Citation: 438 A.2d 1294
• Parties: John S. TIMBERLAKE v. FRIGON & FRIGON, et al.
• Court: Maine Supreme Court

Page 1294

438 A.2d 1294

John S. TIMBERLAKE v. FRIGON & FRIGON, et al.

Supreme Judicial Court of Maine.

Argued Nov. 13, 1981.

Decided Jan. 7, 1982.

Richard M. Morton (orally), Farmington, for plaintiff.

Wheeler, Arey & Millett, P.A., Clyde L. Wheeler (orally), Waterville, for defendant.

Before McKUSICK, C. J., ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A. R. J.

ROBERTS, Justice.

John S. Timberlake's Petition for Award of Compensation was denied by the Workers' Compensation Commission. From a pro forma decree affirming that denial Timberlake brings this appeal. We vacate the judgment below, and remand to the Commission for further proceedings.

The facts presented to the Commission were not in dispute, primarily because the Commissioner, in effect, directed a verdict for Frigon & Frigon (hereafter "Frigon") at the conclusion of Timberlake's presentation of evidence. ¹

On August 27, 1979, Timberlake fell a distance of fifteen feet while helping Frigon load logs onto Timberlake's truck. The parties stipulated that Timberlake was injured as a result of the fall, and that he was disabled for approximately two months thereafter. The issue before the Commissioner was that of Timberlake's employment status: was he an employee of Frigon or an independent contractor? If the latter, he would not be entitled to workers' compensation benefits from Frigon. See In re Dudley, Me., 256 A.2d 592, 594 (1969).

Before 1977 Timberlake worked as a truck driver on a salary or per hour basis. In 1977 he went into the trucking business on his own, owning and maintaining his own truck. He worked for several other jobbers before Frigon, with whom he started work five weeks prior to the date of his injury. Timberlake's 1978 and 1979 federal income tax returns reflect that Timberlake listed himself as self-employed, that he had an employer's identification number, that he paid self-employment taxes, and that he deducted depreciation, insurance and repair expenses for his truck. Frigon withheld no money from Timberlake's pay for taxes.

Frigon is a jobber who was working for Boise-Cascade. Its job was to cut wood and transport it to Boise-Cascade's mill. Frigon did not own any trucks. Instead, Frigon hired several truckers to haul wood; all, including Timberlake, were paid at the same rate by the cord of wood, delivered. Frigon directed what kind of wood Timberlake hauled (his rate of pay varied according to the kind of wood hauled), where to take the loads of wood (but not how to get there), how many loads to take each day, and whether Timberlake was to work at all each day (on days Timberlake did not work for Frigon he sometimes hauled loads for others). The loading of trucks was done by Frigon, while unloading appears to have been performed by employees of Boise-Cascade. Timberlake had no written contract with Frigon; he believed that he could quit or be fired at anytime. Timberlake drove alone.

The Commissioner issued a decision that stated merely that Timberlake's Petition was denied. Timberlake did not thereafter request further findings of fact or conclusions of law pursuant to 39 M.R.S.A. § 99, thus depriving this court of the ability "to determine whether (the Commissioner's) decree was based upon a misapprehension of fact or a misapplication of law to the facts." White v. Forster Manufacturing Co., Me., 421 A.2d 55, 56 (1980). We must treat the Commissioner as having made all factual determinations which could, in accordance with correct legal concepts, support his decision, ² testing the assumed findings by the clearly erroneous standard. Gorrie v. Elliott Jordan & Son, Inc., Me., 408 A.2d 1008, 1011 (1979).

We must next determine the proper standard of review. Where, as here, the facts are undisputed, we have characterized the issue of employment status both as a question of law ³ and as a question of fact. ⁴ Our ambivalence may perhaps be explained by our implicit recognition that while the issue of employment status is not a pure factual question, neither is it an area in which we are as qualified as the Commission to make individual judgments in specific factual settings. In short, we defer to the Commission's expertise where it has applied the relevant legal criteria to the facts. See Wing v. Cornwall Industries, Me., 418 A.2d 177, 181 (1980); Jacobsky v. C. D'Alfonso & Sons, Inc., Me., 358 A.2d 511, 514-15 (1976). Thus, we recognize that there exists with regard to the issue of employment status a decisional range in which reasonable Commissioners, acting rationally, could disagree. Only when a Commissioner's decision falls outside of this range, or when a Commissioner misconceives the meaning of the applicable legal standard, are we justified in interfering with his determination. See Wing, 418 A.2d at 181.

Timberlake has the burden of proof on the issue of employment. ⁵ Black v. Black Brothers Construction, Me., 381 A.2d 648, 650 (1978). "Employee" is defined in part as "every person in the service of another under any contract of hire, express or implied, oral or written ...." 39 M.R.S.A. § 2(5)(A). We have often stated that the vital issue in proving an employee-employer relationship is whether or not the employer has the power of control or superintendence over the petitioner. See, e.g., Black, 381 A.2d at 650; Poulette v. Herbert C. Haynes, Inc., Me., 347 A.2d 596, 599 (1975); In re Dudley, Me., 256 A.2d 592, 595 (1969); Murray's Case, 130 Me. 181, 185, 154 A. 352, 354 (1931). We have further enumerated eight commonly accepted tests helpful in resolving this issue, noting that no one factor will be decisive:

"(1) the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or his distinct calling; (3) his employment of assistants with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer."

Madore v. Liberty National Bank, Me., 289 A.2d 36, 38 (1972) quoting Murray's Case, 130 Me. at 186, 154 A. at 354; Kirk v. Yarmouth Lime Co., 137 Me. 73, 78, 15 A.2d 184, 187 (1940).

The "control test" springs from the common law definition of "employee" or "servant," formulated for vicarious tort liability purposis, and serving to limit an employer's liability for injuries, not to his employees, but rather caused by his employees. 1C A. Larson, Workmen's Compensation Law § 43.10 (1980). We recognize that the purpose of limiting vicarious tort liability served by the common law definition of "servant" differs from the purposes which the concept of "employee" serves in the Workers' Compensation Act, see id. § 43.42, and that "(i)n applying the general principles of law governing the relations of master and servant to cases involving (Workers') Compensation, it should be kept in mind that by explicit legislative mandate the provisions of the Act are to be liberally construed." Murray's Case, 130 Me. at 185, 154 A. at 354.

In the past we have emphasized the right to control and stated that it is best established by the right in the employer to discharge the employee at will. See In re Dudley, 256 A.2d at 595; Murray's Case, 130 Me. at 187-88, 154 A. at 354-55. While the control test is useful in determining employment status, we see such factors as the nature of the petitioner's work and its relation to the employer's business as having special importance beyond the determination of the employer's right to control. In so stating, we would diminish somewhat the impact of common law master-servant concepts and seek to accomplish in this uniquely statutory field a result more consistent with the ultimate purposes of the Workers' Compensation Act. ⁶

(T)he law should consider, in determining whether an employer-employee status exists, not only the matter of control but also the relationship between the claimant's own occupation and the regular business of the asserted employer. Larson, (Workmen's Compensation Law) §§ 43.50 and 43.51. With regard to the latter aspect of the problem, two considerations have weight: First, how much of a separate calling or profession is the claimant's occupation? How skilled is it? To what extent may it be expected to carry its own share of the Workmen's Compensation responsibility? Second, what relationship does the claimant's work bear to the regular business of the asserted employer? Is there a continuous connection or only an intermittent one, or is there no connection at all?

Sandy v. Salter, 260 Ark. 486, 489, 541 S.W.2d 929, 931 (1976). By giving special emphasis to these factors, the Commission will be able to apply a functional test most helpful in answering the ultimate question of whether or not the relationship between the petitioner and the employer is of the type which was intended to be protected by the Workers' Compensation Act. See Searfus v. Northern Gas Co., 472 P.2d 966 (Alaska 1970); Burton v. Crawford and Co., 89 N.M. 436, 553 P.2d 716 (1976); Woody v. Waibel, 276 Or. 189, 554 P.2d 492 (1976). These two factors, as well as the other commonly accepted tests of control, are all "basically designed to draw a distinction between those occupations which are properly classified as separate enterprises and those which are in fact an integral part of the employer's regular business." Smith v. E.T.L. Enterprises, 155 N.J.Super. 343, 350, 382 A.2d 939, 942 (1978).

In the instant case Timberlake was hired to haul logs for an unspecified period of time. His pay was based upon what he hauled each day, not upon a lump sum for completing some assigned job. Timberlake was not required to furnish any tools other than his truck; Frigon supplied tools for loading the truck....