280_C059

CLAIMANT INJURED IN SCAFFOLD COLLAPSE WAS EMPLOYEE, NOT INDEPENDENT CONTRACTOR

Workers Compensation	Employer
Independent Contractor	Employee

Andres Carbajal alleged that he was injured while working on a construction project in Okmulgee, Oklahoma on April 26, 2010 when wind blew over the scaffolding he was on. He filed a claim for workers compensation benefits in the Workers Compensation Court, alleging he was employed by Precision Builders, Inc. and/or Mark Dickerson (collectively Precision) when he fell from the scaffolding. The trial tribunal denied the claim, determining that Carbajal was an independent contractor, not an employee. The three-judge panel upheld the tribunal’s decision and the Court of Civil Appeals upheld the panel’s order. Carbajal sought certiorari review.

Note: Certiorari is a writ that seeks judicial review.

The Supreme Court of Oklahoma noted that the law in effect on the date of Carbajal’s injury defined “employee” for workers compensation purposes 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.” It defined “employment” as “work or labor in a trade, business, occupation or activity carried on by an employer.” It defined “employer” as a “person, partnership, [etc.]…employing a person included within the term ‘employee’ as defined herein.”

The court pointed out the following factors to consider if there is or is not an employee/employer relationship:

• The nature of the contract between the parties (oral or written)
• The degree of control that the employer may exercise over the details of the work or the independence of the contractor or agent, based on the contract
• If the one employed engages in a distinct occupation or business for others
• If the occupation’s work is performed with or without supervision
• The skill level the occupation requires
• Whether the employer provides the tools and place of work or if the worker does
• The length of time the worker is employed
• The type of payment, whether by time or the job
• Whether the parties believe they are creating a master-servant relationship
• Whether or not the work is part of the employer’s regular business
• The right of either party to terminate the relationship without liability

Interviews and investigation revealed the following about Carbajal:

• He was a documented Hispanic worker who did not speak English and who did not complete the third grade.
• Through interpreters, Precision’s supervisors told him where to go, when to be there, what to do, when he could go to lunch, and when he could leave.
• He worked from eight to fourteen hours per day.
• He was not allowed to come and go from a construction site whenever he wanted.
• His job was framing, building doors, and installing sheetrock.
• He could not read blueprints or construction plans and he did what he was told to do.
• He did not have any special schooling or training that taught him how to do construction work.
• He had his own tool belt and tools but used only tools that Precision provided.
• He was paid in cash or by money order, based on the number of hours he worked.
• Precision provided him with travel money to go from site to site.

The court determined that the degree of control that Precision exercised over Carbajal at construction sites, Carbajal’s inability to read blueprints and plans, the fact that Precision provided the tools to do the work, and travel money that Precision gave Carbajal to go to various construction sites showed that Precision treated Carbajal as an employee. It also noted that Carbajal’s work was not based on his having a trade or professional license, or that he was a skilled artisan, or that he possessed specialized educational skills that required him to use personal judgment and skill independent of Precision’s supervision or control when he completed construction tasks.

The court concluded by stating that the exercise of judicial power is generally used to affirmatively adjudicate an issue or fact when the facts and evidence affirmatively support the decision. Workers compensation claimants have the initial burden to prove that an injury took place in the course of employment and arose out of the claimant’s employment. It also noted that the burden of proof, by a preponderance of the evidence, is on the party who requests benefits or relief in accordance with the Workers Compensation Act unless the law provides otherwise. It considered each of the factors on which evidence was presented and concluded that Carbajal met his burden to show that he was Precision’s employee. It vacated both the opinion of the Court of Civil Appeals and the order of the three-judge panel and remanded the case for further proceedings consistent with its opinion.

Supreme Court of Oklahoma. 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. No. 111,114. July 1, 2014. As Corrected July 3, 2014. 333 P.3d.258. 2014 OK 62