Rommae Hayes v. Ginger C, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-104894

Employee: Rommae Hayes

Alleged Employer: Ginger C, LLC

Insurer: None

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial

Relations Commission (Commission) for review as provided by § 287.480 RSMo.

Having reviewed the evidence and considered the whole record, the Commission finds

that the award of the administrative law judge is supported by competent and

substantial evidence and was made in accordance with the Missouri Workers'

Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award

and decision of the administrative law judge dated December 6, 2017, and awards no

compensation in the above-captioned case.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued

December 6, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 12th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

SEPARATE CONCURRING OPINION FILED

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Rommae Hayes

I did not participate in the August 8, 2018, oral argument in this matter, held prior to my appointment to the Commission. However, I have reviewed the evidence, read the briefs of the parties, listened to an audio recording of the oral argument, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the administrative law judge's decision in this case should be affirmed.

Robert W. Cornejo, Chairman

Impry No.: 13-104894

Employee: Rommae Hayes

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's denial of compensation in this case.

Based on the employee's propensity to exaggerate and minimize details of his criminal history, the majority finds he is not credible. Relying on employer's witnesses, the majority concludes that the employee is not a covered worker and that employer Ginger C is not subject to the Workers' Compensation Law.

At hearing, the parties stipulated that "[O]n June 26, 2013, while in the employment of Ginger C, LLC, claimant sustained an injury by accident in Columbia, Missouri (emphasis added)."[^1]

The majority makes the following fact-findings relating to events surrounding the employee's relationship with employer Ginger C and his undisputed June 26, 2013, work injury:

- Nahkle Asmar, owner of Ginger C, has been a professor at the University of Missouri for 30 years ... [H]e created Ginger C as a side rental business several years ago and currently owns approximately 20 rental houses and apartments.

- The company's sole income is rent. Ginger C does not perform construction ... [It] hires contractors to repair and remodel its buildings for rental on an as needed basis.

- Ginger C had no employees in 2013 and did not issue any W2s.

- Claimant worked sporadically for Ginger C from April 1, 2013, through July 2013. His work ranged from changing light bulbs to full remodels ... Claimant's hours worked were erratic and typically less than 40 hours a week.

- Roland Nabhan ... began working as an independent contractor for Ginger C in 2013. ... Mr. Nabhan had his own tools and bid jobs for Ginger C. He was free to take jobs from other companies and turn down jobs from Ginger C. He worked from job to job, was paid by the job and sometimes paid for the materials. Mr. Asmar did not control how Mr. Nabhan performed his job.

- In June 2013, Mr. Asmar purchased the Hinkson property, the site of the injury in question. A contractor gave him a bid to repair the basement floor. Claimant and Roland Nabhan described themselves as concrete experts and outbid the initial contractor.

- Mr. Nabhan worked with Claimant and [another worker named] Mr. Magee on the Hinkson property concrete job. Mr. Nabhan arranged for delivery of the concrete and tools.

[^1]: Transcript, 5.

Injury No.: 13-104894

Employee: Rommae Hayes

- 2 -

- On June 26, 2013, Mr. Magee was pouring the concrete into the basement, and as Claimant smoothed it out, some of the concrete got in his boots and burned him.

- [Mr. Asmar] was not present when the concrete work was performed, and he did not control the way Claimant did this job, or any job. Mr. Asmar did not provide the tools, did not own any tools or machines, and did not control the hours worked.

- [Employee] went to the Emergency Room and was diagnosed with alkali burns. Claimant was admitted to the burn unit and had skin grafts performed on both legs. Claimant spent four days in the hospital, and had follow up care with a burn specialist.²

Section 287.030.1 defines "employer" for purposes of the Workers' Compensation Law as:

(1) Every person, partnership, association, corporation, limited liability partnership or company ... using the service of another for pay.

(3) Any of the above-defined employers must have five or more employees to be deemed an employer for purposes of this chapter... except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for purposes of this chapter if they have one or more employees.

Based on the above-cited facts, the majority concludes employee was not an "employee" under the Workers' Compensation Law. The majority presumably bases its decision on a finding that employee was acting as an independent contractor at the time of his June 26, 2013, injury.

The majority further concludes that Ginger C is not an employer under the Law. In so finding, it cites the following: (1) Typically only three men worked on Mr. Asmar's properties; (2) Ginger C did not hire any full-time employees; (3) Ginger C's primary business purpose and sole income is apartment rental; (4) Ginger C did not build new construction or rehab and "flip" houses; and (4) Ginger C was not hired to perform construction work.³ Based on these facts the majority affirms the administrative law judge's finding that, pursuant to § 287.030.1, Ginger C does not have five or more employees and is not a construction industry employer.

Section 287.040.1 provides:

1. Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this

² See ALJ's Award, pp. 4-7.

³ Id., p. 9.

Implyeer: Rommae Hayes

- 3 -

chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

In *McCracken v. Wal-Mart Stores East, LP*, 298 S.W. 3d 473, 480 (Mo. 2009) the Missouri Supreme Court noted:

> [Section 287.040.1] is designed to prevent employers from evading the Act's requirements by hiring independent contractors to perform work the employer otherwise would hire ordinary employees to perform. *Bass*, 911 S.W.2d at 619. It does so by defining the company that hires the independent contractor as a statutory employer. This allows an injured employee to recover workers' compensation from the company if injured, just as if the work had not been farmed out to an independent contractor (emphasis added). *Huff v. Union Elec. Co.*, 598 S.W.2d 503, 511 (Mo. App. 1980). The party asserting the existence of statutory employee status bears the burden of proving that the injured person was a statutory employee of the purported statutory employer. *Martinez v. Nationwide Paper*, 211 S.W.3d 111, 115 (Mo. App. 2006). One is a statutory employee if (1) the work is performed pursuant to a contract, (2) the injury occurs on or about the premises of the alleged statutory employer and (3) the work is in the usual course of the alleged statutory employer's business. *Bass*, 911 S.W.2d at 619.

The Commission has previously held that a determination of statutory employment is not predicated on a minimum number of employees, and that an employee's status as an independent contractor does not preclude finding of a statutory employer/employee relationship.

The following evidence in this case demonstrates proof of all three elements of above-cited statutory employment test:

At the time of his work injury, the employee had been in the regular employment of employer Ginger C working as a laborer, providing light construction to heavier construction work relative to development of employer's rental properties. In performing work for Ginger C, employee earned an hourly wage for work actually performed, initially 12.00 per hour and later increased to 15.00 per hour. Ginger C's owner testified that he entered into an agreement with employee to perform work, including the concrete work performed at employer's Hinkson property, in response to employee's oral bid. Mr. Asmar did not contest that the employee performed work for his company, Ginger C, pursuant to an oral contract.

4 See *Vitaliano Rodas v. The Carter Group, Inc.*, Villa Bella, LLC and *Aandrea Carter, Injury No. 15-078084* (LIRC, April 12, 2018), now pending before the Western District Court of Appeals. See *Villa Bella LLC, Apel. v. Vitaliano Rodas, Res. WD81771* (filed May 10, 2018).

Injury No.: 13-104894

Employee: Rommae Hayes

- 4 -

The parties further stipulated that the employee's June 26, 2013, injury occurred when he was pouring a concrete floor in the basement of one of employer's rental properties, known as the Hinkson property. The property's dilapidated condition required complete remodeling including removal of its old concrete floor and replacement with a new concrete floor. Employer's owner, Nakhle Asmar, hired employee to perform this work for a wage of $12.00/hour. Employer does not dispute that the employee's injury occurred on employer's premises.

In describing employer's business activity, Asmar explained that Ginger C bought dilapidated housing, then fixed the properties up to rent, and, at times, to sell for profit. Ginger C owned over fifty properties many of which had multiple units, multiple renters and apartment buildings. Many of the improvements relating to the dilapidated properties purchased by Ginger C included installation of new siding, floors, roofing, and interior modeling. Fixing, repairing and remodeling activity are essential functions of buying dilapidated properties regardless of whether the intended purpose is to rent or sell for profit. The work employee was performing at the time of his injury was clearly within the usual course of employer's business.

The facts and evidence in this case, independent of employee's testimony, support the existence of a statutory employment relationship between employee and employer Ginger C. Pursuant to the provisions of § 287.040.1, the accident and injuries employee sustained while working for employer on June 26, 2013, should therefore be found compensable.

Because the majority finds otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: Rommae Hayes

Injury No.: 13-104894

Dependents: None

Before the

Alleged Employer: Ginger C, LLC

Division of Workers' Compensation

Department of Labor and Industrial

Relationships of Missouri

Department of Missouri

Industriat

Industry City, Missouri

Industriat Party: Second Injury Fund (SIF)

Insurer: None

Hearing Date: August 29, 2017 and September 6, 2017

Checked by: KMH

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: June 26, 2013
5. State location where accident occurred or occupational disease was contracted: Columbia, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? No
7. Did employer receive proper notice? n/a
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? n/a
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant sustained concrete burns to his right and left legs while working as an independent contractor pouring concrete at a property owned by Ginger C, LLC.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: right and left lower extremity
14. Nature and extent of any permanent disability: n/a
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? n/a

1. Value necessary medical aid not furnished by employer/insurer? $\mathrm{n} / \mathrm{a}
2. Employee's average weekly wages: \mathrm{n} / \mathrm{a}
3. Weekly compensation rate: \mathrm{n} / \mathrm{a}
4. Method wages computation: \mathrm{n} / \mathrm{a}$

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

None

TOTAL:

NONE

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of \mathrm{n} / \mathrm{a} % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rommae Hayes

Dependents: None

Alleged Employer: Ginger C, LLC

Additional Party: SIF

Insurer: None

Injury No.: 13-104894

Before the

Division of Workers' Compensation

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter August 29, 2017 and concluded on September 6, 2017. Rommae Hayes (Claimant) was represented by attorney Truman Allen. Ginger C, LLC (alleged Employer) was represented by attorney Ross Bridges. SIF was represented by Assistant Attorney General Kirsten Dunham.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant sustained an injury by accident while doing work for Ginger C, LLC on June 26, 2013, in Columbia, MO.
2. Ginger C had notice of the injury and a claim for compensation was timely filed.
3. Ginger C has paid no benefits to date.

The parties stipulated the issues to be resolved are as follows:

1. Whether Claimant's injury by accident arose out of and in the course of employment
2. Medical causation
3. Liability for past medical expenses
4. Rate
5. TTD
6. PPD
7. SIF liability due to Ginger C's uninsured status

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 13-104894

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 57-year-old male. He testified he has worked in construction for 40 years and he currently operates a handyman service. In the past, he worked for companies performing paving, concrete work and highway work.

1. Claimant was released from prison February 25, 2013, and was paroled to live at Reality House in Moberly, Mo. Claimant testified that in order to live at Reality House, residents must be actually "employed" 40 hours a week, and cannot work as sub-contractors. Wes Magee also lived at Reality House, and performed work for Ginger C. Claimant's parole officer asked Mr. Magee to help Claimant get a job with Ginger C.

1. Nahkle Asmar, owner of Ginger C, has been a professor at the University of Missouri for 30 years and Chairs the Mathematics Department. He testified he created Ginger C as a side rental business several years ago and currently owns approximately 20 rental houses and apartments. The company's sole income is rent. Ginger C does not perform construction, does not have enough work to keep an employee busy, does not purchase and "flip" properties, and hires contractors to repair and remodel its buildings for rental on an as needed basis. Mr. Asmar testified everybody working for him in 2013 was an independent contractor and he made it clear they work by the job. Ginger C had no employees in 2013 and did not issue any W2s.

1. Claimant testified he met Mr. Asmar after his first day of work for Ginger C, and Mr. Asmar did not tell him he was an independent contractor or that he worked job to job. When Claimant started working for Ginger C, he had some of his own tools, but Mr. Asmar bought others tools for Claimant to keep, and took the cost out of Claimant's paychecks. Claimant testified he frequently met Mr. Asmar at Lowe's in the morning to purchase materials needed for the jobs. Claimant did not pay for materials, but occasionally paid cash for small tools and was reimbursed by Mr. Asmar.

1. Claimant testified he managed Ginger C's properties, kept the keys to the properties, and tenants called him directly with any problems. Claimant testified Mr. Asmar does not have construction skills and hired various handymen or contractors as needed. Mr. Asmar was the boss and decided the extent of repairs to do to a building. He did not tell Claimant how to do the work, and he relied on Claimant to tell him what had to be done. Claimant assessed each job and if he was not qualified to do the job, he hired somebody else. Claimant testified his hours changed from job to job. Mr. Asmar left the hours worked up to Claimant, and Claimant worked until the job was done.

1. Claimant worked sporadically for Ginger C from April 1, 2013, through July 2013. His work ranged from changing light bulbs to full remodels. The checks outlined in Mr. Asmar's deposition indicate Claimant's hours worked were erratic and typically less than 40 hours a week. Claimant and Mr. Asmar testified the maintenance calls all went directly through Mr. Asmar. He directed some of the general maintenance calls to

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Claimant, and Claimant had the opportunity to turn down a call. Many times Claimant was not available because he was working on another job in Moberly.

1. Claimant testified he worked Monday through Friday, and he has no doubt in his mind that he worked over 60 hours a week. Claimant testified in his deposition that he worked for Ginger C for a year before the injury, and he got a paycheck every week. He "never missed a week". He testified he did not do jobs for anyone else while working for Ginger C.
2. Mr. Asmar wrote Claimant a check every Friday, and wrote him another check on Mondays for any overtime worked on the weekend. Mr. Asmar paid $\ 10 an hour and gas money for the use of Claimant's truck. Claimant testified he got a raise to $\ 12 an hour after two weeks of work because he was such a good worker. Claimant testified in his deposition that he was never paid by the job, and was always paid by the hour. He testified Mr. Asmar gave them 1099s, and they had to pay their own taxes, but he Claimant did not file a tax return in 2013 or 2014. He testified he has check stubs from Ginger C, but does not have any documentation to prove he was paid by Mr. Asmar. He also testified during the first day of trial that he has copies of paychecks and can produce them. No such copies were produced either day of trial, despite a subpoena duces tecum asking for his tax returns and paystubs or checks. Claimant's attorney responded that Claimant is unable to locate his tax returns and does not have any pay slips or records regarding pay. (Exhibits B and C)
3. In June 2013, Mr. Asmar purchased the Hinkson property, the site of the injury in question. A contractor gave him a bid to repair the basement floor. Claimant and Roland Nabhan described themselves as concrete experts and outbid the initial contractor.
4. Claimant testified he told Mr. Nabhan that they did not have the skills to do concrete work, but Mr. Nabhan told Mr. Asmar that he, Mr. Magee, and Claimant could do the concrete job. Claimant testified at his deposition that he did not tell Mr. Asmar he could do this job for a certain dollar amount, and he did not bid this concrete job because he was already working full-time.
5. Mr. Nabhan arranged for delivery of the concrete and tools. On June 26, 2013, Mr. Magee was pouring the concrete into the basement, and as Claimant smoothed it out, some of the concrete got in his boots and burned him. Claimant agreed Mr. Asmar did not tell him how to do the concrete job and was not there while they were pouring the concrete. Claimant testified this was a Friday evening, so Mr. Asmar came to Hinkson to pay them. Claimant testified he told Mr. Asmar about his injury, and Mr. Asmar called his wife, who is a doctor, to get an ointment for Claimant's legs. They went to get the ointment, and Claimant then returned to Reality House. That evening, he pulled off his boots and had concrete burns on his legs.
6. Mr. Asmar testified he did not pay for or procure the concrete. He was not present when the concrete work was performed, and he did not control the way Claimant did this job, or any job. Mr. Asmar did not provide the tools, did not own any tools or machines, and did not control the hours worked. Mr. Asmar testified in his deposition that late in the day on

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 13-104894

the date of injury, Mr. Nabhan called and was very upset that Claimant had involved them in a mess. Claimant said he was an expert in concrete, but he was not. Mr. Nabhan, Mr. Magee and Claimant all had concrete burns and had gone to the pharmacy for an over the counter cream. Mr. Asmar testified Claimant's assertion that Mr. Asmar's wife prescribed an ointment is false. She never gave medical advice and did not know about the injury until after the three had been to the pharmacy.

1. Claimant asserts, and the medical records establish, that the accident occurred June 26, 2013. He insisted this was a Friday, Mr. Asmar came to the job site to pay the employees, and he contacted his wife for a prescription. June 26, 2013 was a Wednesday.

1. Claimant testified he got up in the middle of the night on the injury date, and he could not walk. He went to the Emergency Room and was diagnosed with alkali burns. Claimant was admitted to the burn unit and had skin grafts performed on both legs. Claimant spent four days in the hospital, and had follow up care with a burn specialist. Claimant testified he missed 2-3 weeks of work, and he also testified he took off work for a month. He has had no medical treatment since his release from treatment in mid 2013.

1. In his deposition, Claimant testified he returned to work for Ginger C on an hourly basis a few weeks after the injury, but he later quit working for Ginger C because Mr. Asmar did not pay the medical bills. Mr. Asmar instead offered to pay attorney fees in order for Claimant to file bankruptcy. Mr. Asmar testified in his deposition that Claimant did not ask him to pay the hospital bill.

1. Claimant continues to have sensitive skin on both legs below the knees. His skin is thinner and is often cold. He can't work as a tree trimmer anymore because he can't put gaffs on his legs without tearing his skin open. His feet fall asleep, his toes cramp, and he has nerve damage. He has a patch of discolored skin and a scar over the graft site. He has not had to seek medical treatment for an open wound since he was released from treatment in 2013.

1. Claimant's medical expert, Dr. Volarich, reviewed the records, examined Claimant, and issued a report in September 2015. He opined Claimant's injury was the prevailing factor in causing his disability and ongoing skin sensitivity in both legs. He rated Claimant's disability at 15% of the body as a whole.

1. University Hospital medical bills (Exhibit 3) reflect a zero balance. Claimant has not paid any of the bills and testified he has "no clue" if the bills are reasonable. Claimant testified the hospital has threatened to sue him, has garnished his wages, and there are people trying to get him to pay the bills. He testified during the first day of trial that he could produce written evidence that someone is trying to collect the bills. He did not produce any documentation at the second day of trial.

1. Claimant has a long history with the criminal justice system, as outlined in Exhibit E. At trial, he testified he was in prison for child support and marijuana, and these were the only criminal charges he had ever received. During his deposition, he testified he had spent 6 months in jail for child support "mostly", "basically got probation" for felony

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 13-104894

possession of a controlled substance, and had no other charges on his record. At trial, he admitted under cross-examination that he has been charged with tampering with a utility, stealing, operating without a license, colliding with a vehicle, trespass, peace disturbance, nonpayment of child support, violating an order of protection, felonious restraint, and assault in the third degree. He did not remember his prior charges for harassment and adult abuse without stalking. These charges date back to 1985, and show a pattern of criminal behavior, probation violations and revocations, and numerous prison sentences.

1. Roland Nabhan also testified at trial. He began working as an independent contractor for Ginger C in 2013. Ginger C did not offer health insurance, sick leave, or vacation time. Mr. Nabhan had his own tools and bid jobs for Ginger C. He was free to take jobs from other companies and turn down jobs from Ginger C. He worked from job to job, was paid by the job and sometimes paid for the materials. Mr. Asmar did not control how Mr. Nabhan performed his jobs.

1. Mr. Nabhan worked with Claimant and Mr. Magee on the Hinkson property concrete job. Mr. Asmar was not present while they performed this job. Mr. Nabhan also sustained concrete burns and went to the pharmacy with Claimant. They purchased over the counter medication recommended by the pharmacist. Mr. Nabhan testified Mr. Magee asked him to arrange for Mr. Asmar to pay Mr. Magee for favorable testimony in this case. Mr. Nabhan testified during his deposition that Claimant was not dependable, disappeared for months at a time, and often did not show up to work.

1. Brian Beckstrom testified at the request of Ginger C. He described Claimant as not trustworthy. He met Claimant in 2011 when Claimant came to his house looking for the prior owner. Mr. Beckstrom later wrote a contract for Claimant to perform work on his house and gave Claimant a check to buy materials. Claimant accepted the check, but never returned to do the work. Mr. Beckstrom filed a lawsuit against Claimant. Claimant did not appear in court and judgment was entered in Mr. Beckstrom's favor. (Exhibit F) Claimant testified in his deposition that he does not remember going to court for this and he "may have been in jail at the time". Mr. Beckstrom testified since this judgment was entered, others have called him with similar complaints about Claimant.

1. The DWC Fraud Unit investigated allegations that Ginger C had no insurance. The Fraud Unit determined it was unable to substantiate a violation of Chapter 287.128, and no criminal charges were filed. (Exhibit I)

1. Claimant is not credible. His testimony was full of false statements and exaggerations.

1. Mr. Asmar and Mr. Nabhan are credible.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 13-104894

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

Claimant's trial and deposition testimony was rambling and contained so many inconsistencies as to be rendered not believable. Claimant has an extensive criminal history that he attempted to minimize until cross-examination. Mr. Beckstrom credibly testified Claimant fraudulently induced him into paying for work on his home that Claimant never performed.

I find Claimant is not credible, and his testimony cannot be relied on.

Claimant contends he is an employee of Ginger C and was injured in the course and scope of his employment. He is seeking uninsured benefits from the SIF. Ginger C contends it is not an employer, is not in the construction industry, and was not required to carry workers' compensation insurance.

Section 287.020.1 defines an "employee" to mean "every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations."

Courts look at a number of factors in determining whether a person is an employee or independent contractor. These factors include, but are not limited to, the extent and exercise of control, method of payment for services, furnishing of equipment, and relationship of the services to the regular business of the alleged employer.

In the case at hand, Mr. Asmar and Claimant both testified Mr. Asmar was not present at the job sites and did not control or direct Claimant on how to do his work. Mr. Asmar decided what work was to be done, and Claimant determined how to do the work. Claimant's hours worked were up to him. The only checks in evidence indicate Claimant's hours worked were erratic. Mr. Asmar testified Claimant was free to turn down maintenance calls and was free to take other jobs while performing work for Ginger C. Claimant was paid by the job based on the amount of labor and materials the job required. Ginger C did not provide equipment or tools, and Claimant had his own tools. Ginger C's regular business is apartment rental, and the company was not hired to build or remodel. Ginger C did not provide any health insurance, sick leave or vacation benefits. Claimant produced no payroll records, W2 forms, or tax records to

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 13-104894

establish employment. I find Claimant was not an "employee" under the workers' compensation act.

Even if Claimant was an employee, Ginger C is not an employer required to have workers' compensation insurance. Section 287.030.3 provides that an employer "must have five or more employees to be deemed an employer for the purposes of this chapter...except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for the purposes of this chapter if they have one or more employees."

Claimant asserts Ginger C's business is construction, and therefore Ginger C should have had workers' compensation coverage even with one employee. Ginger C's primary business purpose and sole income is apartment rental. Ginger C did not build new construction or rehab and "flip" houses. Ginger C was not hired to perform construction work. Mr. Asmar credibly testified Ginger C did not hire any full-time employees and hired Claimant and multiple other handymen to perform repairs as needed. I find Ginger C is not a "construction industry employer".

The testimony of Claimant, Mr. Asmar and Mr. Nabhan also establishes there were typically only three men working on Mr. Asmar's properties. Even if these three men were considered employees, they comprise less than the five employees needed to trigger the requirement to carry workers' compensation insurance.

Accordingly, Ginger C is not subject to the workers' compensation act and did not fail to insure.

1. SIF liability due to Ginger C's uninsured status

Ginger C was not subject to the workers' compensation act and was not required to have workers' compensation insurance. Accordingly, Ginger C and the SIF have no liability.

CONCLUSION

Claimant was not an employee of Ginger C. Ginger C was not an employer under the workers' compensation act. The SIF has no liability, and the remaining issues are moot.

I certify that on 12-6-17, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By

Mop

Made by:

KATHLEEN M. HART

Administrative Law Judge

Division of Workers' Compensation

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