Christian v. Arkansas Crane & Crawler

John CHRISTIAN v. ARKANSAS CRANE & CRAWLER

CA 96-275                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered December 18, 1996


1.   Workers' compensation -- appeal from Commission's decision --
     factors on review. -- In reviewing cases on appeal from the
     Workers' Compensation Commission, the appellate court affirms
     the Commission's decision if supported by substantial
     evidence; substantial evidence is that which a reasonable
     person might accept as adequate to support a conclusion; a
     decision of the Workers' Compensation Commission should not be
     reversed unless it is clear that fair-minded persons could not
     have reached the same conclusions if presented with the same
     facts.   

2.   Workers' compensation -- evidence supported decision that
     appellant was appellee's employee -- decision of Commission
     reversed and remanded. -- Where the Commission had before it
     a statement from the president of appellee corporation that
     appellant was considered an employee of that entity, 
     appellant received a W-2 form from appellee and was paid on an
     hourly basis, and appellant's injuries resulted from work he
     was ordered to do at his employer's home after having
     reporting to his designated place of employment, the evidence
     supported a finding that appellant was at all relevant times
     an employee of appellee; based upon the evidence, it was clear
     that fair-minded persons could not have reached the same
     conclusion as the Commission that appellant was not eligible
     for benefits; the case was reversed and remanded for an award
     of benefits.


     Appeal from Arkansas Workers' Compensation Commission;
reversed and remanded.
     Lane, Muse, Arman & Pullen, by:  Donald C. Pullen, for
appellant.
     Bailey, Trimble, Capps, Lowe, Sellars, & Thomas, by:  Peter O.
Thomas, Jr., for appellee Arkansas Crane & Crawler.
     Huckabay, Munson, Rowlett & Tilley, P.A., by:  Jim Tilley, for
appellee Garrett Excavating.
     
     Olly Neal, Judge.
     John Christian appeals from an order of the Arkansas Workers'
Compensation Commission finding that he was not an employee covered
under Arkansas Workers' Compensation Law at the time of his injury,
thereby precluding an award of workers' compensation disability
benefits.  For reversal, appellant contends that the Commission
erred as a matter of law in ruling that appellant was not an
employee of Arkansas Crane & Crawler and that the Commission's
decision was not supported by substantial evidence.  We find merit
in appellant's argument and reverse and remand.
     Appellant sustained an injury on June 2, 1994, when he fell
twenty feet from a ladder while working at the residence of Gilbert
Garrett.  Garrett is an officer in several corporations including
Arkansas Crane & Crawler, Garrett Excavating, and Garrett
Enterprises.  Arkansas Crane & Crawler primarily engages in the
purchase and sale of equipment; Garrett Excavating contracts
excavation type work, and Garrett Enterprises purchases property
for investment purposes.  Mr. Garrett pays for work performed on
his home through Garrett Enterprises.  After the injury appellant
received a week's pay from Arkansas Crane & Crawler and an advance
of $200 written on the bank account of Garrett Enterprises.  
     There was some dispute as to the nature of the relationship
between the parties.  When appellant filed a claim for workers'
compensation disability benefits he stated that he was employed by
either Arkansas Crane & Crawler, Garrett Excavating, or Garrett
Enterprises.  At the hearing before the administrative law judge
Mr. Garrett acknowledged that he considered appellant to be an
employee of Arkansas Crane & Crawler.  Appellant testified that at
one time he had worked as an independent contractor hired to paint
the interior of Mr. Garrett's pool house, which was located
adjacent to his personal residence.  After completing the interior
of the pool house, appellant went to Mr. Garrett to seek work with
one of his companies.  Appellant testified that he was seeking
stable employment because of his wife's medical condition.  Mr.
Garrett testified that he could not recall making a definite offer
of employment, but did recall offering to allow appellant to work
for him at Arkansas Crane & Crawler.  Mr. Garrett also testified
that he neither promised appellant full time employment, nor did he
tell appellant he would not be employed full-time.  Mr. Garrett
testified that he intended to keep appellant around to work if his
capabilities were such that he could perform additional tasks. 
Under examination by the administrative law judge, Mr. Garrett
testified that he considered appellant to be an employee of
Arkansas Crane & Crawler.
     The administrative law judge dismissed Garrett Enterprises and
Garrett Excavating as parties to the action upon finding that
Garrett Enterprises and Garrett Excavating had no liability in the
matter.  The administrative law judge found that appellant was an
employee of Arkansas Crane & Crawler, that he had sustained a
compensable injury and awarded benefits for an assessed 20%
permanent impairment rating to the body as a whole.
     Arkansas Crane & Crawler appealed to the Commission, which
after conducting a de novo review of the record, reversed the 
administrative law judge's finding that appellant had sustained a
compensable injury and denied appellant's entitlement to any
benefits.  In reversing the administrative law judge, the
Commission specifically found that appellant was not an employee
covered under Arkansas Workers' Compensation law of either company. 
The Commission concluded that appellant continued to be an
independent contractor from the time he originally contracted to
paint the interior of the pool house until the time he was injured. 
The Commission also pointed out that the medical report generated
by Dr. Robert Johnson immediately after the injury indicated that
Dr. Johnson was advised by appellant's wife that appellant was
working as an independent contractor.  Although appellant and Mr.
Garrett both testified that appellant was an employee of Arkansas
Crane & Crawler, the Commission found that the testimony was not
dispositive of the issue, but instead constituted evidence to be
considered in reaching its decision of whether appellant was an
employee.
     In reviewing cases on appeal from the Commission we affirm the
Commission's  decision if supported by substantial evidence. 
Substantial evidence is that which a reasonable person might accept
as adequate to support a conclusion.  Harper v. Hi-Way Express, 51
Ark. App. 183, 912 S.W.2d 21 (1995).  A decision of the Workers'
Compensation Commission should not be reversed unless it is clear
that fair-minded persons could not have reached the same
conclusions if presented with the same facts.  Id.  
     Pursuant to Ark. Code Ann.  11-9-102 (10)(A), "Employee means
any person, ... employed in the service of an employer under any
contract of hire or apprenticeship, written or oral, expressed or
implied; but excluding one whose employment is casual and not in
the course of the trade, business, profession or occupation of his
employer...."
     In the case at bar, the Commission had before it a statement
from the president of Arkansas Crane & Crawler that appellant was
considered an employee of that entity, even though he did not know
how long appellant would be employed.  Appellant received a W-2
form from Arkansas Crane & Crawler and was paid on an hourly basis. 
Also there is evidence that when appellant worked as an independent
contractor he received two checks as payment for his services,
rather than being paid $15 per hour as he was when he painted the
exterior of the pool house.   The evidence clearly indicates that
appellant was an employee of Arkansas Crane & Crawler and that the
work he performed was in the course of the business of his
employer.
     Pursuant to Ark. Code Ann.  11-9-102 (12)(A)(ii), employment 

means:

          (a) Every employment in the state in which
              three (3) or more employees are regularly
              employed by the same employer in the course
              of business except:
          
              (ii)  An employee employed to do gardening, 
                    maintenance, repair, remodeling, or
                    similar work in or about the private
                    home of the person employing the
                    employee.

The Commission found that even if it determined appellant to be an
employee of Arkansas Crane & Crawler he would not satisfy the
definition of "employment" because he was employed to work at
Garrett's residence.    
     The testimony of Mr. Garrett, appellant and appellant's
brother supported the contention that appellant was employed by
Arkansas Crane & Crawler.  Mr. Garrett testified that as an
employee of Arkansas Crane & Crawler appellant was employed to
perform work which included painting the building which housed
Arkansas Crane & Crawler and some of the machinery that was in need
of repainting.  When appellant reported to work at Arkansas Crane
& Crawler to paint the inside of the building he could not because
there were trucks inside of the building that were being repaired
and could not be moved.  Mr. Garrett testified that once appellant
reported to the job site, he did not want to send him home because
he had had a difficult time getting someone to work there.  Once
appellant was at the job site, according to Mr. Garrett, he was
sent to Garrett's personal residence to paint the exterior of his
pool house.  Mr. Garrett's personal residence is located only a few
hundred yards from Arkansas Crane & Crawler.  
     The Commission suggests that since appellant was injured while
painting at Garrett's personal residence his employment is not
covered under our workers' compensation law.  If, in fact,
appellant's primary purpose for being at the Arkansas Crane &
Crawler site was to paint the exterior of the pool house we would
be inclined to agree.  However, as in the instant case, where an
employee reports to his designated place of employment and is then
sent to his employer's personal residence to make repairs, we
cannot find that work done in such a manner is the worker's
employment. 
     We believe that the evidence supports a finding that appellant
was at all relevant times an employee of Arkansas Crane & Crawler. 
It would appear that the only reason that appellant was at Mr.
Garrett's residence was because he had been instructed to go there
because he could not work at his place of employment, Arkansas
Crane & Crawler.  We believe that based upon the evidence, it is
clear that fair-minded persons could not have reached the same
conclusion as the Commission.  We accordingly reverse and remand
for an award of benefits consistent with this opinion.
     Reversed and remanded.
     Stroud and Pittman, JJ., agree.