McLaws v. Kazamini

McLaws v. Kazamini

IN THE UTAH COURT OF APPEALS
 

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W. Scott McLaws,

Petitioner and Appellee,

v.

Hedayat Kazamini dba Kazz's Kars (Uninsured) and/or Uninsured Employers Fund,

Respondents and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030607-CA
 

F I L E D
(July 22, 2004)
 

2004 UT App 250

 

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Original Proceeding in this Court

Attorneys: David J. Hodgson, Salt Lake City, for Petitioner

Alan Hennebold, Salt Lake City, for Respondents

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Before Judges Billings, Davis, and Jackson.

BILLINGS, Presiding Judge:

Hedayat Kazamini appeals a final order of the Utah Labor Commission Appeals Board (the Appeals Board) that (1) awarded workers' compensation benefits to Scott McLaws for an injury he suffered at work and (2) imposed a penalty on Kazamini for failure to maintain workers' compensation coverage. We affirm.

Kazamini argues that the Appeals Board erred by ratifying the Administrative Law Judge's (ALJ) determination that McLaws was an employee of Kazamini and thus eligible for workers' compensation benefits. Utah Code Annotated section 63-46b-16(4)(g) (2003) provides that we must grant relief to a person seeking judicial review of an agency action if the action "is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court." Utah Code Ann. § 63-46b-16(4)(g); see Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct. App. 1989). Because Kazamini challenges the factual findings of the ALJ, he "must marshall all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence." Grace Drilling, 776 P.2d at 68.

In challenging the ALJ's decision, Kazamini merely restates the ALJ's findings of fact, lists the evidence supporting his version of events, and ignores the evidence supporting the ALJ's findings. Thus, Kazamini has "failed to completely satisfy his obligation to marshal the evidence by persistently arguing [his] own position without regard for the evidence supporting the [ALJ's] findings." Heinecke v. Department of Commerce, 810 P.2d 459, 464 (Utah Ct. App. 1991) (first alteration in original) (quotations and citation omitted); see also Intermountain Health Care, Inc. v. Board of Review, 839 P.2d 841, 844 (Utah Ct. App. 1992). "We therefore decline to disturb the findings made by the ALJ and ratified by the [Appeals Board]." Intermountain Health Care, Inc., 839 P.2d at 844.

In determining whether the Appeals Board properly concluded that McLaws was an employee of Kazamini's, we apply an "intermediate standard of review" and "look for an abuse of discretion." Osman Home Improvement v. Industrial Comm'n, 958 P.2d 240, 243 (Utah Ct. App. 1998). More specifically, we must "determine whether the agency decision exceeded the bounds of reasonableness and rationality." Id. (quotations and citations omitted). We conclude that it does not.

"In workers' compensation cases, this court has consistently held that whether an employer-employee relationship exists depends upon the employer's right to control the employee." Averett v. Grange, 909 P.2d 246, 249 (Utah 1995). We examine the following factors in determining whether there exists the right to control: "the express or implied right to direct and control the employee; the right to hire and fire; responsibility for payment of wages; and providing job-related equipment." Johnson Bros. Constr. v. Labor Comm'n, 967 P.2d 1258, 1260 (Utah Ct. App. 1998). However, this list is not exhaustive, and no one factor is controlling. See Bennett v. Industrial Comm'n, 726 P.2d 427, 430 (Utah 1986); Osman Home Improvement, 958 P.2d at 244. Furthermore, "[i]t is not the actual exercise of control that determines whether an employer-employee relationship exists; it is the right to control that is determinative." Johnson Bros. Constr., 967 P.2d at 1260 (quotations and citations omitted).

The ALJ and the Appeals Board found that, on balance, the evidence demonstrated McLaws was an employee of Kazamini. We agree. The evidence supporting an employee-employer relationship found by the ALJ and Appeals Board is as follows: (1) Kazamini advertised a full- or part-time position of employment as an automotive painter and frame technician and that he would pay "top wages"; (2) McLaws worked full time for Kazamini beginning in September 2000; (3) all repairs were made in Kazamini's shop; (4) Kazamini provided tools, parts, and supplies used by McLaws to repair the vehicles for Kazamini; (5) Kazamini retained control of the manner and method of McLaws's work and monitored the quality and progress of that work; (6) McLaws was not established in business in his own right, nor did he hold himself out as available for work, except through Kazamini's business; and (7) McLaws had no risk of loss and was not required to repair any defects in his work on his own time or at his own expense. Thus, we conclude that the ALJ and the Appeals Board properly found that an employer-employee relationship existed between McLaws and Kazamini.

Kazamini further argues that even if McLaws was an employee, that relationship was terminated prior to McLaws's injury and thus McLaws was not entitled to workers' compensation benefits. We disagree. The ALJ found that the injury occurred on January 30, 2001, while McLaws was working on a 1992 Isuzu Trooper owned by Kazamini. Although McLaws purchased this vehicle from Kazamini in lieu of $3500 owed to him by Kazamini, this purchase did not occur until February 28, 2001. Therefore, Kazamini's assertion that McLaws was repairing his own vehicle at the time of the accident and, thus, not working for Kazamini, is untenable. Accordingly, we conclude the ALJ and Appeals Board properly held that McLaws was an employee of Kazamini's at the time of the accident.

Kazamini also contends that the Appeals Board erred in determining McLaws's average weekly wage was $752.25. We disagree. Under Utah Code Annotated section 34A-2-409(1) (2003), "the average weekly wage of the injured employee at the time of the injury is the basis upon which to compute the weekly compensation rate" and that subsection provides the method for determining that rate. Id. However, pursuant to section 34A-2-409(2), "[i]f none of the methods in Subsection (1) will fairly determine the average weekly wage in a particular case, [the ALJ or Appeals Board] shall use such other method as will, based on the facts presented, fairly determine the employee's average weekly wage." Id. Here, the Appeals Board determined that McLaws's total earnings, averaged over the period of his active employment with Kazamini, was the best and fairest indicator of McLaws's average weekly wage. We hold that the Appeals Board was "within the bounds of discretion in determining to apply subsection [(2)]." Hodges v. Western Piling & Sheeting Co., 717 P.2d 718, 721 (Utah 1986).

Finally, Kazamini argues that because he did not have any employees the ALJ and Appeals Board erred by imposing a penalty of $1000 against him pursuant to Utah Code Annotated section 34A-2-211(2) (2003). Because Kazamini did in fact have at least one employee (McLaws) during the period in question and the ALJ determined that Kazamini did not have workers' compensation insurance during that period, we hold that the penalty was proper. Accordingly, we affirm.

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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James Z. Davis, Judge

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Norman H. Jackson, Judge