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Lindeman v. Sain6/17/2002
to prove the fact by a preponderance of the evidence.]
In this case there is no evidence to support the finding of the trial judge that Sain employed five or more people at the same time.
The plaintiff testified he was the only employee when he was hurt. Sain testified the people who worked for him would come and go. The reliance of the trial judge upon the plaintiff's testimony to establish that five people were employed is insufficient to show that over a period of time Sain had employed five different people. However, the plaintiff's testimony more readily suggests that Sain employed only one person at a time rather than five employees at any one time.
We reverse the judgment of the trial court and set aside the judgment in so far as it holds Sain liable. We remand the case to the trial court for entry of a judgment, in the amount of compensation for which the trial court found the plaintiff was entitled, against Summar Construction LLC.
The cost of this appeal is taxed to Summar Construction LLC.
JUDGMENT
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs will be paid by Summar Construction, LLC, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM
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