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Clayco Construction and State Insurance Fund v. Beserra6/11/1998
COURT OF APPEALS OF OKLAHOMA, DIVISION NO. 1
Opinion Services
CLAYCO v. BESERRA
___ P.2d ___
Decided: March 27, 1998
PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE JUDGES OF THE WORKER'S COMPENSATION COURT
SUSTAINED
MEMORANDUM
Claimant, Beserra, was injured in an automobile accident on the way to his job roofing houses. The trial court found him to be an employee of Clayco Construction (Employer) and that the injuries arose out of and in the course of his employment. Claimant was awarded temporary total disability. The three-Judge panel affirmed. In this review proceeding, Employer contends the lower courts erred in finding Claimant to be his employee and in finding that the injuries arose out of and in the course of any such employment.
Employee status is a jurisdictional necessity for coverage under the Workers' Compensation Act. Whether an employee/employer relationship existed at the time of Claimant's injury requires an independent de novo review on appeal. Duncan v. Powers Imports, 1994 OK 126, 884 P.2d 854, 855; Swafford v. Sherwin Williams, 1993 OK 141, 863 P.2d 1215, 1217; Coleman v. J.C. Penny, 1993 OK 21, 848 P.2d 1158, 1160.
Employer, Clayton Douglas, testified that his corporation, Clayco Construction, is a broker of roofing and concrete jobs. He finds the jobs, usually on new houses, then finds a subcontractor to do the actual work. Mr. Douglas is not a roofer and denies being knowledgeable about roofing. He pays his subcontractors by the number of "squares" of shingles used. The subcontractors then pay their own employees. He denied having any employees. When he hires a subcontractor he requires him to have workers' compensation insurance or a "certificate of non-coverage".
Employer testified that he had never met, much less hired, the Claimant. Claimant, he said, was working for Alejandro Torres, a subcontractor employer had hired for a roofing job. Alejandoro Torres also had a certificate of non-coverage. Employer further explained that his subcontractors and their employees provide their own transportation to the job sites and he did not pay mileage or otherwise provide transportation. They had been working at a particular location for three weeks when the accident happened which injured Claimant.
On the day of the accident, Claimant, Torres and two other men were riding to the job site with Alex McLean in McLean's truck. Employer explained that McLean was another subcontractor, but was not working for employer at that time. Torres vehicle had broken down and Torres had apparently gotten McLean to give them rides.
Torres testified that he and Claimant were employees of Clayco (Employer) and that he (Torres) had no employees. He admitted that McLean was giving them a ride because his vehicle had broken down, but said that Employer had told McLean to take them to work. Alex McLean did not testify. Torres admitted that Employer paid him and then he (Torres) would pay the other members of the roofing crew.
There was also conflicting testimony about the equipment in the back of McLean's truck including ladders, nail guns and an air compressor. Employer said that with the exception of one ladder, the equipment belonged to Torres. Torres said the equipment belonged to Employer. They all agree that Employer would deliver the shingles and other materials to the job site.
Claimant testified that he did not work for Torres, but that he worked for Employer. He also believed McLean worked for Employer and that Employer was providing the ride to work. Claimant had no tools of his own.
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