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Worker with own schedule, job method not entitled to comp


A construction worker who fell off a ladder on a work site was not an employer of a construction firm and is not eligible for workers compensation benefits because he set his own work hours and method of work, an Arizona appeals court ruled on Tuesday.

Miguel Espitia filed a claim for workers comp benefits following his July 2016 fall that resulted in a knee injury, listing USW/CAT Construction and Restoration Experts Catastrophe Team Inc. as his employer. The state’s Special Fund Division, No Insurance Section originally denied Mr. Espitia's claim but later rescinded its denial, accepted the claim. USW then filed a Request for Hearing, asserting it was not Mr. Espitia's employer at the time of the accident, according to documents in Miguel Espitia v. The Industrial Commission of Arizona, et al.

The Industrial Commission of Arizona heard testimony from Mr. Espitia, who had worked for USW since 2015, and the person who had given him work, a man who described himself as a “self-employed contractor.” It was discovered that USW originally paid Mr. Espitia in cash but in 2017 began paying him by check. USW did not deduct taxes from his pay, and Mr. Espitia admitted that he knew he would have to pay taxes on his wages. When Mr. Espitia filled out a W-9 form in May 2017, he checked the box indicating “he was an individual/sole proprietor” but testified at the hearing he did not remember doing so, according to court documents.

Mr. Espitia also testified he would let the self-employed contractor who hired him know when he was going to take vacation days. He received no vacation pay, although he testified USW gave him $50 on his last vacation day, nor did he receive sick pay, health insurance or other benefits, according to documents.

The commission ruled he was not an employee. An administrative law judge later “concluded as a matter of law that USW was neither Espitia's direct nor statutory employer at the time of the accident” and affirmed that decision.

The appeals court affirmed, writing that “the evidence failed to show (the self-employed contractor) or USW controlled Espitia's schedule or method of work. Viewed in the light most favorable to upholding the ALJ's award, the texts and the testimony support the finding that (the self-employed contractor) and USW did not have the right to control Espitia's work pursuant to (state law)Accordingly, the ALJ properly concluded Espitia was not a direct employee… and therefore was not entitled to compensation for his injury.”






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