Loos v J.B. Installed Sales, Inc., 2006 ACO #309
In this case, James Loos needed to prove that he was an employee of Robinson Roofing, an uninsured subcontractor of J.B. Installed Sales, to reap the benefits of Sec. 171, the shoot-through provision of the act. Sec. 171 allows for an employee to impose liability on a principal if they are working for an uninsured subcontractor. For Sec. 171 to apply, an individual must be an employee.

The magistrate in this case found that the Plaintiff was not entitled to benefits from J.B. Installed Sales because he failed to prove that he was an employee of Robinson Roofing. In support of his conclusion, the magistrate noted that the Plaintiff’s earnings from Robinson Roofing were reported on 1099 forms and assumed that, had he been an employee, he would have been paid on a W-2 and his earnings would have been reported to the Social Security Department. Also, an emphasis was made that the Plaintiff stated to the hospital personnel after his injury that he was “self-employed.”

In reversing the magistrate and finding that the Plaintiff was an employee of Robinson Roofing, the WCAC stated that it is the statutory definition of an employee as noted in Sec. 161(1)(n) of the act that controls, not how the parties label each other. Sec. 161(1)(n) defines an employee as “every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury” as long as he did not do any of the following: 1) maintain a separate business; 2) hold himself out to and rendered services to the public; or 3)was an employer subject to the Act.

When reviewing the trial transcript, the only testimony on whether or not the Plaintiff maintained a separate roofing business, that he held himself out to the public to render roofing services, or that he had any employees was the Plaintiff’s testimony itself, answering all of the questions in the negative. Neither Robinson Roofing nor J.B. Installed Sales presented testimony contesting the Plaintiff’s testimony.

The Commission stated that the factors relied upon by the Magistrate in determining that the Plaintiff was not an employee are not irrelevant, the statutory language makes it clear that the proper focus is on the Plaintiff’s actions and not on the parties’ labels. Therefore, the evidence only supported the conclusion that the Plaintiff was an employee of Robinson Roofing.