"The factors for determining an employer-employee relationship are, (1) the right of selection, or to employ at will, (2) responsibility for the payment of wages by the employer, (3) the right to discharge or terminate the relationship, (4) the right to control the work, and (5) is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed." Prokop v. Frank's Plastering Company, 257 Iowa 766, 133 N.W.2d 878, 883. See also Schlotter v. Leudt, 255 Iowa 640, 123 N.W.2d 434.
Somewhat ambiguously, trial court concluded "that there was an employment contract between the plaintiff and the defendants, that the contract was with Iowa Industrial Hydraulics. . . ." There was substantial evidence to support trial court's conclusion there was an employment contract between Iowa Industrial and Janda. Assuming Indag was a viable corporation, we find no substantial evidence there was an employer-employee relationship between Indag and Janda. Most of the factors that might create such a relationship were absent. See Prokop v. Frank's Plastering Co., 257 Iowa 766, 775, 133 N.W.2d 878, 883 (1965). The evidence falls short of supporting a finding that the parties considered Janda's employment with Iowa Industrial terminated by a new contract with Indag.
Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 455, 127 N.W.2d 636, 637; Sister M. Benedict v. St. Mary's Corp., 255 Iowa 847, 850, 851, 124 N.W.2d 548, 550, and citations. The factors by which to determine whether an employer-employee relationship exists are (1) the right of selection, or to employ at will (2) responsibility for the payment of wages by the employer (3) the right to discharge or terminate the relationship (4) the right to control the work, and (5) is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed. Prokop v. Frank's Plastering Co., 257 Iowa 766, 775, 133 N.W.2d 878, 883, and citations. In Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1216, 146 N.W.2d 261, 265; and Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 456, 127 N.W.2d 636, 637, 638, in addition to the five above named elements we recognize the overriding element of the intention of the parties as to the relationship they are creating may also be considered.
There was obviously no dispute as to the facts; that is to say, the claimant had sustained injuries resulting in a 90% loss of his left arm and to injuries to his right hand, and that both injuries were related to his employment. The only issue before the trial court and now before us has to do with the determination of questions of law by the commissioner, and we have heretofore held the determination of questions of law by the industrial commissioner although entitled to careful consideration is not conclusive, being subject to review on appeal. Hoenig v. Mason and Hanger, Incorporated, Iowa, 162 N.W.2d 188, 190; Barton v. Nevada Poultry Co., 253 Iowa 285, 288, 289, 110 N.W.2d 660; Prokop v. Frank's Plastering Co., 257 Iowa 766, 769, 770, 133 N.W.2d 878. Our Workmen's Compensation law is for the benefit of the working man, and should be liberally construed to that end. Hoenig v. Mason and Hanger, Incorporated, supra, page 190; Price v. Fred Carlson Co., 254 Iowa 296, 299, 117 N.W.2d 439; Harrison v. Keller, 254 Iowa 267, 270, 117 N.W.2d 477.
" Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 1070, 146 N.W.2d 911, 914. See also Musselman v. Central Telephone Co., Iowa, 154 N.W.2d 128, 130; Poole v. Hallett Construction Co., Iowa, 154 N.W.2d 716, 718; and Prokop v. Frank's Plastering Co., 257 Iowa 766, 769, 133 N.W.2d 878, 880. In Prokop v. Frank's Plastering Co., supra, is this statement:
This is clearly a question of law. On that point we held in Barton v. Nevada Poultry Co., 253 Iowa 285, 288-289, 110 N.W.2d 660, the determination of questions of law by the commissioner, though entitled to careful consideration, is not conclusive, being subject to review on appeal. See Prokop v. Frank's Plastering Co., 257 Iowa 766, 769-770, 133 N.W.2d 878. II. It is, of course, understood our compensation law is for the workingman's benefit and should be liberally construed to that end.
onvincing Albers's and Pyle Truck's explanation of their respective intent in their relationship and with Gentry. He also disregarded the agreement between Albers and Pyle Truck because the evidence from the hearing showed the parties failed to follow material provisions of the purported contract without consequence where Gentry's term of employment was concerned, particularly the provisions about securing workers' compensation insurance for Albers's purported employees and presenting proof of such insurance to Pyle Truck. Cf. Finch, 700 N.W.2d at 330-31 (holding claimant was an independent contractor and applying section 85.61(13)(c) as all factors were substantially met under a substantial evidence review, where the claimant was himself the owner-operator and party to an independent contractor agreement adhered to by the parties, the control exerted by the carrier was entirely required by federal or state regulations, and there was no other purported employer). Pyle Truck also cites Prokop v. Frank's Plastering Co., 257 Iowa 766, 775, 133 N.W.2d 878, 883 (1965) and Eagen v. K. A. Truck Lines, Inc., 254 Iowa 914, 919, 119 N.W.2d 805, 808 (1963) as support for its position. We find these cases distinguishable, as neither case deals with application of section 85.61(13)(c), and both turn heavily on factual findings in a substantial evidence review, not on statutory construction as Pyle Truck argues is the issue in this case.