Opinion
CLAIM NO. E218014
OPINION FILED NOVEMBER 28, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by DEAN GARRETT, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by ELDON F. COFFMAN, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent appeals an opinion of the Administrative Law Judge filed on September 3, 1993.
The pertinent issues on appeal are whether claimant sustained a compensable injury; whether claimant gave proper notice of his injury; and whether claimant can collect benefits under the workers' compensation law.
Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patal, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark. Code Ann. § 11-9-705(a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). After our de novo review of the entire record, we find that claimant has met his burden of proof. We specifically find that the greater weight of the evidence concerning all issues lies with claimant. Accordingly, we affirm the opinion of the Administrative Law Judge.
The employer, claimant and claimant's father are in the construction business. Claimant and his father are partners in their own business. As a result of an advertisement in the newspaper, claimant's father approached the employer about employment. Claimant and his father agreed to perform part of the contracts between the employer and third parties. Claimant's father testified that it was initially agreed that they would receive $10.00 per hour. The employer agreed to furnish workers' compensation insurance to cover any injury sustained. There were some jobs where claimant and his father worked on a piece basis and were apparently paid in cash. Claimant's father testified that there was no specific discussion concerning whether they would be covered through the employer's workers' compensation insurance while working on a piece basis. He assumed that all work performed for the employer would be covered.
Claimant and his father were to perform a roofing job on a piece basis for the employer. While removing bundles of shingles from the employer's vehicle, claimant sustained a back injury. After arriving at the job site, claimant again injured his back while handling the bundles of shingles. Claimant gave notice of his injury to his father, who informed the employer of the injury in a timely manner. Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he sustained a compensable injury and that proper notice of the injury was given to the employer.
The employer testified the agreement from the start was that whenever claimant and his father were paid by the hour, the employer would pay them through its company checkbook and furnish workers' compensation insurance for these particular jobs. The employer added that he informed claimant's father that he would not furnish workers' compensation insurance for any job where they were paid on a piece basis and the transaction was not entered on his business records. Since claimant was injured while working on a piece basis, the employer argues that it is not liable for claimant's injury. The employer also argues that claimant was an independent contractor and therefore, not entitled to compensation.
It really makes no difference whether claimant was an employee, an independent contractor, a subcontractor, or an employee of a subcontractor. We find claimant is entitled to benefits because the greater weight of the evidence indicates that the employer agreed to provide workers' compensation insurance for claimant and his father for any injuries sustained while working for the employer, and that there was no distinction made with reference to the method of payment. Since the employer contracted to furnish insurance coverage to claimant, the employer was bound by its contractual obligation. Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S.W.2d 270 (1963).
We find that the testimony of Ed Huffstetler, the employer, is not wholly credible. The employer actually does not have any full time employees. He testified that all people that work on projects do so by the job or on a contract basis. However, the employer carries workers' compensation insurance. Since premiums are calculated on the amount of payroll, the employer manipulates the amount of premiums by paying some workers in cash without an entry into his business records. He even admitted that he does not report all of his share of the profits from one of these jobs as income to him for income tax purposes, which certainly raises doubts as to his credibility.
It should be noted that we are not being critical of an employer's use of independent contractors to avoid liability for workers' compensation. We are concerned, however, about this particular employer's manipulation of its business records to accomplish the same thing.
For the foregoing reasons, we find that claimant has proven by a preponderance of the evidence that he sustained a compensable injury; that proper notice of the injury was given to employer; and that respondent is liable for compensation benefits. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
Commissioner Tatum dissents.