The commission found claimant established a contact of hire at the time of the accident although he was still negotiating terms of his prospective full-time work for the employer. The parties had agreed that claimant would perform work at $50 for an installation job. The parties had not worked out other details such as paid vacation or supplying a cell phone.
The commission found claimant failed to establish all elements of a "right to control" test. Claimant had the burden to show a right to control through (1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right of discharge, (5) the method of payment (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the alleged employer, and (8) the employment contract. The commission noted insufficient factual findings on facts 1, 2, 4, and 6 to carry claimant's burden of proof.
A dissent argued that the employee established he was a person in the service of the employer and the employer had the evidentiary burden to show a lack of controllable service. The dissent asserts strict construction requires the employee's proof of "service" in 287.020.1 but did not require further require proof of "controllable" service under the right to control multi-part test relied upon by the majority.
Claimant was paid a $20 higher hourly rate for bringing his own tools. He did not complete any IRS paperwork for his employment. He never signed a document about his job description. The job was scheduled around his regular employment. The ALJ noted the employer had no right to control the terms of claimant's job performance as his employer relied entirely upon claimant's expertise to perform the job.
ALJ Baker
Atty Trefts, Banton
Treater: Polenini
Atty Trefts, Banton
Treater: Polenini
