Schultz v. Andy & Steve’s Lawn & Landscap, 010521 MNWC, WC20-6361

Case DateJanuary 05, 2021
CourtMinnesota
WILLIAM A. SCHULTZ, Appellant,
v.
ANDY amp; STEVE’S LAWN amp; LANDSCAPE, Employer/ Respondent,
and
AUTO OWNERS INS. GRP., Insurer/Respondent,
And
REGIONS HOSP., Intervenor.
No. WC20-6361
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
January 5, 2021
         EMPLOYMENT RELATIONSHIP – INDEPENDENT CONTRACTOR; RULES CONSTRUED -MINN. R. 5224.0110, 5224.0330, and 5224.0340. The rule of law and substantial evidence support the compensation judge’s finding that the injured worker was an independent contractor where the worker did not meet the criteria under the safe harbor provisions of Minn. R. 5224.0110, subps. 2 or 3 and the judge properly applied the factors in Minn. R. 5224.0330 and 5224.0340.           Deborah K. Sundquist, Judge, Patricia J. Milun, Chief Judge, Sean M. Quinn, Judge.           Compensation Judge: Lisa B. Pearson.           Michael G. Schultz, Sommerer & Schultz, P.A, Minneapolis, Minnesota, for the Appellant.           Jason L. Schmickle, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Employer/ Respondent.           Joseph G. Twomey, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, Minnesota, for the Insurer/Respondent.          Affirmed.           OPINION           DEBORAH K. SUNDQUIST, Judge.          The injured worker appeals the compensation judge’s findings following a remand in which the compensation judge was asked to analyze the worker’s independent contractor status pursuant to Minn. R. 5224.0110. We affirm the compensation judge’s determination that the injured worker was an independent contractor.          BACKGROUND          This matter involves a worker who suffered a catastrophic spinal cord injury on November 1, 2017, while performing tree trimming services on the alleged employer’s premises.          Steven Dick owns and operates Andy & Steve’s Lawn & Landscaping (Andy & Steve’s) which provides mowing, fertilizing, shrub trimming, and spring and fall cleanups. At no point was tree trimming a significant component of the business. However, due to occasional requests by customers for tree trimming services, in 2013, Mr. Dick placed an advertisement on Craigslist for a tree trimmer.          William A. Schultz had been a tree trimmer for 40 years and at the age of 61 was looking for part-time work. He had been both an employee for a large landscape company and a subcontractor. He responded to the ad. Communicating through text messages, Mr. Dick and Mr. Schultz agreed that Mr. Schultz would work on an as-needed basis as a subcontractor at the rate of $25.00 per hour.1 There were no assigned hours of work, although tree trimming occurred during daylight hours. Mr. Dick did not have enough tree trimming prospects to employ a full-time tree trimmer and told Mr. Schultz that he would be unable to pay for insurance for Mr. Schultz.          On May 6, 2013, Mr. Schultz signed an Independent Contractor Release which stated in part that he would provide services as an independent contractor and also certified that he had adequate insurance coverage for any injuries he sustained while providing those services. Mr. Schultz testified that he did not obtain insurance. Thereafter, Mr. Dick sent text messages to Mr. Schultz when Andy & Steve’s customers asked for tree trimming services.          Mr. Dick gave Mr. Schultz an Andy & Steve’s shirt to wear when trimming trees for Andy & Steve’s customers because he wanted his customers to not be alarmed by a stranger in their yards. Between 2013 and 2016, Mr. Schultz performed tree trimming services by responding to emails or text messages from Mr. Dick indicating where a job was located. Mr. Schultz was free to refuse the work if he was unavailable. If he was unavailable, Mr. Dick would find another tree trimmer for the job. Upon finishing the job, Mr. Schultz texted Mr. Dick the number of hours he worked. Mr. Dick paid Mr. Schultz in cash without deducting payroll or other state or federal taxes. Mr. Schultz carried cards indicating his name, the fact that he was a tree trimmer, and contact information. He testified that he did not hand out his cards and did not advertise.          At one point, for a year’s time, Mr. Schultz took a break from tree trimming for Andy & Steve’s. He did not notify Mr. Dick of his choice to not work, he simply did not respond to Mr. Dick’s inquiries for work. During that season, Mr. Dick found another individual to trim trees. Later, Mr. Dick, in need of a tree trimmer, again placed an ad on Craigslist, and again Mr. Schultz responded. Mr. Schultz had worked other jobs during the time he trimmed trees for Andy & Steve’s. However, in 2017, he testified that he trimmed trees only for Andy & Steve’s.          Mr. Dick employed six to eight seasonal employees who were paid by check, with taxes deducted. They wore Andy & Steve’s Lawn & Landscaping shirts, used equipment provided by Andy & Steve’s, punched a clock,2 and reported to work at Andy & Steve’s shop around the same time every day. After the end of their shift, they returned to Andy & Steve’s shop to punch out. They also rode together in a company truck to various job sites for lawn and landscaping work. The truck carried lawn mowers and equipment which Andy & Steve’s employees needed to perform their jobs.          In contrast, Mr. Schultz drove his own truck directly to and from a job site, not going to Andy & Steve’s shop, and when finished with the job, he left. He did not punch a clock. Having been a tree trimmer for almost 40 years, Mr. Schultz provided his own tools and safety equipment. Andy & Steve’s employees cleaned the grounds and removed branches and debris after Mr. Schultz completed the job. Mr. Dick did no inspection of Mr. Schultz’s work because he relied on Mr. Schultz’s expertise. Although Mr. Schultz did not ask if he could bring his own assistants to the job, Mr. Dick testified that he would have had no objection to Mr. Schultz doing so.          In late spring 2017, Mr. Dick told Mr. Schultz that he had work available at property he owned and on which Andy & Steve’s kept its equipment. Because Mr. Dick planned to fence the perimeter of the property, a number of trees needed removal. Mr. Dick told Mr. Schultz in a text message dated October 4, 2017, that he could do that tree work on that property “whenever you want.” (Ex. B at 6.) In a text message exchange beginning on October 26, 2017, Mr. Dick asked Mr. Schultz when he could “take the big tree down.” (Id. at 7.) In October 2017, Mr. Schultz began removal of 40 trees. One of these trees was two to three feet in diameter and stood 30 feet tall. Mr. Schultz told Mr...

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