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...