JAIRO ISCOA AGUILAR
v.
CORDOBA DRYWALL, LLC WESCO INSURANCE COMPANY (AMTRUST GROUP), Insurance Carrier AMTRUST NORTH AMERICA, Claim Administrator
Jurisdiction Claim No. VA00001646137
Virginia in the Workers' Compensation Commission
May 26, 2021
Date
of Injury: August 12, 2019
Claim
Administrator File No. 31477041
Matthew J. O'Herron, Esquire For the Claimant.
Andrew
H.D. Wilson, Esquire For Cordoba Drywall, LLC and Amtrust
North America.
Brian
J. McNamara, Esquire For Gonzalez Drywall, LLC/Mr. Jose
Gonzalez-Martinez, and Carolina Casualty Insurance Company.
Christopher M. Kite, Esquire For RGR Contracting, LLC and
American Interstate Insurance Company.
NEWMAN
Commissioner
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
Gonzalez
Drywall, LLC requested review of the Deputy
Commissioner's January 12, 2021 Opinion finding the
claimant sustained a compensable injury in the course of
employment while working as its employee. We AFFIRM.
I.
Material Proceedings
The
claimant sustained injuries on August 12, 2019 when he fell
from scaffolding onto a concrete floor. He sought temporary
total disability from August 13, 2019 through September 17,
2020 and an award of medical benefits for a left arm injury.
The claim identified Cordoba Drywall, LLC ("Cordoba
Drywall") as the claimant's employer. Cordoba
Drywall filed a Motion identifying Gonzalez Drywall, LLC
("Gonzalez Drywall") as the claimant's
employer. During the February 27, 2020 evidentiary hearing,
testimony was presented that the claimant was injured while
working on a job for RGR Contracting ("RGR"). On
the motion of Cordoba Drywall and Gonzalez Drywall, RGR was
joined as a defendant.
The
defendants contended that the claimant was an independent
contractor. They denied he sustained an injury by accident
arising out of his employment and disputed that he was
totally disabled for the period alleged. Gonzalez Drywall
further argued that Cordoba Drywall or RGR was the
responsible employer on the grounds they were either the
claimant's direct employer, statutory employer, or
special master when he suffered his injury.
Deputy
Commissioner Cording ruled that Gonzalez Drywall was the
claimant's employer. He found that the claimant was hired
by Jose Gonzalez to perform drywall and framing work at an
hourly rate of $17.00 and that Gonzalez Drywall remained
responsible for paying the claimant's wages on the day of
his accident. The Deputy Commissioner also found that the
claimant fell while standing on scaffolding that was six to
seven feet above the concrete floor and that the accident
arose out of the employment. The Deputy Commissioner
concluded that the claimant established he was totally
disabled due to his injury until his return to work on
September 18, 2020.
Gonzalez
Drywall requests review, arguing the claimant did not
establish he was an employee at the time of the accident, or
in the alternative, that Cordoba Drywall or RGR was the
responsible employer. It further argues the claimant did not
establish his injury arose out of the employment and that he
was not disabled as alleged. RGR also disputes an employment
relationship with the claimant and joins in the argument that
his injury did not arise out of the employment. Cordoba
Drywall likewise denies it had an employment relationship
with the claimant when he was injured.
II.
Findings of Fact and Rulings of Law
The
claimant testified that his usual employer was Gonzalez
Drywall. Four months prior to the accident, the claimant had
been hired by Jose Gonzalez ("Gonzalez"), the owner
of Gonzalez Drywall, to perform framing and sheet rock work.
He was paid for his work by company check. On the Sunday
before his accident, Gonzalez informed the claimant he would
be working for Juan Cordoba ("Cordoba") the
following day but would be paid by Gonzalez Drywall. On
August 12, 2019, the claimant and his helper arrived at a job
site and reported to the foreman. He did not know if the
foreman worked for Cordoba...
