Capron v. McNelis, 092316 IDWC, IC 2015-010675

Case DateSeptember 23, 2016
CourtIdaho
RICHARD CAPRON, Claimant,
v.
WILLIAM MCNELIS AND EDWARD MCNELIS, dba RIVERBEND LAND & LIVESTOCK, Employer,
and
IDAHO STATE INSURANCE FUND, Surety, Defendants.
No. IC 2015-010675
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
September 23, 2016
          FINDINGS OF FACT, CONCLUSION OF LAW, AND RECOMMENDATION           R. D. Maynard, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Michael E. Powers, who conducted a hearing on April 7, 2006 in Boise. Claimant was present and represented by Clinton E. Miner of Middleton. David R. Skinner of Boise represented Employer and its surety. Oral and documentary evidence was presented. The parties submitted post-hearing briefs and this matter is now ready for decision.          ISSUE          The sole issue to be decided is whether Claimant was an employee of Edward and/or William McNelis, dba Riverbend Land and Livestock at the time of the subject accident.          EVIDENCE CONSIDERED          The record in this matter consists of the following:
1. The testimony of Claimant and Edward (Ed) and William (Bill) McNelis taken at the hearing.
2. Defendants' Exhibits 1 (pre-hearing deposition of Claimant) and 2 (pre-hearing deposition of Ed McNelis).
         FINDINGS OF FACT          Background:          1. Claimant was 70 years of age at the time of the hearing and resided with his ex-son-in-law between Weiser and Ontario. Claimant has mainly worked at "cowboying" although he has worked in a nursery, at a warehouse, and as a real estate agent. He attended a community college and was just a few hours short of obtaining his associate's degree in ornamental horticulture.          2. Claimant met Ed about 20 or so years ago when Ed bought a ranch through his (Claimant's) efforts; they became friends. In November 2011, Claimant was in Donnelly helping Ed build a fence[1] on property Ed was renting for a cattle operation. While in Donnelly, Claimant slept on a cot in a camp trailer belonging to Ed. Claimant had been in Donnelly building fences for Ed for about three months. Claimant would drive his own car as needed between Donnelly and the house that he was renting in Vale, Oregon.          3. On or about November 1, 2011, Claimant was riding a horse Ed had borrowed that Claimant described as a "little frisky." Claimant ended up being bucked off the horse and was injured.          Employer/Employee relationship:          Claimant's November 10, 2015 deposition testimony:          4. Claimant testified that he has known Ed since he first sold him some real estate: "It's almost like we're related. I don't know. It's a strange relationship." DE-1, p. 17. Claimant was unable to state the date upon which he was hired or who hired him, but it was either Ed or Bill. Claimant was originally hired to irrigate at first, but then spent about a month in Donnelly building fences and tending cattle.          5. Claimant testified that there was no written contract of employment and does not remember if there was an oral contract. For "wages," Claimant was to get a house to live in in Vale, as well as enough feed for his five horses year round. He never received an actual "paycheck," but did receive cash on occasion for gas, usually about once a month, and, occasionally, food.          6. Claimant does not remember the amount of time he spent in Donnelly each year. He recalled that he first went to Donnelly at the "direction" of Bill. Claimant does not know the business relationship between Bill and Ed, but believed them to be partners. Claimant thought he first went to Donnelly in 2014 and would come and go at the direction of Ed or Bill.          7. Claimant testified that he did not make enough money to file income tax returns. He never received (or requested) any W-2 or 1099 forms from Ed or Bill.          8. On the day of the subject accident, Claimant was riding a horse belonging to one of Ed's friends; but he was using his own saddle.          9. While Claimant was in Donnelly, he lived in a camper trailer provided by Ed and Bill. His meals were provided and, generally, Ed and Bill stayed there as well. Ed and/or Bill gave Claimant daily instructions regarding tasks to be performed like whether to cut fence posts or build fences. Claimant would generally work from dawn until dark. Claimant does not know if he received most of his instructions from Ed or Bill. While Claimant did not keep track of the hours he worked, he was not allowed to come and go as he pleased, as he needed to do what he was instructed to do for any given day.          10. Claimant did not consider himself to be a volunteer: "Because I was under constant instructions and told what to do and when to do it." DE-1, p. 28.          Claimant's hearing testimony:          11. Ed made arrangements with the owners of a house and acreage for Claimant to live in the house located in Vale; Claimant was also able to keep and feed his horses there. Claimant testified that he thought he was working "for the house and the horses." HT p. 24. Contrary to Claimant's deposition testimony that he was not sure who "hired" him, at hearing he testified that he was sure it was Ed but he still was not sure when this "hiring" took place. In response to the question, "Did he offer you a job?" Claimant testified: "Yeah. If I'm going to work I'm going to get some compensation." HT p. 31.          12. The "compensation" Claimant was to receive was the use of a house rented by Ed for Claimant's use in Vale (the Wilcox place) in exchange for irrigating the surrounding acreage. Claimant testified this "employment" began when he started irrigating and ended when he was injured. He was never interviewed for his "job." Claimant never filled out any time cards or kept track of his hours. He never received a paycheck, but received two gas cards and some cash on occasion. Claimant never asked to be paid for his alleged employment. As of the date of the hearing, Claimant had no documentary proof that he was an employee of Ed or Bill.          13. Claimant explained his understanding of his "employment contract" with Ed and Bill:
In my own words. Okay. They came over and asked me if I would irrigate I was about to lose the house I was in and on the advice of my lawyer
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