Dixon v. Priddy, 051220 IDWC, IC 2017-053323

• Case Date: May 12, 2020
• Court: Idaho

JOSEPH DIXON, IN HIS CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF IVAN DIXON, Claimant, v. DEOLE PRIDDY, d/b/a DE’S TREE & STUMP SERVICE, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2017-053323 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho May 12, 2020          FINDINGS OF FACT, CONCLUSION OF LAW, AND ORDER, AND CONCURRENCE IN PART, DISSENT IN PART           Thomas P. Baskin, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted a hearing in Boise, Idaho, on December 5, 2019. Jason Thompson represented Claimant. Paul Augustine represented Defendants Employer and Surety (hereafter “Defendants,” or when discussed individually Employer will be designated as “Defendant” and Surety as “Surety”). The parties produced oral and documentary evidence at the hearing.^[1] No post-hearing depositions were taken. The parties submitted briefs. The case came under advisement on February 11, 2020. The undersigned Commissioners agree with the Referee’s analysis and conclusion. The Commission issues this decision to explain how the narrow issue considered came before it.          ISSUE          The narrow issue for resolution, as defined by the parties in their briefing, is whether Ivan Dixon (deceased) was an employee of Defendant Employer pursuant to the provisions of Idaho Code § 72-204(2) at the time of his injury on October 26, 2017.2          CONTENTIONS OF THE PARTIES          Claimant contends Ivan Dixon (hereafter “Dixon”) was an employee of Defendant on October 26, 2017 and was injured while in the course and scope of such employment. Specifically, Claimant argues Dixon was employed in the service of Defendant as a paid helper or assistant to an employee of Defendant and Defendant knew of such arrangement. As such, Dixon fit within the definition of an employee under Idaho Code § 72-204(2), which provides that helpers and assistants of employees, even those paid by such employee (and not directly by the employer) are employees of the employer if the employer had actual or constructive knowledge of the arrangement. Claimant asserts Defendant had at least constructive if not actual knowledge that Dixon was working for, and paid by, Defendant’s employee at the time Dixon was gravely injured while “on the job” for Defendant.          Defendants argue Claimant was not an employee. Defendant did not have actual or constructive notice that Dixon was again working at the job site even after Defendant specifically and directly told his employee not to use Dixon on the job and further threatened the employee with termination if he again permitted Dixon back on site. Defendant was not at the site when the accident occurred and had no knowledge his employee defied Defendant’s direct order and again allowed Dixon to assist the employee. Since Defendant lacked the knowledge required under Idaho Code § 72-204, Dixon was not an employee of Defendant when injured, and Claimant has no worker’s compensation claim against Defendants as the result of the accident in question.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Defendant Deole Priddy taken at hearing;

2. Joint Exhibits 1 through 24, admitted at hearing;

         All objections preserved through the depositions (Exhibits 19, 20, and 24) are overruled.          FINDINGS OF FACT          The following finding of facts are supported by the weight of the evidence. Details not material to the issue at bar are not included herein. Contrary assertions were considered and rejected as being inconsistent with the weight of the evidence. To the extent such assertions are relevant to the issue to be decided they will be discussed hereinafter under the heading “Discussion and Further Findings.” The Commission finds no reason to disturb the Referee’s findings and observations of the presentation and credibility of the witnesses.          1. Defendant Deole Priddy operated a seasonal (spring, summer, and fall) tree removal business out of New Meadows, Idaho as a sole proprietor under the assumed name De’s Tree and Stump Service. Equipment periodically used in his operation included, among other things, a bucket truck for overhead work, and a chipper for limb clean up.          2. Defendant hired part-time workers as needed. When hired, the employees signed a W-4 and were placed on the payroll. Work was sporadic and dependent upon the tree removal jobs Defendant lined up. Employees were paid by check for the jobs they worked.          3. Ivan Dixon worked as an employee for Defendant from May 1 through July 15, 2016. The work included climbing trees to cut limbs which Defendant could not reach with the bucket truck. Defendant had concerns over Dixon’s unsafe practices while doing aerial work. Dixon’s continued unsafe climbing practices led Defendant to fire Dixon in mid-July 2016. Thereafter Dixon left the area for a time.          4. In or around August 2017, an individual by the name of Brandon Windmiller introduced himself to Defendant. Windmiller claimed he was experienced in tree removal, including tree climbing, had a business license and insurance, and would like to work for Defendant as an independent contractor. Defendant hired Windmiller on a piece-meal basis as an independent contractor. Windmiller’s first job entailed repairing a pony motor on the bucket truck. He was paid by check on August 28, 2017 for that work.          5. Windmiller and Dixon were good friends. During the summer of 2017, Dixon returned to the New Meadows area and periodically stayed with Windmiller at Windmiller's residence.          6. In September 2017, Windmiller began doing tree removal work for Defendant. Windmiller took Dixon on tree removal jobs while Windmiller was working as an independent contractor for Defendant. Defendant saw Dixon working with Windmiller but said nothing because Windmiller was free to hire whomever he wanted while working as an independent contractor.          7. Eventually, Defendant learned that Windmiller did not have a business license or insurance. As a result, Defendant required Windmiller to sign a W-4 and become an employee, which he did on or about October 2, 2017.          8. In late September Defendant injured his low back and had difficulty working. After Windmiller became an employee, Defendant instructed Windmiller on the safe use of the bucket truck and thereafter allowed Windmiller to begin operating it.          9. Defendant had hired a part time employee by the name of Derrick Doty in mid-September 2017 as a “ground man” whose job it was to clean up the limbs, brush, and debris after a tree was brought down. Doty worked with Defendant in September before Defendant hurt his back.          10. In October, Defendant instructed Windmiller to use Doty as his ground man. It appears from the payment records that at least on some occasions during October Windmiller did use Doty as his ground man; however, twice in October Defendant arrived at a job site where Windmiller was working and saw Dixon, not Doty, working with Windmiller.          11. The first occasion was on a job in McCall. Defendant had been at an appointment out of the area and upon his return went to the job site to check on Windmiller. Dixon was there picking up limbs. Upon seeing Dixon, Defendant told Windmiller that he was not allowed to use Dixon on any job. He stressed that Dixon was not an employee and Defendant would not rehire him, and Windmiller was not to allow him on the job site. Windmiller acknowledged Defendant’s admonition.          12. On October 24, 2017, Defendant was scheduled go elk hunting but instead went to the job site near Cambridge where three tree removal jobs were ongoing or scheduled. Defendant again observed Dixon working with Windmiller. Defendant had expected to see Doty there with Windmiller. Defendant asked Dixon what he was doing, and Dixon said he was helping Windmiller. Defendant then confronted Windmiller “emphatically this time.” Hr’g Tr. at 59:23-24. Defendant reiterated that Dixon was not an employee, was not supposed to be on the job site Doty was the employee Windmiller should be using. Defendant told Windmiller that if he used Dixon again, he would be fired.          13. Defendant was admittedly upset with Windmiller on this occasion. Defendant felt he had adequately addressed the seriousness of the issue by threatening to fire Windmiller if he ever again took Dixon to a job. He...