JOSEPH MILTON, Employee/Appellant,
v.
HENRY COMBS d/b/a PROPERTY NANNY, INC., UNINSURED, Employer/Cross-Appellant,
and
MN DEP'T OF HUMAN SERVS., Intervenor, and SPECIAL COMPENSATION FUND.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
February 17, 1999
HEADNOTES
ARISING
OUT OF & IN THE COURSE OF; ARISING OUT OF & IN THE
COURSE OF - ASSAULT. Although the employee's injury,
sustained in an altercation with the employer about the
receipt of his pay check, arose out of the employment, it was
not sustained in the course of the employment where it
occured outside of work hours off the job site during a
chance encounter at a location which was neither the business
office of the employer nor a place where the employee had by
custom or request come to obtain his paycheck.
Affirmed
Determined by: Wheeler, C.J., Hefte, J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
OPINION
STEVEN
D. WHEELER, Judge
The
employee appeals from the compensation judge's
determination that the injury the employee sustained on July
1, 1996 did not arise out of and in the scope of his
employment for the employer, Property Nanny, Inc. The
employer cross-appeals from the compensation judge's
determination that an employment relationship rather than one
of independent contract existed between the employee and the
employer and from her finding that the employee's injury
was not the result of an assault directed against the
employee for personal reasons unrelated to the
employment. The employer also appeals from the
compensation judge's calculation of the employee's
weekly wage and from the determination that, had the injury
been compensable under the workers' compensation act, the
employee would have qualified for rehabilitation
services. We affirm the finding that the injury was not
work-related and decline to address the cross appeal.
BACKGROUND
Henry
Combs has been the sole owner of a business known as Property
Nanny, Inc., the employer, since some time in 1985. The
employer performs construction work in St. Paul specializing
in the repair and rehabilitation of single family homes and
duplexes. The employee, Mr. Combs' half-brother,
Joseph Milton, performed various work on a sporadic basis
during construction seasons each year for Property Nanny
since at least 1992 and perhaps as early as 1988. (T.
44, 46, 96-100, 103.)
Among
the job sites where Property Nanny performed work in 1996
were a duplex at 883-885 Selby Avenue ("the Selby
site") and a home at 963 Beech Street ("the Beech
site"). At some point after Property Nanny began
working at the Selby site, Mr. Milton went there and asked
Mr. Combs if he had any work for him. Mr. Combs told Mr.
Milton that there was demolition work he would like him to
do. According to Mr. Combs, they negotiated a price for the
work, arriving at a figure of $1,100.00, and Mr. Milton was
brought into the project as an independent
subcontractor. These arrangements were never put in
written form. Mr. Milton was not required to submit
written bids nor did he provide lien waivers, unlike other
subcontractors used by Property Nanny.1 Mr. Milton, on
the other hand, testified that he and his brother did not
reach any prior arrangement about payment for the work and
that when he worked for his brother he did not always know in
advance what he would be paid, sometimes being paid by the
hour and sometimes by the job. He also testified that
his brother had on several occasions warned him to be careful
since Property Nanny carried no workers' compensation
insurance. When he was paid by the hour he generally
received $7.00 per hour. He testified that he kept track
of his time on the Selby job and told his brother how many
hours he had worked on a daily basis. (T. 53-59, 70,
103-108, 198-199.)
Mr.
Milton began working at the Selby site in April 1996. He
had his own hammer, but no other tools. He
testified that he used some of Property Nanny's tools, as
well as other tools which were at the Selby site but which
might just as easily have belonged to one of
several subcontractors working there. Mr.
Combs acknowledged that Property Nanny had tools at the Selby
site, but did not know whether or not Mr. Milton used
them. He admitted that Mr. Milton used Property
Nanny's vehicle to take demolition debris for
dumping. (T. 55, 68-70, 111, 114-115.)
Mr.
Milton testified that he had no car and Mr. Combs usually
picked him up at his home to take him to the Selby
site. He also stated that sometimes when his brother did
not come by 7:15 or 7:20 in the morning he walked the eight
blocks to that location, as he tried to be there by 7:30 a.m.
on days he worked. Mr. Combs acknowledged that he had
sometimes transported his brother to the worksite, but
testified that he did this solely because Mr. Milton was his
brother. (T. 100, 109-110, 217.)
According
to Mr. Milton's testimony, in the afternoon on Thursday,
June 27, while he was performing demolition work at the Selby
site, Mr. Combs told him he needed him to do some...
