Urrutia v. Cervantes Framing & Contractors LLC, 072921 VAWC, VA02000031672

• Case Date: July 29, 2021
• Court: Virginia

JORGE URRUTIA v. CERVANTES FRAMING & CONTRACTORS LLC, et al. ERIE INS EXCHANGE, Insurance Carrier ERIE INS EXCHANGE, Claim Administrator Jurisdiction Claim No. VA02000031672 Claim Administrator File No. A00001521309 Virginia Workers Compensation Virginia In The Workers’ Compensation Commission July 29, 2021           Date of Injury: November 1, 2018           Bradford M. Young, Esquire For the Claimant.           Jose Lemus No appearance by or on behalf of the Putative Direct Employer.           J. David Griffin, Esquire For the Putative Statutory Employer and its Insurer/Claim Administrator.          OPINION           RAPAPORT COMMISSIONER          REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.          The claimant requests review of the Deputy Commissioner’s April 21, 2021 Opinion denying his Claim for Benefits based upon the finding that he was an independent contractor and not an employee of the employer. We AFFIRM.          I. Material Proceedings          The claimant filed a claim on December 21, 2018 alleging that he sustained a compensable injury by accident on November 1, 2018 resulting in injuries to both of his legs and feet. He sought medical benefits and wage loss benefits. Cervantes Framing & Contractors, LLC (statutory employer) raised numerous defenses against the claim, including that the evidence failed to establish an employer-employee relationship between Jose Lemus (uninsured alleged employer) and the claimant.          Deputy Commissioner Himmel conducted an evidentiary hearing on March 3, 2021. The Deputy Commissioner found that the claimant failed to produce persuasive evidence that he was an employee. He explained that the claimant simply relied upon his assertion that Mr. Lemus told him “what to do on a day-to-day basis,” but this was insufficient:

But what was said? What were Mr. Lemus’s instructions? How did Mr. Lemus influence Mr. Urrutia’s activities? For example, could Mr. Lemus control when Mr. Urrutia worked? (Mr. Urrutia’s deposition testimony suggests otherwise). Did Mr. Lemus control how

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