{"id":"alj-H302429-2024-02-13","awcc_number":"H302429","decision_date":"2024-02-13","opinion_type":"alj","claimant_name":"Torres Trinidad","employer_name":"A.G. Stone","title":"RIVERA VS. A.G. STONE AWCC# H302429 FEBRUARY 13, 2024","outcome":"denied","outcome_keywords":["affirmed:1","dismissed:1","granted:1","denied:2"],"injury_keywords":["back","lumbar","fracture","ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/TRINIDAD_TORRES_RIVERA_H302395_20240213.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TRINIDAD_TORRES_RIVERA_H302395_20240213.pdf","text_length":29955,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H302395 \n \nTRINIDAD TORRES RIVERA,  \nEMPLOYEE                                                                                                    CLAIMANT \n \nA.G. STONE,  \nEMPLOYER                                                                                                         RESPONDENT \n \nUNINSURED/ARKANSAS WORKERS’ \nCOMPENSATION COMMISSION, \nINSURANCE CARRIER/TPA                                                                      RESPONDENT     \n                           \n                                   \nOPINION FILED FEBRUARY 13, 2024 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, on November 14, 2023, in Little Rock, Pulaski \nCounty, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable  Mark  Alan  Peoples,  Peoples  Law  Firm,  Little \nRock, Pulaski County, Arkansas.  \n \nThe respondents were represented by the Honorable Terence C. Jensen, Jensen, Young & Butler, \nPLLC, Benton, Saline County, Arkansas. \n \nINTRODUCTION \n \nIn the prehearing order filed September 21, 2023, the parties agreed to the following \nstipulations, which they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  claimant  alleges  an  employment  relationship  existed  between  he  and  A.  G. \nStone  on  August  28,  2022;  and  that  he  allegedly  injured  his  lower  back/lumbar \nspine,  and  both  his  right  and  left  legs  within  the  course  and  scope  of  his  alleged \nemployment on that date. \n \n3. The respondents have controverted this claim in its entirety. \n  \n4. The parties specifically reserve any and all other issues for future litigation and/or \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n2 \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 6-8; 95-96). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were: \n1. Whether an employment relationship existed between the claimant and A. G. Stone \non August 28, 2022, the date of the claimant’s alleged injuries. \n \n2. If the claimant is deemed to have been an “employee” on August 28, 2022, whether \nhe sustained compensable injuries within the meaning of the Arkansas’ Workers’ \nCompensation Act (the Act) to his lower back/lumbar spine, and both his right and \nleft legs on August 28, 2022. \n \n3. If the claimant’s alleged injuries are deemed compensable, the extent to which he \nis entitled to medical and indemnity benefits. \n \n4. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. 7-8; 96).                              \n The  claimant  contends  he  was  an  employee  of  the  respondent-employer,  A.G.  Stone \n(Stone)  on  August  28,  2022.  He  contends  he  sustained  a  work  injury  to  his  lower  back/lumbar \nspine, and both his left and right legs on or about August 28, 2022, during the course and scope of \nhis employment with Stone. The claimant contends he is entitled to medical treatment related to \nhis work injury at Stone’s expense. The claimant further contends he is entitled to TTD benefits \nfrom August 28. 2022, the date of injury, through a date yet-to-be-determined. Finally, the claimant \ncontends the respondent has controverted this claim in its entirety and, therefore, his attorney is \nentitled  to  maximum  statutory  attorney’s  fees.  The  claimant  specifically  reserves  the  right  to \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n3 \namend his prehearing questionnaire response upon the completion of  appropriate and necessary \ninvestigation and discovery. In addition, he specifically reserves any and all other issues for future \ndetermination and/or litigation. (Comms’n Ex. 1 at 2; T. 96-97).  \nThe respondents contend the claimant was not Stone’s employee on or about August 28, \n2022, and that he cannot meet his required burden of proof pursuant to the Act. The respondents \nfurther contend the claimant cannot meet his burden of proof in demonstrating he sustained any \ncompensable injuries on August 28, 2022. The respondents reserve the right to file an amended \nresponse to the prehearing questionnaire and/or any and all other appropriate pleading(s), and to \nplead  any  further  affirmative  defense(s)  that  may  be  available  to  them  upon  the  completion  of \nnecessary  and  appropriate  discovery,  which  discovery  is  ongoing  at  this  time.  The  respondents \nspecifically reserve any and all other issues for future determination and/or litigation. (Comms’n \nEx. 1 at 3; T. 97). \nThe  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto. \nSTATEMENT OF THE CASE \nThe claimant, Mr. Trinidad Torres Rivera (the claimant), 58 years old. He testified that as \nof  the  date  of  his  alleged  work-related  injury,  August  220,  2022,  he  had  been  working  for  Mr. \nAdolfo Gomez “A.G.” (A.G.) (hereinafter, A.G. Stone, or Stone, will be deemed to apply to Mr. \nGomez as  an individual, and to the sole proprietorship, “A.G. Stone”),  which  is  owned  by  Mr. \nAdolfo Gomez (thus the name of the business, “A.G.” Stone), for, “more than two (2 ) years.” (T. \n25). Stone apparently acquires, cuts, polishes, and hauls marble, granite, and other similar products \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n4 \nto  both  build/finish-out  and  to  remodel  kitchens  and  bathrooms.  The  claimant  testified  he  had \nsimilar job duties at Stone. He further testified that on August 22, 2022, he was lifting a piece of \nmarble from a pallet over his head when two (2) pieces of the marble (he didn’t know how much \nthey weighed but described them as “heavy”) fell and struck both his right and left lower legs, and \nhe alleges the incident also caused him significant lower back/lumbar spine pain to the point he \nthought his back was, “broken.” (T. 25-28).  \nIn  August  2022,  Ms.  Michaela  Faith  was  working  on  a  part-time basis  as  Stone’s \nbookkeeper/administrator/secretary, and she was present at the time of the incident in question and \nsaw  it  happen.  She  worked  on  a  part-time  basis  at  that  time,  as  did  the  other  four  (4)  people, \nincluding Stone, she described as working with Stone, since there was not enough work to keep \nher, and them, busy 40 hours a week. She said even Stone had more than one (1) job, working as \na handyman for a couple of other companies so he could support his family. Ms. Faith adamantly \ntestified that while the claimant was present on the A.G. Stone work premises from time to time, \nhe was not there every day, and when he was present on the Stone premises he was not there to \nwork with Stone, but was there to work “on his vehicles,” which Stone allowed him to keep behind \nhis shop. Specifically, Ms. Faith testified: “I just saw him working on the cars, kinda just piddling \naround in the back.” She correctly surmised, as the claimant eventually testified under oath, that \nthe cars belong to him. (T. 50-54; T.37-37).  \nWhen asked the question on direct examination, whether the claimant was an employee of \nA.G. Stone, she flatly and succinctly replied, “He was not.” (T. 53).  Ms.  Faith  also  clearly  and \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n5 \nadamantly testified the claimant had absolutely no reason to be in the area doing what he was doing \nat the time the marble fell on him. (T. 64-67; 69-87; 50-63). \n Ms. Faith was only working two (2) days a week when she first started to work with Stone \nin 2022 May, and it was not until around January of 2023 when she started working four (4) days \na week, and then five (5) days a week in July of 2023. She was a part-time worker because she \nwas also working for another company since, again, Stone’s quantity of business was such that his \ncompany could not keep her or the other people with whom she worked busy. (T. 51-52). Ms. Faith \ntestified that as the bookkeeper she paid Stone, herself, and all the other people who worked with \nA.G. Stone as, “1099 employees”, or “1099 subcontractors.” (T. 56-63).    \nAt the time of the claimant’s August 20, 2022, incident, Ms. Faith was only working with \nStone on a part-time basis, as were the other people associated with him, including Stone himself. \nMs. Faith testified that she was the person whose job it was to make payroll, and that she paid the \nemployees by check; and contrary to the claimant’s sworn testimony that he was sometimes paid \nin cash and sometimes paid by cash he believed he had received, “Probably...more than 10...” \nand  “Maybe”  more  than  20  checks  from  Stone.  (T.44).  He  also  testified  under  oath  that  Stone \nalways  withheld  taxes  from  his  checks;  however,  the  claimant  later  admitted  under  cross-\nexamination that he did not file a tax return for either the 2021 or 2022 tax years, and that he was \nnot legally in the United States to work, and he admitted – as he apparently had in his deposition \n– that he had no “legal status” in the United States – which he also added was the same situation \nA.G. Stone was in. (T.45-48). [Concerning the claimant’s legal/ United States citizenship status, \nthe ALJ sustained the claimant’s attorney’s objection as to relevance/irrelevance concerning his \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n6 \nworkers’ compensation claim, but the ALJ did allow the respondents’ attorney’s request to proffer \nthis testimony, as the ALJ did not consider it with respect to any issue relating to compensability, \nbut believed it to be relevant – just as was the claimant’s admission he did not file a tax return for \neither the 2021 or 2022 tax years – to his respect for the law and, more significantly, his credibility \nor lack thereof. (T. 45-48)].  \nMoreover, while the claimant estimated Stone had paid him some 20 times with checks, he \ncould  not  and  did  not  produce  any  documentary  evidence –  such  as  a  cancelled  check,  bank \nrecords,  etc. –  proving  Stone  had  in  fact  paid  him  as  he  alleged.  (T.  45).  Indeed,  the  claimant \nadmitted he had no, “written proof of a single check that he received from A.G. Stone before [his] \naccident of August 28, 2022” when he responded he did not have any such proof, “at this moment \nin time.” (T. 45). This admission, even though he also admitted he knew he was coming to court \non the day of the hearing. The claimant said he had “photos of them [the checks] but I don’t have \nthem with me right now.” (T. 45) (Bracketed material added).  \nAfter  the  subject  August  20,  2022,  incident,  Ms.  Faith  called  an  ambulance  and  the \nclaimant  testified  he  was  taken  to  a  University  of  Arkansas  for  Medical  Sciences  (UAMS) \nfacilities, was in the hospital for a couple of days. When the claimant returned to the hospital for \nfollow up on 8/30/2022 – some eight (8) days after the incident at work, he underwent diagnostic \ntesting after which his physician determined he had broken (a closed fracture) his the distal tibia \nin his lower right leg, a closed fracture of his left lower leg, and a, “Compression fracture of L1 \nvertebra,” which the physician described as. “sequalae” of the subject incident of eight (8) days \nprior. Medical records admitted into evidence that on August 31, 2022, some nine (9) days after \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n7 \nthe  marble-lifting  and  falling  incident,  the  claimant  underwent  an  apparent  out-patient  surgical \nprocedure to repair these conditions, his right leg was splinted, his left leg was wrapped, his left \nankle was put in a boot., and was released from the hospital the same day and advised to come \nback in two (2) weeks for follow-up. (T. 24-24-50; Claimant’s Exhibit 1 at 1-24). \nThe  claimant’s  roommate,  Mr. Serapio  Guerrero,  had  known  and  been  friends  with  the \nclaimant for some 30 years, at which time they had known each other in Mexico. The two (2) had \nseen each other again in the United States some four (4) years after they had arrived here; and Mr. \nGuerrero had lived with the claimant approximately two (2) years before the subject August 20, \n2022,  incident,  and  continued  to  live  with  him  thereafter  until  approximately  May  5,  2023. \nAlthough he obviously had very little, if any significant, personal knowledge concerning whether \nand  if  so  to  what  extent  the  claimant  had  an  employment  relationship  with  H.G.  Stone,  he  had \nvisited  Stone’s  premises  approximately  three  (3)  times  where  he  saw  the  claimant  polishing \nkitchen floor marble. Mr. Guerrero testified he witnessed that after the August 20, 2022, injuries, \nhe observed the claimant using a wheelchair to ambulate for a period of time, and saw him in pain, \nand unable to do some things he had been able to do before the work incident. Mr. Guerrero moved \nout in early May 2023. He did the return to visit or see the claimant a few times thereafter, and \nsaid the claimant still appeared to be in some pain. In August 2023 the claimant went to work with \na friend as a transport/cross-country truck driver. (T. 13-24). \nThe  claimant  testified  he  worked  on  two  (2)  occasions  after  the  8/20/2022  incident, \nbetween  Thanksgiving  of  2022,  and  August  1,  of  2023,  he  helped  his  roommate,  who  is  a \ntransporter, do some work. He testified he helped his roommate drive a truck from Arkansas to \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n8 \nUtah,  and  then  from  Arkansas  to  Pennsylvania.  He  said  his  roommate  paid  him  for  these  jobs, \nwhich  meant  that  the  roommate’s  employer  trucking  company  did  not  pay  him  as  either  an \nindependent contractor or an employee. He further testified this work activity was difficult on him, \nand  caused  him  pain.  (T.  32-33).  The  claimant  authenticated  Claimant’s  Exhibit  2,  which  he \nidentified  as  medical  bills  related  to  the  August  22,  2022,  incident  wherein  he  injured  his  right \nlower extremity. (T. 34-35). \nIn August of 2023 the claimant returned to work driving a truck for Harper Construction, \nwhere  he  still  is  employed.  While  he  said  he  still  was  experiencing  pain  after  the  claimant  was \nreleased in mid-October 2022, according to witnesses – namely, Mr. Gomez, Ms. Faith, and Ms. \nMelissa Phelps – all testified they saw the claimant in October and November of 2022, and even \nthereafter between October 2022 and August 2023, and they witnessed no evidence the claimant \nwas disabled in any way, had trouble performing physical activity, nor did he appear to be in any \npain. Ms. Phelps testified she began working with A.G. Stone in mid-February of 2023, after the \nsubject incident, and after the claimant had been released from medical treatment and to return to \nwork. She said she saw the claimant come to the office some time in February 2023, about one (1) \nweek after she had started work with Stone. She testified under oath the claimant came down to \nthe warehouse and was walking around without a cast, walker, or a cane, and he was not limping \nand did not appear to be favoring either of his legs. In Ms. Phelps own words, he, the claimant, \nwas, “Walking just fine.” Ms. Phelps said he also did not complain of any pain or injuries. (T. 64-\n66).  On  cross-examination  when  she  observed  the  claimant  in  2023  February,  “He  seemed \nperfectly fine”, and capable of performing construction work, heavy work, based on her personal \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n9 \nobservations of him. (T. 66). It was also Ms. Phelps understanding the claimant came down to the \nwarehouse  to  work  on  the  vehicles  he  kept  there.  (T.  67).  In  his  testimony,  the  claimant  had \nadmitted he owned the four (4) cars that were on the Stone premises, and that he planned to repair \nthem  and  to  sell  them.  The  claimant  also  admitted  he  had  not  requested  any  medical  treatment \nsince he had been released in 2022 October, and he had not presented himself for treatment to a \ndoctor. (T. 35-48). \nThe claimant, who also happened to be Stone’s next-door neighbor, was a friend, and was \none (1) of the  few folks  who worked with Stone  who had keys to the A.G. Stone  premises and \ncould access the property whenever he wanted to work on his cars. Stone described the claimant \nas a “handyman” who helped around the premises from time to time (although the record is unclear \nas to what exactly his job duties were), but denied he was a A.G. Stone “employee” ( T. 73-74; 69).   \nFinally,  the  evidence  revealed,  as  the  claimant  admitted,  that after the claimant’s  injury \nStone gave the claimant an amount of money equal to one-half (1/2) the amount Stone paid the \nclaimant when he was performing work duties for A.G. Stone. Moreover, Stone gave the claimant \nat least $600 to help him with his medical bills. (T. 35-48; 75-92).      \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n10 \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act  in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). \nAll claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n11 \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nThe claimant has failed to meet his threshold burden of proof in demonstrating he was an \n“employee” as defined by the applicable law of A.G. Stone on the date of the subject \nincident, August 28, 2022. \n \nOf course, the primary, and indeed, the threshold issue to be decided in this claim before \nwe even reach the issue of whether the claimant has met his burden of proof in demonstrating he \nsustained a “compensable injury” within the Act’s meaning 0n 8/22/2022, is whether the claimant \nwas an “employee” – i.e., whether an employment relationship existed between the claimant and \nStone pursuant to the applicable law on the day of the work incident, 8/22/2022. A total of five (5) \nwitnesses  including  the  claimant  testified  at  the  subject  hearing.  To  say  the  least  the  various \nwitnesses’ testimony was somewhat conflicting on both the relevant issues litigated at the hearing; \nthat is whether an employment relationship existed between the claimant and Stone on 8/22/2022, \nand whether the claimant’s injury to his left lower leg – essentially, a closed fracture of his left \ntibia – constitutes a compensable injury within the Act’s meaning.  \nThe evidence was most contradictory and confusing concerning whether the claimant was \nan employee of Stone on the day of the incident, 8/22/2022. And while both attorneys are highly \nknowledgeable,  professional,  and  did  an  excellent  job  representing  their  client’s  respective \ninterests, since the  claimant has the burden of proof with respect to both  of the  aforementioned \nissues, in light of the contradictory and confusing nature of the relevant testimony, as well as the \ntotal lack of any documentary evidence demonstrating the claimant was Stone’s employee, I am \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n12 \ncompelled to find the claimant has failed to meet his burden of proof on this threshold employment \nrelationship issue.  \nIn affirming the Full Commission’s decision that the claimant was in fact an independent \ncontractor and not an employee, in Davis v. Ed Hickman, P.A., 2020 Ark. App. 188, 598 S.W.3d \n70  (Ark.  App.  2020),  our  court  of  appeals  referred  to  another  of  its  cases, Curry  v.  Franklin \nElectric, 32 Ark. App. 168, 172, 798 S.W.2d 130, 132 (Ark. App. 1990), for the proposition that, \n“[T]he Arkansas General Assembly and not the courts, declares the state’s public policy, and it \ndoes so through its statutes.” In so doing, the court of appeals cited an Arkansas Supreme Court \ncase, Medical Liability Mutual Ins. Co. v. Alan Curtis Enterprises, Inc., 373 Ark. 525, 529, 285 \nS.W.3d 233, 237 (2008), in support of this fundamental and long-standing tenet of the law.  \nWith respect to how Arkansas employers, our courts, and state agencies are to determine \nan individual’s employment status vis-à-vis an alleged employer, in 2019 the Arkansas General \nAssembly expressly declared the state’s public policy with respect to this issue when it passed Ark. \nCode  Ann.  Section  11-1-201, et  seq.  (LexisNexis  2020),  which  is  entitled  the, “Empower \nIndependent  Contractors  Act  of  2019.” Ark.  Code  Ann.  Section  11-1-203  defines  the  term, \n“employment  status”  as  meaning,  “the  status  of  an  individual  as  an  employee  or  independent \ncontractor for employment purposes, including without limitation wages, taxation, and workers’ \ncompensation issues.”  \nArk.  Code  Ann.  Section  11-1-204 states  that  a  person’s  “employment  status”  shall  be \ndetermined using the well-known “20-Factor Test” the Internal Revenue Service (IRS) set forth in \nI.R.S.  Revenue  Ruling  87-41,  1987-1  C.B.  296. Ark.  Code  Ann.  Section  11-1-204(1)-(20) \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n13 \nspecifically enumerates the 20 factors to be used in determining whether a person is an “employee” \nor an “independent contractor.” In addition, in following this statutory guidance as applied to the \nfacts  of  a  specific  case,  one  may  logically  come  to  the  common-sense  legal  conclusion  that \napplication  of  the  factors  to  an  individual  demonstrates  the  person  in  question  is  neither  an \n“employee”  or  an  “independent  contractor”  based  on  the  facts  of  the  situation.  Based  on  the \naforementioned applicable 20-Factor test, I am compelled to find the claimant has failed to meet \nhis threshold burden of proof in demonstrating he is or was an “employee” of A.G. Stone. \nFirst, I must note this is a rather unusual case. In reviewing the 20 factors set forth in the \n20-Factor Test (the Test) codified at Ark. Code Ann. Section 11-1-204(1) - (20), and much of the \nprecedent it has produced in light of Arkansas law, in general, and Act 796 and Arkansas workers’ \ncompensation law in particular, the Test is rather difficult to apply in a case such as this one where \nthe record is largely devoid of a number of the specific facts/factors that a fact-finder must directly \ncompare to the Test in order to render a decision. Second, much of the workers’ compensation law \nprecedent regarding this issue ultimately involves the Commission in effect deciding whether the \nAct’s exclusive remedy provision is invoked.  \n This case involves the owner of a start-up small business which, at the time of the subject \naccident – August 28, 2022 – was conducting so little business that it appears Stone had no full-\ntime  employees,  only  part-time  ones. According to Ms. Michaela Faith, A.G. Stone’s part-time \nbookkeeper at the time, the business treated everyone as an independent contractor, including the \nowner himself. [It should be noted at this time that while, at various pints in her testimony, Ms. \nFaith   used   the   terms   such   as,  “1099  employees”  (somewhat  of  an  oxymoron),  “1099 \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n14 \nsubcontractors”,  and  “subcontractor  employees”  [?],  the  fact  Ms.  Faith  may  have  been  using \nconfusing  and/or  inaccurate  legal  terms  does  not  make  the  claimant  an  employee  when  the \nremainder  of  the  record  is  otherwise  devoid  of  sufficient  evidence  the  claimant  met  the  Test’s \ndefinition of an employee.  \nIt is significant to note the record is in fact effectively devoid of any facts that would lead \none to a finding that he was an employee of A.G. Stone. In fact, the record contains insufficient \nevidence as to exactly what the claimant’s job duties were; from whom he took his direction; who \nsupplied his working orders, tools, or any of the  other facts that demonstrate the claimant more \nlikely than not was an employee. Indeed, the record leads a reasonable fact-finder to the contrary \nconclusion. \nThe claimant worked part-time. He was paid either by cash or check, he said, yet he could \nproduce no evidence to corroborate that A.G. Stone paid him by check. The claimant appears to \nhave operated his own business on the claimant’s premises, and did as he pleased most of the time. \nThe  A.G.  Stone  owner  referred  to  the  claimant  as  a  “handyman”,  which  does  not  connote  an \nemployee but rather a person the owner called to assist with certain jobs when he had them and \nneeded help. The record in fact connotes that the owner tried to help the claimant by allowing him \nto  operate  a  business  on  his  premises,  and  paid  him  money  from  time  to  time  as  opposed  to  a \nregular salary. The preponderance of the credible evidence of record reveals the claimant had not \nbeen instructed to help in any way – and did not even have any reason to be in the area where and \nwhen the subject incident happened. Even after the incident, the claimant asked Stone for money, \nand  Stone  paid  him  one-half  (1/2)  of  the  amount  he  usually  paid  him  when  he  was  performing \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n15 \nwhat appears to be intermittent work at best, and Stone even gave his “friend” and “neighbor” \nsome $600 to help pay his medical expenses.  \nOn these sparse facts it would constitute sheer speculation and conjecture for me to find \nthe claimant met the statutory 20-Factor Test in proving he was an employee of A.G. Stone and, \nof  course,  speculation  and  conjecture  will  not  and  cannot  support  a  claim  for  benefits. \nConsequently, if the claimant has a legal remedy against Stone, it does not exist pursuant to the \nAct and the Commission. \nTherefore, for the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed September 21, 2023, which \nthe parties affirmed on the record at the hearing, hereby are accepted as facts.  \n \n2. The  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  he  was  an \n“employee” of A.G. Stone – i.e., that an employment relationship existed between \nhim and A.G. Stone – on the day of the subject incident, August 28, 2022. Quite \nsimply,  the  record  is  devoid  of  sufficient  facts  to  determine  exactly  what  the \nclaimant’s actual job duties were, and who controlled his work, etc., much less other \nfacts that meet the applicable law’s 20-Factor test for determining who is and is not \nan employee. \n \n3. Since the claimant was not an “employee” of A.G. Stone on August 28, 2022, the \nday of the incident in question, the issue of compensability is rendered moot.  \n \n4. The claimant’s attorney is not entitled to a fee on these facts.  \n \nWHEREFORE, this claim is denied and dismissed subject to the parties’ statutory appeal \nrights. If they have not already done so, the respondents shall pay the court reporter’s invoice \nwithin ten (10) days of their receipt of this hearing and order.  \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n16 \n     IT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302395 TRINIDAD TORRES RIVERA, EMPLOYEE CLAIMANT A.G. STONE, EMPLOYER RESPONDENT UNINSURED/ARKANSAS WORKERS’ COMPENSATION COMMISSION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 13, 2024 Hearing conducted before the Arkansas Workers’ Compensati...","fetched_at":"2026-05-19T22:57:22.840Z","links":{"html":"/opinions/alj-H302429-2024-02-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/TRINIDAD_TORRES_RIVERA_H302395_20240213.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}