{"id":"alj-H303124-2024-11-01","awcc_number":"H303124","decision_date":"2024-11-01","opinion_type":"alj","claimant_name":"David Otwell","employer_name":"Jerry Lynn Roberson","title":"OTWELL VS. JERRY LYNN ROBERSON AWCC# H303124 November 01, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["back","fracture","lumbar","thoracic","ankle","wrist"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/OTWELL_DAVID_H303124_20241101.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OTWELL_DAVID_H303124_20241101.pdf","text_length":34172,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303124 \n \nDAVID OTWELL, EMPLOYEE      CLAIMANT \n \nJERRY LYNN ROBERSON      RESPONDENT  \n \nEMPLOYERS REFERRED INSURANCE CO.,    RESPONDENT  \nCARRIER/TPA \n \nOPINION FILED NOVEMBER 1, 2024 \nHearing before  Administrative  Law  Judge,  James  D.  Kennedy, on  the 18\nTH\n day  of \nSeptember 2024, in Mountain Home, Arkansas. \nClaimant is represented by Rick Spencer, Attorney at Law, Mountain Home, Arkansas. \nRespondents are represented  by James  A.  Arnold,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 18\nth\n day of September 2024, in Mountain Home, \nArkansas, to  determine  the issue of the  existence  of  an  employee/employer  carrier \nrelation and if the relationship existed,  the compensability  for injuries to the claimant’s \nback,  both  hands  and  wrists,  along  with reasonable  and  necessary  medical  care.  The \nissues of TTD, an impairment rating, and attorney fees were reserved. A copy of the Pre-\nhearing Order dated June  4,  2024, as  well  as  the response  to  the  Prehearing \nQuestionnaire by both the Claimant and the Respondent were made part of the record \nwithout objection. \n From  a  review  of  the  record  as  a  whole, to include  medical  reports  and  other \nmatters properly before the Commission and having had an opportunity to observe the \n\nDavid Otwell – H303124 \ntestimony and demeanor of the witnesses, the following findings of fact and conclusions \nof law are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That the claimant has failed to satisfy the required burden of proof to show that \nan employer/employee carrier relationship existed on June 25, 2025, the date \nof the injury.  \n3. That all other issues are moot. \n4. If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The claimant, David Lawrence, was the initial witness to testify. He worked almost \n30  years  in  construction  as  a  journeyman  and testified  that  he was  working  for  Jerry \nRoberson, the respondent, on June 25, 2022, on a house the claimant stated he had been \ntold was going to be used as rental property. This was the property where he was working \nwhen the  injury  occurred. This  property  was  going  to be the respondent’s first  rental \nproperty per the testimony of the claimant. The respondent also had a cell phone repair \nfacility. The  claimant also worked for CNS Contracting, Monday  through  Thursday. On \nFridays,  Saturdays,  and  some  Sundays,  he  worked  on  the  house owned  by  the \nrespondent.  (Tr.  8,  9) The  claimant  stated that  he  had  previously  worked  on  a  house \nowned by the respondent which he resided back in 2021 and 2022, while working for M \n\nDavid Otwell – H303124 \n& A Jones/CNS Contracting, and that they did some odds and ends on the house and \nredid a bathroom.  “After he saw what me and Tom could do, he approached us both and \nasked us if we could build a house for him was - - or build a rental property for him.” He \nhad the property and plans picked out. The respondent bought all of the materials, unless \nthere was something that we might have forgotten, and he then reimbursed us for it. In \nregard to the tools, the respondent furnished generators, air compressors, miscellaneous \nhand and power tools, and some scaffolding with the scaffold boards. (Tr. 10, 11) The \nrespondent had the right to hire and fire, and he paid us in cash, paying around $30.00 \nan hour and we only worked on the rental property. “If there was something that we \nneeded, he would get it for us.” He went on to state that he had worked on the rental \nproperty from roughly January through his fall which occurred in June. (Tr. 12, 13) \n In regard to the fall, he testified that he was painting the two-story house down by \nthe river. While on a ladder painting the second story, the ladder somehow slipped and \nthe claimant fell 25 feet, landing on his chest. He knew something was really - wrong and \nstated  he  had  broken his  L1  and  shattered  his  L2.  They eventually  loaded  him in an \nambulance and took him to a med flight. In regard to workers’ compensation insurance, \nthe claimant stated that the second week out there, the respondent told him and the other \nworkers that he had coverage. (Tr. 14, 15) \n The claimant was then questioned about a series of text messages between the \nclaimant and the respondent. The claimant went on to state that he could no longer work \nlike he was doing and at the time of the hearing he pointed out he was in a wheelchair \nand that he had been in it since his fall. He admitted that he could walk some with crutches \nand that he could move both legs, but he had control of one leg more than the other.  He \n\nDavid Otwell – H303124 \nwent on to state that he really did not have any real control of one leg. He also testified \nthat he had no bladder sensation, so he was required to cath and had issues with bowel \nmovements. He also stated he had worked for M & A Jones for over 20 years. (Tr. 16 – \n18) He didn’t know if the respondent ever used the term employee with him, but he was \nsure that he had asked him to quit M & A Jones to take on a full-time responsibility for the \nconstruction he wanted.   \n Under cross examination, the following questioning then occurred: \nQ: Okay. And on page 45 of the deposition, we talked about the insurance and your \n - - it says my question. “Did Jerry have a conversation with all three of you about \n getting insurance?”  And you said, “The first week we were out there, there was \n no  talk.  The  second  week we were there, Jerry came back and said I’ve got \n Insurance on you guys, but did not specify the kind of insurance.” You just said \n that  he  told  you  that  he  had  workers’  comp.  He  didn’t  tell  you  that  he  had \n workers’ comp, did he? \nA: I didn’t say that. I didn’t say it was workers’ comp. I said he had insurance on us. \nQ:   Do you know what builder’s risk is? \nA:   Kind of. Sort of. \nQ:   Okay.  Do you know that Tom Moore asked him to get builder’s risk so you could \n lock the M & A tools up inside the cabin? \nA:   We didn’t leave M & A tools on the job site. \nQ:   Because you never got the locks installed, correct? \nA:   No, we had locks on the doors. \nQ:   Okay.  You’ve been in construction all your life? \nA:   Yes, sir. \nQ:   You have a full-time 40-hour week job with M & A construction, now CNS, but the \n same bunch, they just changed on them. \nA:   Yes. \nQ:   And you have been doing that for 22 or 24 years? \nA:   Yes, sir. \nQ:   Your entire life has been in the construction carpentry business, correct? \n\nDavid Otwell – H303124 \nA:   Yes, sir. \nQ.   Okay. And that’s what you were doing on this property that Jerry Roberson had? \nA:   Yes, sir. \nQ:   The same thing you’ve done all your life? \nA:   Yes, sir. \nQ:   Okay. Now, the first time you ever worked for Jerry was on the house that he and \n Sandy were living in, correct? \nA:  Correct. \nQ:  And your testimony here today and in your deposition was that Jerry asked Tom \n to come do some work on his house and Tom asked Jerry, I need some help. I \n know a guy at work. Is it okay if we bring him? Is that how that happened, right? \nA:  That’s how that happened on his house, yes.  \n(Tr. 22, 23) \nThe claimant went on to state he had worked probably eight or ten days maybe, \non Jerry and Sandy’s home. He also stated that he was aware that the respondent had a \ncell phone business, knew he did not have a construction company, and knew he didn’t \nhold himself out as a construction company. He also agreed he was never paid a dime \nby  the  cell  phone  company.  (Tr.  24,  25) After  the  eight  or  ten  days where he  helped \nremodel Jerry and Sandy’s house, he didn’t do anything for the respondent for four \nmonths or  so and during  that period of  time,  he continued working  for  M  &  A. He  also \nthought he had other side jobs during that period of time, where he would be paid cash \njust  like the  respondent did, and he was not aware of any of them having workers’ \ncompensation that covered him. Tom and he continued to be crew leaders with M & A \nduring  that time-period while  performing  the side  job for  the  respondent on  Friday  and \nSaturdays. He also admitted to having one other side job during that time period where \nhe  worked for  someone else  doing  carpentry. He admitted he didn’t write any of the \ninvoices, but that Tom Moore was the one who filled them out. (Tr. 27 – 29) The claimant \n\nDavid Otwell – H303124 \nalso admitted that the invoices that Tom filled out and gave to the respondent and which \nare before the Commission, had labor for three men, for two days, and that was how the \nrespondent paid him. (Tr. 31) The claimant also agreed that they supplied some of the \nladders and the respondent supplied some of them and they also used a ladder off the M \n&  A  truck. Some  of  the  tools  came off  the M  &  A  truck,  including  a  laser.  (Tr.  32)  The \nrespondent was  paying  for  two  M  &  A  Jones  trucks  to  be  on  site,  in  case  somebody \nneeded to go into town to get something. The claimant admitted that on occasion, they \nwould use some of the M & A Construction tools, but stated they tended to use their own \npersonal tools stored in the trucks. (Tr. 33) \nIn regard to the directions given by the respondent, the claimant admitted that the \nrespondent ran a full-time cell company in Batesville, and he was not on site ten hours a \nday like they were. He also admitted that in regard to the texts, some consisted of asking \nif the claimant or his partner needed the respondent to pick up something in town. The \nitems that the respondent picked up were to assist the claimant and his partners and keep \nthem on the job site. The respondent would sometimes ask if they could do this or that \nand sometimes, they would do it and sometimes they would tell him that it did not make \nany  sense.  The  claimant admitted  that the  respondent  did  not  instruct  them on how  to \npaint, how to hang trusses, or how to roof, due to the fact they were in the construction \nbusiness. The claimant also admitted that Tom, Jim, and he were all hired because they \nwere carpenters and the respondent wasn’t. (Tr. 34 – 37) The claimant was allowed to go \nwork for someone else if he was not working for the claimant on those days. (Tr. 38) He \nalso  admitted  that  he  was  able  to  walk  about  200  feet  with  forearm  crutches  and  was \nworking as a superintendent for M & A Construction. \n\nDavid Otwell – H303124 \nOn redirect, the claimant stated that the respondent told them where to work and \npaid them. (Tr. 39) \nAt this point, the claimant rested, and the respondents called the respondent, Jerry \nRoberson, who stated that he used to own Cell Phone Central back in 2021 and 2022, \nand that he had owned the business since 2010, before he sold it. The business fixed \n“cell  phones,  I-Pads,  computers,  anything  electronic.”  He  sold  the  business  to  his \nmanager sometime around January of 2023. The business did not do anything that wasn’t \nrelated to technological devices. The business did not own any real estate, nor did it have \nanything to do with construction. Prior to the cell phone business, the respondent stated \nthat he was a landscaper. He was at one time an electrician’s helper and worked as an \nequipment  operator  in  the  past.  He  had  no  carpentry  skills  or  skills  of  any  kind  that \ntranslated into the construction of a home or residence. He owned no rental property in \n2022.  \nThe respondent admitted meeting Thomas Moore when he was getting his hair cut \nby Thomas Moore’s wife and he mentioned a project where they were attempting to fix a \nfloor in the home he lived in with his wife. Thomas Moore’s wife pointed to a picture of her \nhusband  and  stated  that  he  did  work  like  that. (Tr.  42 - 44) Thomas  Moore  ultimately \nperformed the work on the house where they were living, which they sold at the end of \n2022. The respondent went on to state that Tom and the claimant performed renovations \nto the house which included filling gaps in the sheet rock, working in the bathroom, and \njust general stuff around the house so they could sell it. The respondent stated that he \nassumed Tom brought the claimant along to have extra help. (Tr. 45, 46) \n\nDavid Otwell – H303124 \nIn regard to the property by the river where the accident occurred, the respondent \nstated he had owned the property since 2009, and after they sold their other remaining \nproperty, the only property left was the river property where the accident occurred and \nwhich they were going to live in. The respondent testified that he had contacted Thomas \nabout building on the property and was told to bring the plans over, which he did. (Tr. 47, \n48) The respondent was questioned about the invoices in regard to the project and stated \nthat Thomas would provide the invoices on Saturday, and he would then pay them. He \nwould give Tom the money and he had no idea how much the others were paid or how \nmuch he kept for himself. He went on to state that the M & A Construction trucks were \nbrought out every Friday and Saturday and they were full of tools. He also stated he had \nno  workers’ compensation  insurance  but  admitted  that  there  was  in  fact  a  discussion \nabout  insurance.  He  was  looking  into  purchasing  builders’ risk  for  the  property.  The \nrespondent  admitted  to  supplying  the  air  compressor  and  the  generator  which  were \nalready  on  site  and  hooked  up  to  his  camper.  He  went  on  to  explain  that  solar  panels \nwould not power a coffee pot. He also admitted to providing a baker’s scaffolding that he \nhad bought at a yard sale, but that they never used it. (Tr. 49 - 52) In regard to supplies, \nthe respondent stated that Tom would call or text, and the supplies would be dropped off, \nand he “would go into town six days a week to check on the phone store so I had a jeep \nand trailer and so a lot of times I would be called or texted and told to pick up supplies.”  \nHe went on to state that a lot of the texts were in regard to picking up supplies. He was \nrelying on Thomas and his crew to build a serviceable building but admitted to picking out \npaint  colors  and  tile  and  things  of  that  nature.  The  respondent  denied  that  Tom,  the \nclaimant, or  Jim  Halstead, had  anything  to  do  with  the  cell  phone  business.  The \n\nDavid Otwell – H303124 \nrespondent denied supervising the claimant’s work on the day of the accident or any other \nday. (Tr. 53, 54) \nUnder cross examination, the respondent denied ever filing a 1099 with the IRS. \n(Tr. 55) He did admit that when he resided at 90 Moore Avenue, he did say that he might \nbuild a house on it to rent but “I never said for sure that we were going to build anything \nuntil the other two houses sold.”  He denied there being a possibility of rentals for income \npurposes at that point. (Tr. 56) The respondent also denied making house calls in the cell \nphone business and further stated that his employees never went to homes or businesses \nto assist in installation and getting things to work right. “They come to us.  No, we are not \na “go to you” business.”” (Tr. 58) The respondent was also asked “And did you not direct \nsometimes to them to do something other than what they wanted to do?”  He responded \n“No.  They didn’t listen to a word I said.” (Tr. 59) \nOn redirect, the respondent confirmed he was not on the building site when the \naccident happened but was down on the river a couple of hundred yards away.  (Tr. 60)   \n   The claimant was then recalled, and he stated he had been told multiple times that \nthe property was a rental house, and that he had even been told that a purchased vehicle \ncharger would allow an extra $20.00 rent charge. In regard to the skills of the respondent, \nthe claimant replied, “He said he wasn’t an expert and that’s why he hired us.” (Tr. 63) \nThe claimant also testified that he was sure the respondent sometimes got things for the \nproject although he couldn’t recall 100% but that “He was in charge.”  The claimant was \nalso asked about workers’ compensation insurance and was he ever told that it was in \nplace, and he responded “No, sir. He did not.” (Tr. 64) \n\nDavid Otwell – H303124 \n Claimant  submitted Medical  Exhibit One  which  was  admitted  without  objection. \nThe exhibit provided that the claimant was presented to UAMS by med flight on June 25, \n2022, with a closed unstable burst fracture of the second lumbar vertebra, with multiple \nfractures  of  ribs,  bilaterally  which  were confirmed  by  the  MRI and which  also  showed \ncompression fractures of the L1 and L4 vertebral bodies and severe canal compression \nwith  increased  T2  hypersensitivity.  There  was  no  evidence  of  traumatic  injury  to  the \nthoracic  spine.      Surgery  was  performed  on  June  26,  2022, and  the  postoperative \ndiagnoses provided for vertebral fractures of the L1, 2, 3 and 4 with a T12 spinous and \nlaminar fracture.  A burst fracture and a three-column injury at L2 resulted in a neurologic \ndeficit.  Additionally, two large traumatic dural tears with exposed nerve roots required a \nneural patch.  Left ankle imaging provided for no fracture or dislocation.  Imaging of the \nright  wrist  provided  for  a  well  corticated  bone  fragment  along  the  dorsum  of  the  wrist, \nwhich could have been secondary to a triquetral fracture. (Cl. Ex. 1, P. 1 – 9) \n The  claimant  also  submitted  25  pages  of  text  messages  without  objection. The \ntexts consisted of the respondent requesting guidance on items to pick up, such as how \nlong “a piece of rigid” should he get or asking where an item was going to be obtained, \nalong with questions about doors and windows with the respondent requesting a picture \nand responding upon receipt of a photo, that it “looks good.” One text asked the claimant \nwhether he would suggest an indoor or outdoor tankless water heater and he responded \nthat an outdoor model would save on venting. Another text was sent in regard to breakers \nand who should purchase them. Another text requested the respondent stop and obtain \nnails and the respondent requested a picture so he would know which ones to pick up.  \nAt one point, the respondent discovered a DeWalt nail gun and asked the claimant if he \n\nDavid Otwell – H303124 \nneeded it. The respondent was asked if he had contacted Batesville Glass at one point \nand he responded  that  they  would  be  out  to  the  project  on  Friday  or  Saturday.  The \nrespondent was also asked about picking out can-lights and providing a layout for them, \nalong with the speakers and ceiling fan. The respondent was also asked about a light or \nvanity light above a sink and also about caulking the siding. There were also texts about \npaying for items and a picture of a cotton mouth or a copper head snake in a hole. (CL. \nEx. 2, P. 1 – 25) \n The  respondents  also  submitted  21  pages  of  non-medical  exhibits  without \nobjection. The items consisted of the Contracting license for Thomas Moore.  (Resp. Ex. \n1, P. 1) In addition, invoices directed to the respondent Jerry Roberson for the labor of \nthree men,  the  cost  of  two  trucks,  and  a  variety  of  materials  and  other  items  were \nintroduced. (Resp. Ex. 1, P. 2 -17) A photo of the M & A Jones truck was also introduced \nas well as a photo of the house under construction. (Resp. Ex. 1, P. 18, 19) A list of the \nCell Phone Central Employees was also introduced, which did not include the name of \nthe claimant. (Resp. Ex. 1, P. 20, 21) \n The  respondents  also  summitted  the  deposition  of  the  claimant  dated  July  12, \n2023, which was  admitted  without  objection.  The  claimant  testified  under  direct in  the \ndeposition that he had learned in his apprentice program back in the 90’s how to basically \ndo  anything  as  far  as  construction  for  a  commercial  job.  He  stated  that  as  a  general \ncontractor, “we could take it from the ground up” and that he had been in the construction \nfield ever since, after starting in 1994. He also stated that he had never been a general \ncontractor.  (Resp.  Ex.  3,  P.  6)  He  admitted  that  he  was  working  for  M  &  A  Jones \nConstruction, where he is still employed and that he had been with them for 22 years. \n\nDavid Otwell – H303124 \n(Resp. Ex. 3, P. 9) While working for M & A Jones, the claimant stated he answered to \nKyle Johnson, the senior project manager, and to Arch Jones, the owner of the company \nuntil  the  end  of  2021. At  that  time,  C  &  S  Contracting  took  over  the  ownership.  This \ncompany only performed commercial work. (Resp. Ex. 3, P. 12 -13) \n The  claimant  stated  the  first  house  that he  worked on  for  the  respondent  was a \nhome where he was living, and that Tom Moore was working on the house and needed \nhelp and asked the claimant to assist him. He went on to explain that the house where \nthe injury occurred was a rental house. They started building that house with the help of \nJim  Halstead,  who  was  also  an  employee  of  M  &  A  Jones.  All  three  of  them  were \nemployed  by M  &  A  Jones. He affirmed that he never worked for the respondent’s \nbusiness in Batesville and the project where he fell was a residence and not a commercial \nbuilding and that M & A was not doing this job. (Resp. Ex. 3, P. 15 – 20) \n The claimant went on to state that he worked four tens for M & A Construction and \nthen would work Friday and Saturday on the residence. They had agreed to a rate to be \npaid by  the  respondent,  and  were  paid  in  cash,  and he  and  Tom were  paid  the  same, \n$30.00 an hour. He thought Jim was also paid the same. He did not see the respondent \npay any of the tradesmen, but he was aware that the respondent did hire someone to put \non the roof and finish the sheetrock. (Resp. Ex. 3, P. 21, 22) No one from the respondent’s \ncompanies came around and gave instructions, only the respondent. He would come and \ntell us what he wanted. He did not tell us how to apply the paint or the Sheetrock or how \nto put up the trusses. The claimant admitted that he was not told when to start and end \nwork but did state that the respondent wanted the house built as fast as possible. The \nrespondent also  supplied  the  materials  and  air  compressors,  table  saws,  generators, \n\nDavid Otwell – H303124 \nscaffolds, and scaffold boards. (Resp. Ex. 3, P. 23, 24) The claimant also thought that \nthey might have used some tools owned by M & A Jones. “For the most part, we used \nour personal tools or his tools.”  “Well, a carpenter always uses his personal tools.” (Resp. \nEx. 3, P. 25) \n In regard to payment, Tom would prepare one invoice and give it the respondent.  \nThe claimant could not remember if he was ever paid separately by the respondent, but \ndid remember that the respondent would give them money to pay Jim. (Resp. Ex 3, P. \n28) The claimant stated that it was his understanding, that the house where the accident \noccurred was going to be used for something like an Airbnb or a Vrbo rental. He further \nstated that the respondent never indicated that he was going to use it. However, it was \nhis understanding that he was building it for himself. (Resp. Ex. 3, P. 42, 43) \n Under  examination  by  the  claimant’s  attorney,  the  claimant  stated  that the \nrespondent approached both of them at the same time to go to work and build the house.  \nThe  claimant  also  stated  he  was  part  of  the  process  preparing  the  invoices,  although \nThomas always gave the invoice to the respondent. The claimant also testified that they \nwould be told by the respondent when he wanted something finished by a certain time. \n(Resp. Ex. 3, P. 44 – 46)  \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn determining whether the claimant has sustained his required burden of proof, \nthe  Commission  shall  weigh  the  evidence  impartially,  without  giving  the  benefit  of  the \ndoubt to either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. 364, \n768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence on \n\nDavid Otwell – H303124 \nall issues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., 54 \nArk. App. 344, 925 S.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act  and  must  sustain  that  burden  by  a \npreponderance of the evidence. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101 S.W.3d 252 (2003).  Questions concerning the credibility of witnesses and the weight \nto  be given  to  their  testimony  are  within  the  exclusive  province  of  the  Commission.  \nPowers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there \nare contradictions in the evidence, it is within the Commissions’ province to reconcile \nconflicting evidence and to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. \nApp.  162,  258  S.W.3d  394  (2007).   However,  the  Commission  may  not  arbitrarily \ndisregard the testimony of any witness.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. \n230, 184 S.W.3d 31 (2004).  \n   In the present matter, all parties agreed that the claimant suffered serious injuries \nwhen he fell from a ladder where he was painting on the second floor of a construction \nproject where the property was owned by the respondent. The primary question before \nthe Commission is to determine if an employee/employer carrier relationship existed at \nthe  time  of  the  injury.  The testimony  provided  that  the claimant  had  worked  in  the \nconstruction  carpentry  business  his  entire  life  and  had  worked  for  M  &  A  Construction \n(also called CNS Contracting due to a change in ownership) for over 20 years. He would \nwork for four ten-hour days, Monday through Thursday for M & A Construction, and then \n\nDavid Otwell – H303124 \nwas allowed to find side jobs to work on during his own time. He was allowed to use the \nconstruction trucks of M & A Construction along with the tools on the truck, plus additional \ntools  of  the  company  such  as  a  laser on the side  jobs. The  claimant  testified  that “a \ncarpenter  always  uses  his personal  tools” but that  he also  used  a  generator, an  air \ncompressor and  a  table  saw that  were  stored  on  the  site  of  the  construction on  the \nproperty that were owned by the respondent.    \nThe claimant became acquainted with the respondent on a previous job repairing \na home which the respondent lived in with his wife, and at the time of the accident he was \nworking with two other M & A employees on a house which they were constructing on the \nriver for the respondent. The claimant testified he understood that the property was going \nto be rental property, but the respondent testified that since he had sold all of his other \nproperty, he intended for the construction to become his residence. \nThe claimant testified there had been some discussion with all the parties involved \nthat  the  respondent  was  going  to  obtain  insurance  but  admitted  that  workers’ \ncompensation insurance was not specifically mentioned. The claimant also testified that \nhe  had  worked  on  other  side  projects  where  there  was  no  workers’  compensation \ninsurance covering them. The respondent testified he had mentioned insurance and that \nhe had looked into builder’s risk insurance. \nIn regard to the actual project, the invoices were always submitted and prepared \nby Thomas Moore, one of the claimant’s co-workers on the project, and they provided for \nthe number of men working (usually two or three), two trucks, and any materials which \nthey  purchased. The  claimant  testified  he  assisted in  preparing  the  invoices  and  he \nthought that the third worker, Jim, was paid the same as Tom and he were. The invoices \n\nDavid Otwell – H303124 \nwere always paid in cash by the respondent on a Saturday. The respondent paid for most \nof the supplies. \nIn regard to supervision on the project, a number of text messages were entered \ninto the record,  and the majority of them involved the respondent picking up additional \nsupplies  in  town at  the  instruction  of  the  claimant  and  his  co-workers.  The  respondent \nadmitted that he was in town every day due to his computer business, that he had a Jeep \nand trailer, and he would attempt to pick up items for the construction, in an attempt to \nkeep  the  claimant  and  his  partners  on  the  job  site.  A  few  of  the  text  messages asked \nabout how an item would appear such as windows. One text discussed the discovery of \nsnakes in a hole near the construction. The claimant stated in his deposition in regard to \nthe skills of the respondent that “He wasn’t an expert and that’s why he hired us.” The \nclaimant also admitted that the respondent never instructed them on how to paint, how to \nhang trusses, or how to roof, due to the fact they were in the construction business. The \nrespondent admitted to picking out paint colors and tile and things of that nature. \nIn regard to the respondents’ business, Cell Phone Central, the claimant admitted \nhe was never paid by the company and the evidence provided he was not listed as an \nemployee. The company owned no property and made no house calls. The respondent \ntestified his customers for the cell phone business came to the business and that it was \nnot a “go to your business.” The business, which was sold in January of 2023, repaired \ncell phones, I-Pads, computers and everything electronic. The business owned no real \nestate nor had anything to do with construction. \nThe following are factors that are to be weighed in drawing the line between an \nindependent  contractor  and  an  employee: (1)  the  extent  of  control,  which  by  the \n\nDavid Otwell – H303124 \nagreement, the master may exercise over the details of the work; (2) whether or not the \none employed is engaged in a distinct occupation or business; and (3) whether or not the \nwork is a part of the regular business of the employer.  An independent contractor is one \nwho contracts to do a job according to his own method without being subject to the control \nof the other party, except as to the result of the work.  The right to control is the principal \nfactor in determining whether one is an employer or an independent contractor.  The right \nto control and not the actual control determines the relationship.  See ConAgra Foods, \nInc. v. Draper, 372 Ark. 361, 276 S.W. 3d 244 (2008) In workers’ compensation law, an \nindependent  contractor  is  one  who  contracts  to  do  a  job  according  to  his  or  her  own \nmethod and without being subject to the control of the other party, except as to the result \nof  the  work. There  is  no  fixed  method  by  which  to  determine  whether  a  person  is  an \nemployee or an independent contractor.  However, some factors guide the court’s inquiry.  \nThey are as follows: (a) the extent of control which, by the agreement, the master may \nexercise over the details of the work, (b) whether or not the one employed is engaged in \na distinct occupation or business. (c) the kind of occupation, with reference to whether, in \nthe locality, the work is usually done under the direction of the employer or by a specialist \nwithout  supervision,  (d)  the  skill  required  in  the  particular  occupation,  (e)  whether  the \nemployer or the workman the supplies the instrumentalities, tools, and the place of work \nfor the person doing the work, (f) the length of time for which the person is employed, (g) \nthe method of payment, whether by the time or by the job, (h) whether the work is part of \nthe regular business of the employer, (i) whether the parties believe they are creating the \nrelation of master and servant; and (j) whether the principle is in the same business as \n\nDavid Otwell – H303124 \nthe alleged independent contractor.  See Davis v. Ed Hickman, P.A., 220 Ark. App. 188, \n598 S.W. 3d. 70, 2020)   \nHere  it  is  clear  that  the  respondent’s  business,  electronic  repairs,  had  no \nconnection to the construction business and that construction was clearly not part of the \nregular  business  of  the  respondent, and clearly  a  distinct  occupation  with  a totally \nseparate skill set. The claimant admitted in his deposition that they were hired due to the \nfact “He wasn’t an expert and that’s why he hired us” in a reference to the respondent.  \nThe  text  messages  showed  that  the  respondent  primarily  was  contacted  to  pick  up \nsupplies  in  town,  and  that  he  often  had  to  ask  questions  in  regard  to  what  to pick  up.  \nFurther, although some of the respondent’s tools were used, the claimant also admitted \nusing  some  of  the  construction  company’s tools were  also used and  stated  that  as  a \ncarpenter, they primarily used their own tools.  \nBased  upon  the  above  evidence  and  the  applicable  law,  and  after  weighing  the \nevidence  impartially,  without  giving  the  benefit  of  the  doubt  to  either  party,  there  is  no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nto  prove  by  a  preponderance  of  the  evidence  that an  employee/employer  carrier \nrelationship existed at the time of the claimant’s accident. Consequently, all other issues \nare moot. If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nIT IS SO ORDERED. \n     \n      ___________________________ \n      JAMES D. KENNEDY  \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303124 DAVID OTWELL, EMPLOYEE CLAIMANT JERRY LYNN ROBERSON RESPONDENT EMPLOYERS REFERRED INSURANCE CO., RESPONDENT CARRIER/TPA OPINION FILED NOVEMBER 1, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 18 TH day of September 2024, in ...","fetched_at":"2026-05-19T22:46:04.833Z","links":{"html":"/opinions/alj-H303124-2024-11-01","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/OTWELL_DAVID_H303124_20241101.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}