{"id":"alj-H303124-2025-07-29","awcc_number":"H303124","decision_date":"2025-07-29","opinion_type":"alj","claimant_name":"David Otwell","employer_name":"Jerry Lynn Roberson","title":"OTWELL VS. JERRY LYNN ROBERSON AWCC# H303124 July 29, 2025","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["back","fracture","lumbar","thoracic","ankle","wrist"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/OTWELL_DAVID_H303124_20250729.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OTWELL_DAVID_H303124_20250729.pdf","text_length":49865,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303124 \nDAVID OTWELL, EMPLOYEE      CLAIMANT \n \nJERRY LYNN ROBERSON      RESPONDENT  \n \nEMPLOYERS REFERRED INSURANCE CO.,  \nCARRIER/TPA        RESPONDENT \n \nOPINION ON REMAND FILED JULY 29, 2025 \nThe original Hearing  before  Administrative  Law  Judge,  James  D. Kennedy, was \nheld on the 18\nTH\n day of September, 2024, in Mountain Home, Arkansas, and an opinion \nwas issued on November 1, 2024.  After an appeal to the Full Commission, the matter \nwas  remanded on  May  22,  2025, to  the  ALJ  to  enter additional findings  of  fact  and \nconclusions  of  law  in accordance  with  Ark. Code Ann.  11-1-204  and  to adjudicate and \nreview the Empower Independent Contractors Act and its twenty factors. \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. \nSTATEMENT OF THE CASE  \n A hearing  was originally conducted  on  the 18\nth\n day  of September  18,  2024, in \nMountain   Home,   Arkansas, to   determine   the issue of the   existence   of   an \nemployee/employer carrier relation and if the relationship existed, the compensability for \ninjuries  to  the  claimant’s  back,  both  hands  and  wrists,  along  with reasonable  and \nnecessary  medical  care.    The  issues  of  TTD, an impairment  rating,  and  attorney  fees \nwere reserved at the time of the hearing.   \n\nDavid Otwell – H303124 \n2 \n \nA copy of the Pre-hearing Order dated June 4, 2024, as well as the response to \nthe Prehearing Questionnaire by both the Claimant and the Respondent were made part \nof  the  record  without  objection.  The  Order  provided  that  the  Arkansas  Workers’ \nCompensation Commission had jurisdiction of the claim, and the matter was controverted \nin its entirety.  The claimant contended at the time of the injuries to his back, both hands, \nand wrists, that he was in the course and scope of his employment with Jerry Roberson.  \nHe further contended that Mr. Roberson directed the work in regard to the house that he \nwanted completed, provided tools, and paid the Claimant wages for the work completed.  \nAs a result of his injury, the Claimant contended that he was entitled to reasonable and \nnecessary  medical  treatment,  past  due  TTD  benefits  (dates  to  be  determined)  and  an \nimpairment rating including PTD benefits.  The Respondents contended that the Claimant \ndid not meet the statutory definition of an employee. \n From  a  review  of  the  record  as  a  whole, to  include  medical  reports  and  other \nmatters properly before the Commission plus having had an opportunity to observe the \ntestimony and  demeanor of  the  witnesses, and  in  addition  review  and  reach  a \ndetermination of the findings of fact and conclusions of law in accordance with Ark. Code \nAnn  11-1-204  and  also  review  the twenty  factors  of  the Empower  Independent \nContractors  Act, the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance 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. \n\nDavid Otwell – H303124 \n3 \n \n2. That the claimant has failed to satisfy the required burden of proof to show \nthat an employer/employee carrier relationship existed between the claimant \nand the respondent on June 25\nth\n, 2022, the date of the injury.  \n3. That all other issues are found to be moot. \n4.  If not already paid, the respondents are ordered to pay the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  claimant was the initial witness  to  testify.  He  worked almost  30  years  in \nconstruction as a journeyman and testified that he was working for Jerry Roberson, the \nrespondent, on June 25\nth\n, 2022, on a house he had been told was going to be used as \nrental property. This was the property where he was working when the injury occurred.  \nThis property was going to be the respondent’s first rental property per the testimony of \nthe  claimant. The  respondent operated  a cell  phone  repair  facility. The  claimant  also \nworked for M&A/CNS Contracting (Construction), Monday through Thursday.  On Fridays, \nSaturdays, and some Sundays, he worked on the house owned by the respondent. (Tr. \n8,  9) The  claimant  stated that  he  had  previously  worked  on  a  house  owned  by  the \nrespondent, where the respondent resided,  back  in 2021  and  2022,  while working for \nM&A /CNS Contracting (Construction), and that they  did  some  odds  and  ends on  the \nhouse and redid a bathroom.  “After he saw what me and Tom could do, he approached \nus both and asked us if we could build a house for him was - - or build a rental property \nfor him.” He had the property and plans picked out. The respondent bought  all  the \nmaterials,  unless  there was  something  that  we  might  have  forgotten, and  he then \nreimbursed  us  for  it.  In  regard  to the tools,  the respondent furnished  generators,  air \n\nDavid Otwell – H303124 \n4 \n \ncompressors,  miscellaneous  hand  and  power  tools,  and  some  scaffolding  with  the \nscaffold boards. (Tr. 10, 11) The respondent had the right to hire and fire, he paid us in \ncash, paying around $30.00 an hour, and we only worked on the rental property. “If there \nwas something that we needed, he would get it for us.” He went on to state that he had \nworked  on  the  rental  property  from  roughly  January  through  his  fall which  occurred in \nJune. (Tr. 12, 13) \n In regard to the fall, he testified he was painting the two-story house located down \nby the 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 placed him on a med flight. In regard to workers’ compensation insurance, \nthe  claimant testified that the  second  week  out  there, the  respondent told  him and  the \nother workers 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 that he  was  in  a \nwheelchair, and he had been in it since his fall. He admitted that he could walk some with \ncrutches and that he could move both legs, but he had control of one leg more than the \nother. He went on to state that he really did not have any real control of one leg.  He also \ntestified that he had no bladder sensation, so he was required to wear a catheter and had \nissues with his bowel movements. He worked for M & A/CNS for over 20 years. (Tr. 16 – \n18)   He didn’t know if the respondent ever used the term employee with him, but he was \n\nDavid Otwell – H303124 \n5 \n \nsure that he had asked him to quit M & A/CNS to take on a full-time responsibility for the \nconstruction he wanted.   \n Under cross examination, the following questioning occurred: \nQ:  Okay.  And on page 45 of the deposition, we talked about the insurance and your - - \nit says my question. “Did Jerry have a conversation with all three of you about getting \ninsurance?”  And you said, “The first week we were out there, there was no talk.  The \nsecond week we were there, Jerry came back and said I’ve got insurance on you guys, \nbut did not specify the kind of insurance.”  You just said that he told you that he had \nworkers’ comp.  He didn’t tell you that he had 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 lock \nthe 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 \nsame bunch, they just changed on them. \nA:  Yes. \nQ:  And you have been doing that for 22 or 24 years? \n\nDavid Otwell – H303124 \n6 \n \nA:  Yes, sir. \nQ:  Your entire life has been in the construction carpentry business, correct? \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 \nSandy were living in, correct? \nA:  Correct. \nQ:  And your testimony here today and in your deposition was that Jerry asked Tom to \ncome do some work on his house and Tom asked Jerry, I need some help.  I know a guy \nat 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 that he  had  worked probably  eight  or  ten  days \nmaybe, on Jerry and Sandy’s home.  He also stated he was aware that the respondent \nhad a cell phone business, knew he did not have a construction company, and knew he \ndidn’t hold himself out as a construction company.  He also agreed he was never paid a \ndime  by  the  cell  phone  company.  (Tr.  24,  25) After about eight  or  ten  days, where he \nhelped remodel Jerry and Sandy’s house, he didn’t do anything for the respondent for \nfour months or so and during that time-period, he continued working for M & A. He also \nthought he had other side jobs during that time, where he would be paid cash just like the \n\nDavid Otwell – H303124 \n7 \n \nrespondent did, and he was not aware of any of them having workers’ compensation \ninsurance that covered him.  Tom and the claimant continued to be crew leaders with M \n& A during that time-period while performing the side job for the Respondent on Friday \nand  Saturdays.  He  also  admitted  to  having  one  other  side  job during  that time-period \nwhere he worked for someone else doing carpentry.  He admitted he didn’t write any of \nthe  invoices,  but  that  Tom  Moore  was  the  one  who  filled  them  out.  (Tr.  27 – 29)  The \nclaimant also admitted that the invoices that Tom filled out and gave to the respondent \nand which are before the Commission, had labor for three men, for two days, and that \nwas how the respondent paid him. (Tr. 31) The claimant also agreed that they supplied \nsome  of the  ladders  and  the  respondent  supplied  some  of them and they also used  a \nladder off the M & A truck.  Some of the tools came off the M & A truck, including a laser. \n(Tr.  32)  The  respondent was  paying  for  two M  & A  Jones  trucks  to  be  on  site,  in  case \nsomebody  needed  to  go  into  town  to  get  something.    The  claimant  admitted that on \noccasion, they would use some of the M & A Construction tools, but they tended to use \ntheir own personal 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 that he was not on site ten hours \na day 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  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 they would do it and sometimes they would tell him that it did not make any sense.  \nThe claimant admitted that the respondent did not instruct them on how to paint, how to \n\nDavid Otwell – H303124 \n8 \n \nhang trusses, or how to roof, due to the fact they were in the construction business.  The \nclaimant also admitted  that  Tom,  Jim,  and  he  were  all  hired  because  they  were \ncarpenters, and he wasn’t. (Tr. 34 – 37) The claimant was allowed to go work for someone \nelse if he was not working for the claimant on those days. (Tr. 38) He also admitted that \nhe  was  able  to  walk  about  200  feet  with  forearm  crutches  and  was  working  as  a \nsuperintendent for M & A Construction. \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 selling it. The business fixed “cell \nphones, I-Pads, computers, anything electronic.”  He sold the business to his manager \nsometime around January of 2023.  The business did not do anything that wasn’t related \nto  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 \nher husband and stated that he did work like that. (Tr. 42 - 44) Thomas Moore ultimately \n\nDavid Otwell – H303124 \n9 \n \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 Moore and  the  claimant  performed \nrenovations to the  house  which  included  filling  gaps  in  the  sheet  rock,  working in  the \nbathroom, and just general stuff around the house so they could sell it.  The respondent \nstated that he assumed Tom brought the claimant along to have extra help. (Tr. 45, 46) \nIn regard to the property by the river where the accident occurred, the respondent stated \nhe had owned the property since 2009, and after they sold their other property, the only \nproperty  left  was  the  river  property  where  the  accident  occurred and where they  were \ngoing to live.  The respondent testified that he had contacted Thomas in regard to building \non  the  property  and  was  told  to  bring  the  plans  over, which  he  did.  (Tr.  47,  48)  The \nrespondent was questioned about the invoices in regard to the project and he stated that \nThomas would provide the invoices on Saturday, and he would then pay them.  He would \ngive Thomas the money and he had no idea how much the others were paid or how much \nhe kept for himself.  He went on to state that the M & A Construction trucks were brought \nout  every  Friday  and  Saturday  and  they  were  full  of  tools.    He  also  stated  he  had  no \nworkers’ compensation  insurance  but  admitted  there  was  in  fact  a  discussion  about \ninsurance.  He was looking into purchasing builders’ risk for the property.  The respondent \nadmitted to supplying the air compressor and the generator which were already on site \nand  hooked  up  to  his  camper.    He  went  on  to  explain  that the solar  panels that  were \npresent would not power a coffee pot.  He also admitted to providing scaffolding that he \nhad bought at a yard sale, but stated they were never used. (Tr. 49 - 52)  In regard to \nsupplies, the  respondent  stated  that Thomas would  call  and  the  supplies  would  be \ndropped off, and he “would go into town six days a week to check on the phone store so \n\nDavid Otwell – H303124 \n10 \n \nI had a jeep and trailer and so a lot of times I would be called and told to pick up or texted.”  \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 did admit to picking \nout paint colors, tile, and things of that nature.  The respondent denied that Thomas, the \nclaimant, or  Jim  Halstead, had  anything  to  do  with  the  cell  phone  business.    The \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 we were going to build anything until \nthe 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.”  We are not a \n“go to you” business. (Tr. 58) The  respondent  was  also asked  did  you  not sometimes \ndirect them to do something other than what they wanted to do, and he responded “No.  \nThey 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 had even been told that a purchased vehicle charger \nwould allow an extra $20.00 rental charge.  In regard to the skills of the respondent, the \nclaimant replied, “He said he wasn’t an expert and that’s why he hired us.” (Tr. 63)  The \n\nDavid Otwell – H303124 \n11 \n \nclaimant  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 Claimant submitted a medical exhibit which was admitted without objection. The \nexhibit provided that the claimant was taken to UAMS by med flight on June 25, 2022, \nwith  a  closed, unstable  burst  fracture  of  the  second  lumbar  vertebra,  with  multiple \nfractures  of  ribs,  bilaterally  which  were confirmed  by an 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 \n\nDavid Otwell – H303124 \n12 \n \nthat an outdoor model would save on venting.  A text was sent in regard to breakers and \nwho should purchase them.  Another text requested the respondent stop and obtain nails \nand the respondent requested a picture so he would know which ones to pick up.  At one \npoint, the respondent discovered a Dewalt nail gun and asked the claimant if he needed \nit.  The respondent was asked if he had contacted Batesville Glass at one point and he \nresponded  they  would  be  out on  Friday  or  Saturday.    The  respondent  was  also asked \nabout picking out can-lights and providing a layout for them, along with the speakers and \nceiling fan.  Additionally, he was asked about a light or vanity light above a sink and about \ncaulking the siding.  There were also texts about paying for items and a picture of a cotton \nmouth or a copper head snake in a hole. (CL. Ex. 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 \nCellphone Central Employees was also introduced, which did not include the name of the \nclaimant. (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 \n\nDavid Otwell – H303124 \n13 \n \nfield  ever  since, after  starting  in  94.    He also  stated that  he  had  never  been a  general \ncontractor.  (Resp.  Ex.  3,  P.  6)  He  admitted  that  he  was still working  for  M  &  A  Jones \nConstruction,  and  that  he  had  been  with  them  for  22  years.  (Resp.  Ex.  3,  P.  9)  While \nworking  for  M  &  A  Jones,  the  claimant  stated  that  he  answered  to Kyle  Johnson,  the \nsenior project manager, and to Arch Jones, the owner of the company until the end of \n2021.  At  that  time,  C  &  S  Contracting  took  over  the  ownership.    This  company  only \nperformed commercial work. (Resp. Ex. 3, P. 12 -13) \n The claimant testified that the first house that he worked on for the respondent was \na home where he was living, and Thomas 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 Construction. He affirmed that he had \nnever worked for the respondent’s business in Batesville and the project where he fell \nwas a residence and not a commercial building and that M & A was not doing this job. \n(Resp. Ex. 3, P. 15 – 20) \n The claimant went on to state he worked four tens for M & A Construction and then \nwould work Friday and Saturday on the residence.  They had agreed to a rate to be paid \nby the respondent, and were paid in cash, and he and Tom were paid the same, $30.00 \nan hour.  He thought Jim was also paid the same.  He did not see the respondent pay \nany of the tradesmen, but he was aware that the respondent did hire someone to put on \nthe roof and finish the sheetrock. (Resp. Ex. 3, P. 21, 22) No one from the respondent’s \ncompany 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 \n\nDavid Otwell – H303124 \n14 \n \nto put up the trusses.  The claimant admitted that he was not told when to start and end \nwork but  did  state  the  respondent  wanted  the  house  built  as  fast  as  possible.   The \nrespondent also  supplied  the  materials  and  air  compressors,  table  saws,  generators, \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 Construction. “For the most part, we \nused our personal tools or his tools.”  “Well, a carpenter always uses his personal tools.” \n(Resp. Ex. 3, P. 25) \n In  regard  to  payment,  Thomas would  prepare  one  invoice  and  give  it  the \nrespondent.    The  claimant  could  not  remember  if  he  was  ever  paid  separately  by  the \nrespondent, but did remember that the respondent would give them money to pay Jim. \n(Resp. Ex 3, P. 28) The claimant stated it was his understanding that the house where \nthe accident occurred was going to be used for something like an Airbnb or a Vrbo rental.  \nHe  further  stated  that  the  respondent  never  indicated  that  he  was  going  to  use  it.  \nHowever, it was his understanding he was building it for himself. (Resp. Ex. 3, P. 42, 43) \n Under direct 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 \n\nDavid Otwell – H303124 \n15 \n \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 \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  the  claimant suffered  serious  injuries \nwhen  he  fell  from  a  ladder  while painting  on  the  second  floor of  a  construction  project \nowned by the respondent.  The primary question before the Commission is to determine \nif  an  employee/employer  carrier  relationship existed at  the  time  of  the  injury.    The \ntestimony provided that the claimant had worked in the construction carpentry business \nhis entire life and had worked for M & A Construction (now called CNS Contracting due \n\nDavid Otwell – H303124 \n16 \n \nto a change in ownership) for over 20 years.  He would work four ten-hour days, Monday \nthrough Thursday for M & A Construction, and then was allowed to find side jobs to work, \nduring his personal time.    He  was  allowed  to  use  the  construction  trucks  of  M  &  A \nConstruction  along  with  the company tools  on  the  truck,  plus  additional tools  of  the \ncompany such as a laser, on the side jobs.  The claimant testified that “a carpenter always \nuses his personal tools” but additionally used a generator, an air compressor, and a table \nsaw which were stored on the construction site and owned by the respondent.    \nThe claimant became acquainted with the respondent on a previous job repairing \na home where the respondent lived with his wife, and at the time of the accident he was \nworking  with  two  other  M  &  A Construction employees on the house which they  were \nconstructing on the river for the respondent.  The claimant stated he understood that the \nproperty was going to be rental property, but the respondent testified that since he had \nsold all his other property, he intended for the construction to become his residence. \nThe claimant testified there had been some discussion with all the parties that the \nrespondent  was  going  to  obtain  insurance but  admitted  that  workers’  compensation \ninsurance was not specifically mentioned.  The claimant also testified that he had worked \non other side projects where no workers’ compensation insurance covered them.  The \nrespondent  testified he  had  mentioned  insurance  and had looked into a builder’s risk \npolicy. \nIn regard to the actual construction project, the invoices were always submitted by \nThomas Moore, who was also an employee of M & A Construction, and who recruited the \nclaimant to work on the project.  The invoices provided for the number of men working \n(usually  two  or  three),  two  trucks,  and  materials  purchased.  The  claimant  testified  he \n\nDavid Otwell – H303124 \n17 \n \nassisted in  preparing the  invoices  and thought  that  the third  worker,  Jim, was paid  the \nsame as Thomas and he were.  The invoices were always paid in cash by the respondent \non a Saturday.  The respondent paid for most of the supplies. \nIn regard to supervision of the project, a number of text messages were entered \ninto the record with the majority of them involving instructing the respondent to pick up \nadditional  supplies  in  town at  the  instruction  of  the  claimant  and  his  co-workers.    The \nrespondent admitted he was in town every day due to his computer business, that he had \na  Jeep  and  trailer, and that he  would  pick  up  items  for  the  construction, attempting 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 respondent’s skills, “He wasn’t an expert and that’s why he hired us.”  The claimant \nalso admitted the respondent never instructed them on how to paint, how to hang trusses, \nor how to roof, due to the fact they were in the construction business.  The respondent \nadmitted 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 you 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. \n\nDavid Otwell – H303124 \n18 \n \nThe applicable version of Ark. Code. Ann 11-1-204 at the time of the accident in \nquestion adopted a 20-factor test, to be weighed in determining whether an individual is \nan employee or an independent contractor. The case of Franklin v. Arkansas Kraft, Inc. \n5  Ark.  App.  264,  635  S.W.2d  286  (1982), which was  cited  in Riddell Flying  Serv.  V.  \nCallahan,  90  Ark.  App.  388,  206  S.W.  3d  284  (2005), applied the previous nine  factor \ncommon law test applicable at the time of that decision to make the factual determination \nof whether an individual was an employee or an independent contractor.  This is still found \nto be applicable in regard to the current 20 factor test of Ark. Code Ann 11-1-204.  Franklin \nprovided as follows: \n“There  are  numerous  factors  which  may  be  considered  in  determining \nwhether an injured person is an employee or an independent contractor for \npurposes of workers' compensation coverage.  Obviously, the relative weight \nto  be  given  the  various  factors must be determined by the Commission.”  \nSome of the factors which might be considered, depending on the facts of a \ngiven case, are [referring to the previous nine factors that are omitted here]. \n“These are not all the factors which may be considered in a given case, and \nit may not be necessary in some cases for the Commission to consider all of \nthese factors.  Traditionally, the “right to control” test has been sufficient to \ndecide most cases, although many variations of “control have probably been \nsqueezed into the test.” \nIt appears that the Arkansas legislature looked to IRS regulations for the language \nof  Ark.  Code  Ann  11-1-204 that  was  applicable  at  the  time  of  the  accident to  provide \nguidance to determine if someone was in fact an employee or an independent contractor: \nPeople  such  as  doctors,  dentists,  veterinarians,  lawyers,  accountants, \ncontractors, subcontractors, public stenographers, or auctioneers who are in \nan independent  trade,  business, or  profession, in  which  they  offer  their \nservices  to  the  general  public, are  generally  independent  contractors.  \nHowever, whether these people are independent contractors or employees \ndepends on the facts in each case.  The general rule is that an individual is \nan independent contractor if the payer has the right to control or direct only \nthe result of the work and not what will be done and how it will be done.  See \nhttps://ww.irs.gov/business/small-business-self-employed/independent-\ncontractor-defined. \n\nDavid Otwell – H303124 \n19 \n \nBased  upon  the  above,  the  application  of  the applicable 20  factor  test will be \nreviewed: \n(1) A person for whom a service is performed has the right to require compliance with \ninstructions, including without limitation, when, where, and how a worker is to work:  \nThe  claimant testified  in  his  deposition introduced  into  the  record  that  in  regard  to  the \nrespondent, “He wasn’t an expert and that’s why he hired us.”  The claimant also admitted \nthat the respondent never instructed them on how to paint, hang trusses, or how to roof, \ndue to the fact they were in the construction business.  The respondent admitted to picking \nout paint colors, tiles, and things of that nature.  Here, it is found that the respondent was \nnot instructing the claimant how to perform the building services.  The testimony provided \nthat the respondent was in the business of repairing cell phones, I-Pads, computers, and \nanything electronic, and prior to his computer and electronics business, was a landscaper.  \nHe admitted to working one time as an electrician’s helper but contended that he had no \ncarpentry  skills  or  skills  of  any  kind  that  translated  into  the  construction  of  a  home  or \nresidence  and  this  testimony is  found  to  be believable.  The  claimant admitted  that he \nwas not told when to start or stop work.   \n \n(2) A worker is required to receive training, including without limitation through: \n(A) Working with an experienced employee; \n(B) Corresponding with the person for whom a service is performed; \n(C) Attending meetings; or \n(D) Other training methods: \n\nDavid Otwell – H303124 \n20 \n \nIn the present matter, there was no evidence as to training of any type by the respondent  \nor of  the  claimant working  with  an  experienced  employee of  the  respondent,  just \ntestimony that the claimant was aware that the respondent was very limited in regard to \nthe construction  skills which  he  possessed and  consequently, this  was the  reason  the \nclaimant  was  hired  in  regard  to  the  construction.  In  addition,  the  claimant  admitted  to \nbeing in the construction business since the 90’s and that he started his carpentry training \nas an apprentice. \n(3) A  workers’  services  are  integrated  into  the  business  of  the  person  for  whom  a \nservice is performed and provided in a way that shows the workers’ services are subject \nto the direction and control of the person for whom a service is performed:   \nHere it is clear that the respondent was in the business of computer and electronics repair \nand not in the construction business.  Although the respondent at times did in fact pick up \nitems for the construction project, it is found he was already in town and was attempting \nto  keep  the  claimant  on  the  job  site.  The  claimant  had  been  trained  as  a  carpenter, \nstarting his training and work in the carpentry trade or profession back in the 90’s. \n(4) A worker’s services are required to be performed personally, indicating an interest \nin the methods used and the results:  \nHere,  there’s no  evidence  that claimant  was  required  to  perform  specific  services \npersonally as directed by the respondent.  The claimant did work personally with Thomas \nMoore and another worker from the construction company as they determined what was \nappropriate  in  regard  to  the  construction  project.  The  claimant  and  the  other  workers \nfrom M & A Construction were carpenters or builders with years of experience. \n\nDavid Otwell – H303124 \n21 \n \n(5) A person for whom a service is performed hires, supervises, or pays assistants:  \nHere, the  claimant  admitted  to  having  other  side  jobs,  working  for  another  person \nperforming carpentry, and working as a crew leader for M & A Construction, now named \nCNS, 40 hours a week.  He admitted that he was never paid a dime by the cell phone \ncompany and  there  was no evidence  of  a  direct  payment  from  the  respondent  to  the \nclaimant.  In regard to payments involving the construction project on the property, the \nrespondent stated he paid Thomas Moore (the partner or supervisor of the claimant) on \nSaturday and he had no idea how much the others were paid or how much Thomas Moore \nkept for himself.  Thomas Moore asked if he could hire the claimant. These facts are found \nto be believable.  \n(6) A  continuing  relationship exists between  a  worker  performing  services  and  a \nperson for whom a service is performed:   \nHere there is nothing to show that there was in fact a continuing relationship between the \nclaimant and the respondent except for this specific job and an earlier remodel job that \nhad been completed.  The claimant worked for M & A Construction forty hours a week for \nyears  and  was  still  working  there  at  the  time  of  the accident  and  the hearing.  There \nappears to be no agreement involving a continuing payment from the respondent to the \nclaimant. \n(7) A worker performing a service has hours set by the person for whom the service \nis performed:   \nThe claimant admitted that he was not told when to start or stop work.  It could be argued \nthat the evidence appeared to show that the supervisor of the project was in fact Thomas \nMoore, although Moore could  also  be  considered  a  co-worker.  It  is  also  clear  the \n\nDavid Otwell – H303124 \n22 \n \nrespondent was not a carpenter or contractor and did not provide instructions on how to \nperform the work. \n(8)   A worker is required to devote substantially full time to the business of the person \nfor whom a service is performed, indicating the person for whom a service is performed \nhas control over the amount of time the worker spends working and by implication restricts \nthe worker from obtaining other gainful work:   \nHere  the  claimant  admitted  that  he  worked  a  full-time  40-hour  week  for  M  &  A \nConstruction, now named CNS.  He also admitted to at least one additional side job.  He \nclearly did not work full time for the respondent and even admitted that he was aware that \nthe respondent did not own a construction company. \n(9) (A) The work is performed on the premises of the person for whom a service is \nperformed,  or  the  person  for  whom  a  service  is  performed  has control  over  where  the \nwork takes place.  (B) A person for whom a service is performed has control over where \nthe  work  takes  place  if  the  person  has  the  right  to  (i)  Compel  the  worker  to  travel  a \ndesignated route, (ii) Compel the worker to canvass a territory within a certain time; or (iii) \nRequire  that  the  work  be  done  at  a  specific  place,  especially  if  the  work  could  be \nperformed elsewhere:   \nHere, it is clear the work had to be performed at a set location, because the work involved \nconstructing a building or house and it would be impossible to build it at another location, \nunless  the  construction  was  going  to  involve  building a modular  building,  which  was \nclearly not the case in the present matter.  It is also clear that the claimant was not told \nwhen to  start or  stop work, was never instructed to  canvass  a  territory  within a  certain \ntime and was never instructed to travel a designated route.  \n\nDavid Otwell – H303124 \n23 \n \n(10) A worker is required to perform services in the order or sequence set by the person \nfor whom a service is performed or the person for whom a service is performed retains \nthe right to set the order or sequence:   \nHere, it is found that there is no convincing proof the respondent instructed the claimant \nas to the order or sequence to build the residence or house. \n(11) A worker is required to submit regular or written reports to the person for whom a \nservice is performed:  There is no evidence that any regular reports were submitted, with \nthe exception of invoices submitted by Thomas Moore, the carpenter who possessed a \ncontractor’s license and who arguably was in charge of the project and who recruited the \nclaimant.   \n(12) A worker is paid by the hour, work, or month except when he or she is paid by the \nhour, week, or month, only as a convenient way of paying a lump sum agreed upon as \nthe cost of the job.  Here, Thomas Moore would submit an invoice on Saturday, and the \nrespondent would pay the invoice.  The claimant testified that he thought they were all \npaid  the  same  amount, and  the  respondent  testified  that  he did  not  know  how  the \npayments regarding  the  invoice  were divided  up.  Payments  were  made  based on the \nsubmitted invoices. \n(13) A person for whom a service is performed pays the worker’s business or traveling \nexpenses:  \nThe  testimony  provided  that  the individual Thomas  Moore,  who initially was contacted \nabout  the  building  project  and  who  recruited  the  claimant,  would  submit  an  invoice  on \nSaturday.  The respondent would then pay the invoice, but as stated multiple times above, \nthe respondent was never aware of how the money from the invoice was distributed and \n\nDavid Otwell – H303124 \n24 \n \nthis  is found  to  be believable.  There was  absolutely  no  evidence that  travel  expenses \nwere ever paid. \n(14) A person for whom a service is performed provides significant tools and materials \nto the worker performing services:  The testimony provided that the claimant and Thomas \nMoore, the man who submitted the invoices, would on occasion use M & A Construction \ntools and they kept a M & A vehicle on site, but they tended to primarily use their own \npersonal tools. The claimant and his co-workers used ladders from M & A Construction, \nthe respondent, and their own ladders.  The respondent’s generator and air compressor, \nwhich were  on  site  prior  to  the  construction, were  used  by  both  the  claimant  and  his \ncoworkers.  The respondent did have some scaffolding purchased at a garage sale which \nwas  available  but was  never  used by  the  claimant.   The  respondent admitted  that  he \nwould pick up supplies in town when texted or called.  Here, it is found that the respondent \nonly  provided  a  limited number of  tools,  and that  he primarily only  picked  up  items  as \ninstructed by the claimant or Tom Moore.  Primarily, the claimant used his personal tools. \n(15) A worker invests in the facilities used in performing the services:  Here the facilities \nconsisted of a private residence or building, and this section is found to not be applicable. \nThere is absolutely no evidence the claimant or his co-workers invested in the building \nproject except working and getting paid for their construction work. \n(16) A worker realizes a profit or suffers a loss as a result of the services performed \nthat is in addition to the profit or loss ordinarily realized by an employee:   \nHere,  it  is  found that  the  claimant  was  directly  paid  by  Thomas  Moore, who  could  be \nconsidered the claimant’s partner or supervisor on the construction job, involving  the \nhome or the building of the respondent’s project.  Thomsas Moore would submit an \n\nDavid Otwell – H303124 \n25 \n \ninvoice, the respondent would pay it on a Saturday, and then the money would be divided \nup, based upon the actual work performed and the invoice submitted. \n(17) A worker performs more than de minimis services for more than one (1) person at \nthe same time, unless the persons or firms are part of the same service agreement:   \nThe  claimant  clearly worked for  other  entities in  the  same  general  time  frame, which \nincluded working a forty-hour week for the construction company.   \n(18)  A worker makes his or her services available to the general public on a regular \nand consistent basis:   \nHere, the claimant worked a forty-hour week for M & A Construction and was still working \nfor them at the time of the hearing and even drove the construction company’s trucks to \nthe job site.  The claimant was also working on another side job at or near the time of the \naccident.  The  claimant  is  found  to  have  regular  side  jobs  in  the  carpentry  trade,  after \nputting in a 40 week with M & A Construction. \n(19) A person for whom a service is performed retains the right to discharge the worker, \nand (20) A worker has the right to terminate the relationship with the person for whom a \nservice is performed at any time he or she wishes without incurring liability:  The final two \nfactors will be considered jointly.  Here it is found that the available evidence does not \nmake clear what the result would be in regard to liability, if the claimant terminated his \nwork for the respondent or if the respondent terminated the work of the claimant.  The \nclaimant  was  paid based  on  submitted  invoices and  ultimately the  result  of  the \ndetermination or the discharge of the worker would be based upon the determination of \nwhether the claimant was found to be an employee or an independent contractor. \n\nDavid Otwell – H303124 \n26 \n \nAfter evaluating all twenty factors of Ark. Code Ann 11-1-204, and reviewing the \napplicable case law, it is found that the degree of control is still a key determination, and \nin  the  present  matter, it  is  determined  that  the  evidence  overwhelmingly supports  the \nfinding that the claimant was in fact not an employee of the respondent or his electronic \nrepair  company, but  was  an  independent  contractor  or  possibly  even  an  employee  of \nThomas Moore, who submitted the invoices and divided up the proceeds.  It is clear the \nrespondent’s  business, computer  and electronic  repairs,  had  no connection  to  the \nconstruction business and that construction was clearly not part of the regular business \nof the respondent, who worked in a distinct profession or trade which required a totally \nseparate skill set.  The claimant admitted in his deposition that they were hired due to the \nfact, in referring to the respondent, “He wasn’t an expert and that’s why he hired us.”  The \ntext messages showed the respondent was contacted to pick up supplies for the project \nin town but often had to ask questions as to what to pick up.  Further, although some of \nthe  respondent’s  tools  were  used,  the  claimant  also  admitted  using  some  of  the \nconstruction  company’s tools, and went  on  to  state that  as  a  carpenter,  they  primarily \nused their own tools. The respondent had input as to the result, but clearly did not direct \nhow the work was to be done.   \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 \nas spelled out by the 20 factors of the Empower Independent Contractors Act and Ark. \nCode Ann. 11- 1- 204, and has failed to prove by a preponderance of the evidence that \nan employee/employer carrier relationship existed at the time of the claimant’s accident.  \n\nDavid Otwell – H303124 \n27 \n \nConsequently, all other issues are moot.  If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \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., CARRIER/TPA RESPONDENT OPINION ON REMAND FILED JULY 29, 2025 The original Hearing before Administrative Law Judge, James D. Kennedy, was held on the 18 ...","fetched_at":"2026-05-19T22:38:56.796Z","links":{"html":"/opinions/alj-H303124-2025-07-29","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/OTWELL_DAVID_H303124_20250729.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}