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No. 137987
| James A. Loos, Jr., |
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Daryl C. Royal |
Plaintiff-Appellee, |
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| v |
(Appeal from Ct of Appeals) |
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(Workers' Comp Appellate Comm) |
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| J.B. Installed Sales, Inc., a/k/a J.B. Supply and |
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Gerald M. Marcinkoski |
| Accident Fund Insurance Company of America, |
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Defendants-Appellants, |
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| Robinson Roofing, |
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Defendant-Appellee. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief in Opposition to Application for Leave to Appeal>>
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Background
James Loos sought worker’s compensation benefits for injuries he sustained in 2003 when he fell off a roof where he was working. At the time, Loos alleged, he was employed by Robinson Roofing, an independent contractor which had contracted with J. B. Installed Sales, Inc., to perform the roof work. William Robinson, owner of Robinson Roofing, had signed an independent contractor agreement with J.B. Installed Sales in which he stated that he did not have any employees. If he did hire employees, the agreement stated, Robinson would notify J.B. Installed Sales and present an insurance certificate showing that any employees were properly covered by a worker’s compensation insurance policy before putting the crew on the job. Robinson never advised J.B. Installed Sales that Robinson Roofing had any employees and never provided any proof of insurance. Robinson paid Loos for his work at J.B. Installed Sales’ projects by the job, in cash and with no taxes or deductions taken out. Robinson reported Loos’ earnings to the IRS on Form 1099 as non-employee compensation.
Loos claimed that he was entitled to worker’s compensation benefits from J.B. Installed Sales under the Worker’s Disability Compensation Act. MCL 418.171 permits an employee of an uninsured employer to claim benefits directly from the person or entity for whom the uninsured employer was performing services at the time of the employee’s injury. MCL 418.161(1)(n) defines “employee” in part as “[e]very person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury, if the person in relation to this service does not maintain a separate business, does not hold himself or herself out to and render service to the public, and is not an employer subject to this act.” Loos testified that he did not hold himself out to the public to do roofing business, did not maintain a separate business and did not have any employees, although he admitted that he considered himself “somewhat” self-employed. The defendants introduced William Robinson’s signed statement that he did not have any employees, together with Loos’ 2003 income tax records showing that Loos received IRS non-employee compensation forms 1099 from Robinson Roofing and another roofing company, but received W-2 employee compensation forms from the other two roofers for whom he worked in 2003. In addition, the defendants provided Loos’ Social Security records, which did not reflect any earnings at Robinson Roofing, and hospital records indicating that Loos was self-employed. The worker’s compensation magistrate denied benefits, finding that Loos was not a direct employee of J.B. Installed Sales or of Robinson Roofing. The magistrate considered the IRS records to be the most persuasive evidence, and also cited the Social Security and hospital records. Loos appealed to the Workers’ Compensation Appellate Commission, which reversed. The WCAC stated that, on the issue of whether Loos was Robinson’s employee, the only competent evidence was Loos’ testimony denying that he was an employer, had any employees, or maintained a separate business. The WCAC acknowledged the evidence that the magistrate had relied on, which it stated was “not irrelevant,” but concluded that the record supported only one conclusion, that Loos was an employee of Robinson Roofing. The Court of Appeals affirmed the WCAC in an unpublished per curiam opinion. The court held that the magistrate’s reliance on Loos’ tax forms was improper, and that the WCAC properly concluded that the magistrate’s analysis was legally flawed. The defendants appeal.
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