Mucenski v. Red Movers & Van Lines, Inc.

Arbitrator orders non-employee to reimburse respondent $4,500

This case was tried by Bill Brewster. The central issue in the case was whether the petitioner was an employee or an independent contractor. The petitioner, an automotive car painter was hired by the respondent company, who was in the business of moving and storage, to paint and perform body work on several of the company's trucks. The company's owner testified that he became aware of the petitioner's painting skills by word of mouth. Although the opportunity for full-time employment might have existed following completion of the painting jobs, no promise of future employment was given. The petitioner did not fill out a job application, was never given a written employment contract, had no taxes withheld or social security and was given no health insurance, 401K or any other benefits. He was never officially placed on payroll.

The respondent company's owner showed the petitioner which trucks to paint but never attempted to direct or control the manner in which said trucks were painted, except for the color. From time to time the owner would check the petitioner's work to see how he was doing but never offered any suggestions or criticisms. The petitioner provided several tools including electric drills, spray and primer guns, grinders, wrenches, screwdrivers, plier sockets and hammers and also supplied his own car to get to and from the job site. The company allowed him to lock his tools on the premises overnight. The company also provided several tools including air compressors, lights, ladders and an air hose. The petitioner ordered materials from a paint store and the company paid for same.

The petitioner was injured when a 1,000 pound elevator door fell on him as he was helping to unload a truck in the warehouse. Petitioner testified that he was asked to help unload the truck, but two witnesses from the respondent company refuted this allegation insisting that the petitioner volunteered and was hired solely to paint trucks and not perform loading and unloading work. The petitioner sustained a partial thickness tear of the supraspinatus tendon, impingement syndrome of the left shoulder, aggravation of four bulging discs, fractured ribs from C7-T1 and a collapsed lung and was recommended for left shoulder arthroscopy, labral debridement, subacromial decompression and distal clavicle excision. Petitioner's settlement demand prior to trial was 80% loss of use of the man as a whole ($164,000.00), 66 and 6/7ths weeks of TTD benefits ($30,456.93), $75,000.00 in unpaid medical bills and future medical including the cost of recommended surgeries.

In finding that an employer/employee relationship did not exist, the Arbitrator concluded that the respondent did not control the manner in which the petitioner performed his painting work, that the petitioner ordered his own materials, supplied several tools, the respondent did not withhold taxes or social security and that while the nature of the respondent's work was moving and storage the petitioner, was hired to paint trucks. The Arbitrator emphasized that the respondent company's owner left the manner of work up to petitioner, petitioner was responsible for cleaning up his work area daily, was allowed to order materials himself from the paint store and that no suggestions, hints or criticism were ever given to petitioner regarding his painting work.

Following the accident, in good faith, the respondent company's owner paid the petitioner $500.00 salary between February 16, 2007, and April 14, 2007, totaling $4,500.00. Noting this payment, the Arbitrator also ordered the petitioner to reimburse respondent the sum of $4,500.00, finding that he was an independent contractor and not an employee.