978-1285770178 Case Printout Case CPC-08-07 Part 2

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and control on the day he was injured.

First and foremost, Claimant argues that the Commission erroneously considered the course of dealing between

Claimant and Moore Enterprises. Claimant cites to this Court’s decision in Shriner v. Rausch, 141 Idaho 228, 108

Rausch, but had not previously performed work directly for Rausch. Id. The Court ultimately held that “[t]here is

substantial and competent evidence supporting the Commission’s determination that Shriner was an independent

contractor in his relationship with Rausch on the projects at issue. The relationship of Rausch and E & H on other

business dealings does not change the result in this case.” Id. at 232, 108 P.3d at 379.

Shriner does not stand for the proposition that the Commission cannot consider the course of dealings between

case and, therefore, the Court was referring to the relationship between the employer and a third party. Such a nota-

tion cannot be construed to stand for the proposition that the Court cannot consider the course of dealing between a

claimant and the employer.

Nonetheless, Claimant argues that regardless of his status before and after the accident, he was under William’s

direct supervision and control on the day he was injured. To support his position, Claimant argues that he was taking

2005, as an employee and not as an independent contractor. Additionally, Claimant argues that because it was his

first day on the job, there was no way for him to know which tires to load, or in which order to load them, without

William’s direction. He asserts that William was directing him to operate the jack that ultimately caused the injury

and, thus, William had the right to control his work on the day he was injured.

The Commission acknowledged that there was testimony from Claimant that William told Claimant which tires

though contradictory, does not amount to a showing that the Commission’s finding is not supported by substantial

and competent evidence.

2. Method of Payment

The next factor that the Court must analyze is the method of payment. The Commission found that the method

of payment is unclear in this case because Claimant was never actually paid for his work on May 17. However, the

Commission found that every entry in Moore Enterprises’ books for more than a year before and after the accident

demonstrates Claimant was always paid as a separate business for work he performed for Moore Enterprises.FN6 The

Commission also noted Moore Enterprises’ books showed that another employee was properly identified for tax

withholding even when that employee had earned as little as $200 in one year and, thus, if Claimant’s status as an

independent contractor was to have changed, it would have been reflected in Moore Enterprises’ books.

Claimant asserts that because the evidence did not clearly indicate the precise method of payment on the date of

the accident, the Commission should not have considered the course of dealing between the parties to determine the

usual method of payment. However, as noted previously, the Commission rightfully considered the course of deal-

ing between the parties. Although the Claimant may be correct that the course of dealing between the parties may

come and social security taxes are withheld from a person’s wages. Withholding is customary in an employer-

employee relationship.” Livingston, 128 Idaho at 69, 910 P.2d at 741. Thus, the Commission was well within its

discretion to look to Moore Enterprises’ tax returns and books when analyzing the method of payment factor. Wil-

liam, in his recorded statement, indicated that he did not report Claimant on his payroll and never withheld taxes

from the money that was paid to him. More specifically, the conversation between William and the investigator was

William: I just had him to pay his own taxes on that, be responsible for his own taxes on that.

Investigator: Okay

William: I mean I reported him as, as someone, whom I, whom I got to do a, a specific job for, he was paid by the

piece.

Additionally, there is not one single document in Moore Enterprises’ business records that would indicate

ployee. Therefore, the Commission’s finding that the method of payment factor strongly indicates Claimant was an

independent contractor on May 17 is supported by substantial and competent evidence.

Claimant argues that he should have been paid for the work he completed on May 17, but that he was not paid

independent contractor or an employee.FN8 Because there is substantial and competent evidence to support the

Commission’s findings, the findings will not be disturbed on appeal.

3. Furnishing Major Items of Equipment

The third factor for the Court to consider is which party was responsible for furnishing the major items of

equipment. The Commission found that the major item of equipment used in both Moore Enterprises’ and Claimant’s

was actually being used on the day of the accident. Claimant also asserts that the Commission erroneously found

that a regrooving machine was the major item of equipment used in Moore Enterprises’ business because it was not

used by either party on the day of the accident. Finally, Claimant contends, once again, that the Commission violat-

ed this Court‘s rule in Shriner by considering evidence related to the past business relationship between Claimant

and Moore Enterprises.FN9

sell their own tires. Claimant and William would then determine how much each had made out of the total sales, and

apportion the costs of the trip according to the percentage of the profits made. Thus, Claimant’s testimony supports

the Commission’s conclusion that the sales trips that Claimant and William typically took were joint ventures.

Additionally, at his deposition, Claimant testified that he would occasionally accompany William on sales trips,

or travel alone, to sell Moore Enterprises’ tires without being compensated. Claimant later changed his testimony

that the business relationship between Claimant and Moore Enterprises was that of an independent contractor and

employer. Finally, Claimant’s citation to Shriner and his argument that this Court cannot consider the course of deal–

ing between the parties fails for the reasons mentioned above.

4. Right to Terminate Employment Relationship at Will

The last factor to consider is the right to terminate the employment relationship at will and without liability. The

that changes in the weather could trigger the kind of severe sinus headaches he had been suffering from since the

accident, it was unreasonable for the Referee to base its credibility determination on the difference in his demeanor.

Next, with regard to substantive credibility, Claimant argues that the Referee misstated and misconstrued his

While Claimant may be correct that there may have been a medical explanation for his change in demeanor

from the first hearing to the second hearing, there is substantial and competent evidence in the record to support the

finding that Claimant’s testimony was inconsistent and, thus, he was not a credible witness. First and foremost,

Claimant, in his answers to various interrogatories verified under oath, claimed that after the accident, he “did not

resume work until 11/26/07,” and that “in 2006, and almost all of 2007, [he] could not work in any capacity.” How-

January of 2006, and obtained various other acting jobs up through October of 2007. Claimant also testified during

his deposition and in his verified answers to interrogatories that William had agreed to pay him $12.00 per hour for

his work, but later testified that William had agreed to pay him $350 per week, which equals $8.75 per hour for a

40-hour week. Also, when William filled out his First Report of Injury or Illness, he left blank the portion of the

form indicating the Claimant’s wage, which further supports the Commission’s conclusion that there was no agree-

finding, this Court affirms the Commission’s decision to deny Claimant workers‘ compensation.

D. Attorney Fees for the Proceedings Before the Commission

Claimant argues that if this Court finds that the Commission erred in denying him workers’ compensation, the

Commission abused its discretion by failing to award him attorney fees pursuant to Idaho Code section 72–804. Ida-

Claimant also requests attorney fees on appeal pursuant to Idaho Code section 72–804 and Idaho Appellate Rule

41, arguing that Surety refused to pay workers’ compensation benefits without reasonable grounds to do so. Because

we affirm the Commission‘s decision to deny workers’ compensation, Claimant is not entitled to attorney fees on

appeal.

IV.

unloading a boat trailer was not credible. In fact, the Commission specifically found that Claimant was in–

jured while loading a tire trailer for William. Thus, the witness’ testimony was thoroughly impeached, and

the issue of how Claimant was injured is not in question.

Idaho,2011.

Moore v. Moore

— P.3d —-, 2011 WL 310376 (Idaho)

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