Paullas v. Andersen Excavating ( 1987 )

SHEPARD, Chief Justice,

dissenting.

I cannot agree with the majority’s conclusion reversing the Commission’s decision.

The standard of review of Industrial Commission orders by this Court is limited. I.C. § 72-732 provides in pertinent part:

Disposition of appeal — Jurisdiction of supreme court. — Upon hearing the court may affirm or set aside such order or award, or may set it aside only upon any of the following grounds:

(1) The commission’s findings of fact are not based on any substantial competent evidence;

Clearly, this Court is not to substitute its views of the facts for the findings made by the Industrial Commission if those findings are supported by substantial evidence. Snyder v. Burl C. Lange, Inc., 109 Idaho 167, 706 P.2d 56 (1985); Johnson v. Amalgamated Sugar Company, 108 Idaho 765, 702 P.2d 803 (1985); Lopez v. Amalgamated Sugar Company, 107 Idaho 590, 691 P.2d 1205 (1984); Bell v. Clear Springs Trout Company, 107 Idaho 568, 691 P.2d 1183 (1984); Nelson v. Pumnea, 106 Idaho 48, 675 P.2d 27 (1983); Hayes v. Amalgamated Sugar Company, 104 Idaho 279, 658 P.2d 950 (1983); Troutner v. Traffic Control Company, 97 Idaho 525, 547 P.2d 1130 (1976); Dean v. Dravo Corporation, 97 Idaho 158, 540 P.2d 1337 (1975); Gradwohl v. J.R. Simplot Company, 96 Idaho 655, 534 P.2d 775 (1975); Levesque v. Hi-Boy Meats, Inc., 95 Idaho 808, 520 P.2d 549 (1974).

In my view, the majority, in disregard of the Commission’s findings, is making its own findings as they interpret the facts. The majority has clearly exceeded this Court’s boundary of review.

The Commission found that:

[T]he presence of claimant, Theodore Paullas at the Andersen construction site on December 20,1984 was in his capacity as employee and corporate officer of Paullas Enterprises and not as an employee of Andersen Excavating. The services performed by Paullas for Andersen on December 20, were in the capacity of an independent contractor engaged to haul gravel to the worksite and to back-fill the sewer trench and perform related work. This was the type of work commonly performed by Paullas Enterprises, either through its corporate president or other employees. The services were often performed for other employers and, on a number of occasions, for Andersen. Paullas did not become Andersen’s employee by performing the services at Andersen's worksite on December 20, 1984.

This Court in Pinson v. Minidoka Highway District, 61 Idaho 731, 737, 106 P.2d 1020, 1022 (1940), laid out the test in establishing an employer-employee relationship.

The general test is the right to control and direct the activities of the employee, or the power to control the details of the work to be performed and to determine how it shall be done, and whether it shall stop or continue, that gives rise to the relationship of employer and employee, and where the employee comes under the direction and control of the person to whom his services have been furnished, the latter becomes his temporary employer, and liable for compensation. (71 C.J., pp. 405, 406; Tarr v. Hecla Coal & Coke Co., 265 Pa. 519, 109 Atl. 224; Sgattone v. Mullholland & Gotwals, supra [290 Pa. 341, 138 A. 855]; Allen-Garcia Co. v. Industrial Com., supra [334 Ill. 390, 166 N.E. 78]; Parsons v. M.J. Daly & Sons, 114 Conn. 143, 158 Atl. 216; Gates’ Case, 297 Mass. 178, 8 N.E.(2d) 12; Northern Trust Co. v. Industrial Com., 231 Wis. 133, 285 N.W. 339; Modlin v. Twin Falls Canal Co., 49 Ida. 199, 286 Pac. 612; Palmer v. J.A. Terteling & Sons, 52 Ida. 170, 16 Pac.(2d) 221; Larson v. Independent School Dist., 53 Ida. 49, 22 Pac.(2d) 299; Becker v. Industrial Acc. Com., 212 Cal. 526, 298 Pac. 979; Altherhold [Atherholdt] v. William Stoddart Co., supra [286 Pa. 278, 133 A. 504]; Lecker v. Valentine, 286 Pa. 418, [133] 138 Atl. 792; Byrne v. Henry A. Hitner’s Sons Co., 290 Pa. 225, 138 Atl. 826, 58 A.L.R. 865; Persing v. Citizens’ Traction Co. 294 Pa. 230, 144 Atl. 97; Robson v. Martin, 291 Pa. 426, 140 Atl. 339; Singer Mfg. Co. v. Rahn, 132 U.S. 518, at p. 523, 10 Sup.Ct. 175 [176], 33 L.ed. 440; Cayll v. Industrial Com., 172 Wis. 554, 178 N.W. 771.)

Further, in Ledesma v. Bergeson, 99 Idaho 555, 585 P.2d 965 (1978), this Court held that the issue of whether an employer-.employee or principal-independent contractor relationship exists, is to be determined from all the facts and circumstances established by the evidence. See also Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960); Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356 (1923).

The Commission in its findings of fact, set forth the following factors in making its determination: Andersen did not control Paullas’ activities at the time of injury; Andersen had left the job site at the time of the accident; Paullas was injured while placing bedding material under the pipe in the sewer trench at his own discretion; Andersen and Paullas had a long-standing relationship whereby they would work for each other as needed; Paullas was working with Andersen under this standard arrangement at the time of injury; Paullas was employed by his own corporation at this time.

These factors clearly support the Commission’s finding that Paullas was not an employee of Andersen Excavating. The Industrial Commission, as created by the Idaho legislature, is the designated authority to weigh the evidence and determine the credibility of witnesses. See Hayes v. Amalgamated Sugar Company, supra; Murray v. Hecla Mining Co., 98 Idaho 688, 571 P.2d 334 (1977); Gradwohl v. J.R. Simplot Co., supra; Earl v. Swift & Company, 93 Idaho 546, 467 P.2d 589 (1970); Duerock v. Acarregui, 87 Idaho 24, 390 P.2d 55 (1964).

Thus, I can only conclude that the Commission was acting within its province and should be affirmed.

BAKES, J. concurs.