Glen M. Barney & Sons, Inc. v. Industrial Commission , 1980 Utah LEXIS 875 ( 1980 )

HALL, Justice:

Plaintiffs Barney and State Insurance Fund¹ seek to vacate the order of the Industrial Commission which awarded workmen’s compensation to defendant, Robert L. Jensen.

Jensen had previously been employed as a truck driver by Barney, having terminated his employment in order to pursue an enterprise of his own. He subsequently sought re-employment with Barney, but was informed that Barney had no work available. He was consequently referred to one Chris Patton, doing business as Western Express, who hired him to haul coal from Salina, Utah, to Page, Arizona. The truck he drove was owned by Patton and leased to Barney.

Jensen filed a claim for compensation alleging that he was injured as the result of an accident in the course and scope of his employment and further alleging that at the time of his injury he was an employee of both Patton and Barney. The claim was heard by an Administrative Law Judge who' determined liability on the part of both Patton and Barney. Thereafter, the Industrial Commission denied plaintiffs’ motion for review² and affirmed the order of the Administrative Law Judge.

The sole contention on appeal is that the evidence presented was insufficient to support the conclusion that Jensen was an employee of Barney. However, our review of the record in this matter reveals an even more basic problem.

The Industrial Commission, in its findings of fact and conclusions of law, concluded that Barney was an employer of Jensen. There are, however, no subordinate findings of fact to support that ultimate conclusion. Without proper subordinate findings, it is impossible for this Court to exercise its duty of determining whether the Commission applied the appropriate legal standards to findings adequately supported by the evidence.

What constitutes the employer-employee relationship is a matter of constant controversy. However, this Court has considered the evidentiary factors necessary to establish the relationship on numerous occasions.³ As was stated in Harry L. Young & Sons, Inc. v. Ashton :⁴

The main facts to be considered as bearing on the relationship here are: (1) whatever covenants or agreements exist concerning the right of direction and control over the employee, whether express or implied; (2) the right to hire and fire; (3) the method of payment, i. e., whether in wages or fees, as compared to payment for a complete job or project; and (4) the furnishing of the equipment.' [Citation omitted.]

In the instant case, the Industrial Commission made' no such findings to support its conclusion that Barney was an employer of Jensen. In the absence of appropriate findings of fact it is impossible for the Commission, and for this Court, to exercise its duty of applying the appropriate legal standards to findings adequately supported by the evidence.⁵

Clearly, it is not for this Court to review the evidence for the purpose of making its own findings as will either support or reverse the determination made by the Commission.

We therefore remand this case to the Commission as fact finder for the purpose óf making specific findings of fact with respect to the issue of employment of Jensen by Barney.

WILKINS, and STEWART, JJ., concur.

1 . The compensation carrier of Barney.

2 . Provided for by U.C.A., 1953, 35-1-82.53.

3 . See Harry L. Young & Sons, Inc. v. Ashton, Utah, 538 P.2d 316 (1975) and the cases cited therein.

4 . Id.

5 .That the standard to be applied to the jurisdictional question of employment is that of “preponderance of the evidence,” see Luker Sand & Gravel Co. v. Industrial Commission, 82 Utah 188, 23 P.2d 225 (1933), cited and followed in Parkinson v. Industrial Commission, 110 Utah 309, 172 P.2d 136 (1946); see also, Christean v. Industrial Commission, 113 Utah 451, 196 P.2d 502 (1948) and Sommerville v. Industrial Commission, 113 Utah 504, 196 P.2d 718 (1948).