STONE v. ALL SEASONS PAINTING AND DECORATING, No. 018409-08 (Jul. 14,2011)

No. 018409-08.Commonwealth of Massachusetts Department of Industrial Accidents.
July 14, 2011.

REVIEWING BOARD DECISION

(Judges Koziol, Fabricant and Levine)

The case was heard by Administrative Judge Chivers.

APPEARANCES

Katherine Lamondia-Wrinkle, Esq., for the employee

Garrett Harris, Esq., for the insurer

KOZIOL, J.

The claimant, William Stone, appeals from a decision denying and dismissing his claim on the ground he was not an employee of All Seasons Painting and Decorating, or its subcontractor, Robert Beaumier.[1] We affirm the decision insofar as it determined Beaumier was an independent subcontractor of All Seasons Painting and Decorating; however, we vacate the judge’s determination that the claimant and Beaumier were partners. We recommit the case for a hearing de novo concerning the nature of the relationship between Beaumier and Stone, and, if necessary, addressing the applicability of G.L. c. 152, § 18, [2] as well as the other issues raised by the parties.

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William Stone, forty-six years old at the time of hearing, alleges he was injured on May 29, 2008, when he fell from a ladder while working as an employee on a residential painting job (the Cantor job) for All Seasons Painting and Decorating, which was owned and operated by Douglas Guyette. (Dec. 2; Employee br. 2-3.) Alternatively, he argues he was an employee of Robert Beaumier, whom the judge found to be a subcontractor of All Seasons Painting.[3]
(Employee br. 13.)

The only issues addressed by the judge in his decision were those relating to the claimant’s alleged employment status. (Dec. 2-5.) The testimony on this issue was conflicting. (Dec. 5.) The claimant testified he was hired directly by Guyette to paint a house owned by Gerald Cantor.[4] The judge rejected the claimant’s testimony on this issue, and credited that of Guyette and Beaumier.[5]
(Dec. 4.) Both Guyette and Beaumier testified Guyette subcontracted the Cantor

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job to Beaumier for $2,080, and that Beaumier then brought the claimant on the job. (Dec. 2-3.) The judge further found that Guyette was not happy that Beaumier was using the claimant on the Cantor job, because Guyette had employed the claimant in the past, and had fired him because he was unreliable. Nonetheless, the claimant began the job and he alleged he was injured on the second day of work. He did not report to work for the next two days, after which Beaumier told him he was no longer needed. (Dec. 3.)

The judge found that, “Mr. Stone was a partner of Mr. Beauvier [sic], and Mr. Beauvier [sic] was an independent contractor in relation to Mr. Guyette.” (Dec. 4.) In support of these conclusions, the judge made the following subsidiary findings:

As to the independent contractor status of Mr. Beauvier [sic] in relation to Mr. Guyette, I find most persuasive the fact that Mr. Guyette paid Mr. Beauvier [sic] a fixed amount to perform the terms of the contract. Both Mr. Guyette and Mr. Beauvier [sic] testified they viewed the relationship as one of an independent contractor. Mr. Beauvier [sic] was not paid by the hour, or told specifically when to work (other than within the general timeframes of Mr. Guyette’s contract with the homeowner). He generally provided his own equipment. I also find it significant that Mr. Beauvier [sic] brought on Mr. Stone to help. Mr. Guyette strongly objected to this. But Mr. Beauvier [sic] brought him on anyway, further persuading me that Mr. Beauvier [sic] indeed was acting as an independent contractor in relation to Mr. Guyette.
The business relationship between Mr. Beauvier [sic] and Mr. Stone suggests a partnership rather than a hire. Previous times when they had worked together, they had split the money from a job equally. While Mr. Guyette [sic][6] got this job, Mr. Stone had arranged for other jobs the two had shared. Likewise, the terms of payment for this job were straightforward — a 50/50 split of the amount in exchange for a sharing of the work load. In fact Mr. Stone testifies that he worked the first day of the job alone — again suggesting a partnership rather than one of an employer/employee relationship.

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(Dec. 4.) Accordingly, he denied and dismissed the claim, without reaching any other issues in dispute. (Dec. 5.)

On appeal, the claimant raises two issues. He first argues that the judge made insufficient findings to support both his conclusion that Beaumier was an independent contractor on the Cantor job for All Seasons Painting and Decorating, and, implicitly, that the claimant was not a direct employee of All Seasons Painting. We disagree. The determination of whether a person is an employee or an independent contractor is essentially a question of fact.Madariaga’s Case, 19 Mass. App. Ct. 477, 481 (1985). The factors to be considered in making this determination are well-established:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

MacTavish v. O’Connor Lumber Co., 6 Mass. Workers’ Comp. Rep. 174, 177 (1992) (citations omitted); Dolbeare v.Merchants Home Delivery Service, Inc., 9 Mass. Workers’ Comp. Rep. 812, 816-817 (1995); Barrett v. D PContr./R.P. Valois Contr., 15 Mass. Workers’ Comp. Rep. 94, 97-98 (2001). Foremost among these is the right to direct and control the individual in the performance of his

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work. Fleming v. Shaheen Bros., Inc., 71 Mass. Ap. Ct. 233, 227 (2008); MacTavish, supra;Dolbeare, supra at 815; Barrett,supra at 98.

In holding that Beaumier was an independent contractor, the judge found that All Seasons Painting, through Guyette, hired Beaumier to perform the work specified in the painting contract Guyette negotiated with the homeowner. Guyette did not require Beaumier to work at specific times, other than within the general time frames of the contract with the homeowner. Guyette agreed to pay Beaumier a fixed amount for the job, rather than an hourly wage. Beaumier generally provided his own equipment, and Beaumier, rather than Guyette, hired the claimant to work with him, over Guyette’s objections. Finally, both Guyette and Beaumier viewed Beaumier as an independent contractor. (Dec. 4.) Taken together, these findings adequately support the conclusion that Guyette did not exercise sufficient direction and control over Beaumier to confer on him the status of an employee.

In addition, the judge’s findings offer a sufficient basis for his implicit conclusion that the claimant was not a direct employee of All Seasons Painting. Of particular relevance are the findings that Beaumier, not Guyette, hired the claimant, over Guyette’s objections, (Dec. 3, 4); that Guyette did not give the job to both Beaumier and the claimant, (Dec. 5); and that Beaumier, in effect, fired the claimant.[7] (Dec. 3).

Alternatively, the claimant argues the judge’s findings were inadequate to establish that he and Beaumier were partners on the job at which he was allegedly injured.[8] We agree. Factors relevant to determining the existence of a partnership,

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include: “(1) an agreement by the parties manifesting their intention to associate in a partnership, (2) a sharing by the parties of profits and losses, and (3) participation by the parties in the control or management of the enterprise.” Fenton v.Bryan, 33 Mass. App. Ct. 688, 691 (1992); see also G.L. c. 108A, § 7, “Rules for determining the existence of partnership.” The judge here cites no evidence of an agreement to form a partnership or of participation by the claimant in the management or control of the painting job. The finding that the claimant and Beaumier were to equally split the contract amount is alone insufficient evidence of a partnership. See c. 108A, § 7(3)(“The sharing of gross returns does not of itself establish a partnership. . . .”) Moreover, the judge’s findings that Guyette contracted with Beaumier (not the claimant) to do the painting job, and that Beaumier hired and then fired the claimant, run counter to a finding that the two were partners.[9] SeeMadariaga’s Case, supra at 481(testimony that alleged employer could terminate arrangement with claimant at any time was strong evidence he had ultimate control over claimant and that claimant was, in fact, his

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employee).[10] The judge’s findings of fact and the remaining evidence in the record is insufficient to establish the existence of a partnership between Stone and Beaumier as a matter of law. Therefore, we vacate the finding that the claimant and Beaumier were partners.

In addition, the judge failed to address the majority of theMacTavish factors relevant to determining whether the claimant was an employee of Beaumier or an independent contractor. Although there was testimony on factors relevant to this distinction, the judge made few pertinent findings. For example, discussion of the claimant’s past work history is limited to mentioning he had previously worked for Guyette, who had fired him, and that he had arranged for other jobs he and Beaumier had shared. There is no discussion of the details of his previous employment with Guyette or Beaumier, or of his prior work history in general, although Guyette, Beaumier and the claimant testified about these issues. Similarly, the judge did not make findings regarding to what extent, if any, the claimant provided his own equipment, or to what extent Beaumier controlled the claimant’s work, other than finding that Beaumier told Stone “he wasn’t needed anymore,” (Dec. 3), despite the existence of evidence on these matters. The factor on which the judge relied most heavily — that the claimant and Beaumier were to

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split the contract price — is not controlling in determining employee status, Fleming, supra at 227, citingMcDermott’s Case, 283 Mass. 74, 76 (1933) (method of payment may be important, but is not controlling in determining employee status). The scarcity of relevant factual findings on whether the claimant was an employee of Beaumier’s or an independent contractor makes recommittal necessary because we cannot determine whether “correct rules of law have been applied to facts that could be properly found.” Praetz v.Factory Mut. Eng’g Research, 7 Mass. Workers’ Comp. Rep. 45, 47 (1993); Ballard’s Case, 13 Mass. App. Ct. 1068 (1982) (specific and definite findings are required to enable proper appellate review).

We affirm so much of the decision as concludes Beaumier was an independent contractor of All Seasons Painting and Decorating, and that the claimant was not a direct employee of All Seasons Painting. Additionally, we vacate so much of the decision as concludes the claimant and Beaumier were partners. Accordingly, we transfer the case to the senior judge for reassignment to another administrative judge for hearing de novo regarding the nature of the relationship between the claimant and Beaumier.[11] If the judge determines the claimant was Beaumier’s employee, then the judge must perform an analysis regarding the applicability of § 18, and address any remaining issues raised by the parties.

So ordered.

_______________________________ Catherine Watson Koziol Administrative Law Judge

_______________________________ Bernard W. Fabricant Administrative Law Judge

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________________________________ Frederick E. Levine Administrative Law Judge

Filed: July 14, 2011

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