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VBS Construction v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division, Department E

August 8, 2013

VBS CONSTRUCTION, Petitioner Employer,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SECURA INSURANCE, Petitioner Carrier, DAVID MARQUEZ, Respondent Employee, BG ROOFING, Respondent Uninsured Employer, SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent Party in Interest.

Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure

Special Action – Industrial Commission ICA Claim No. 20110-960381 Carrier Claim No. W0022046 Administrative Law Judge Robert F. Retzer

Jardine, Baker, Hickman & Houston, PLLC By K. Casey Kurth Attorneys for Petitioners Employer and Carrier

Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent

Jerome, Gibson, Stewart, Friedman, Stevenson, Engle & Runbeck, P.C. By Darryl Engle Attorneys for Respondent Employee

Special Fund Division/No Insurance Section The Industrial Commission of Arizona By Kathyrn E. Harris Attorney for Respondent Party in Interest

MEMORANDUM DECISION

JOHN C. GEMMILL, Judge

¶1 VBS Construction ("VBS") and Secura Insurance ("Secura") seek special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review for a compensable claim. One issue is presented on appeal: whether the administrative law judge ("ALJ") erred by finding that David Marquez ("Claimant") was an employee of BG Roofing and a statutory employee of VBS at the time of his January 14, 2011 injury. Because the record reasonably supports the ALJ's finding that Claimant was an employee of both BG Roofing and VBS at the time of his injury, we affirm the award.[1]

PROCEDURAL AND FACTUAL HISTORY

¶2 On January 14, 2011, Claimant fell off the roof of a house on Rose Lane in Scottsdale and sustained injuries to his head, ribs, and right hand. He filed a workers' compensation claim against the petitioner employer, VBS. The petitioner carrier, Secura, denied the claim for benefits, stating the "claimant is not an employee of our insured, VBS Construction." Claimant timely protested and requested an ICA hearing. The ICA received testimony from Claimant, a coworker, the Rose Lane homeowner, two VBS employees, and two individuals associated with BG Roofing.

¶3 Claimant testified that he and Oscar Sanchez Torres had been friends since their youth in Mexico. They helped each other obtain work and also worked together on occasion. On January 8, 2011, Sanchez Torres was driving around looking for work when he saw the BG Roofing crew working. He stopped and asked a man who called himself Alfonso Gonzalez if he had any work available. Gonzalez called Sanchez Torres a day or two later and told him that he had a job for him removing roofing shingles.

¶4 Claimant testified that on January 13, 2011, he, Sanchez Torres, and two friends, Jesus Valencia, and Rafael Verdugo, met Gonzalez at a home near Shea Boulevard and 107th Street. Sanchez Torres and Gonzalez agreed that the four friends would be paid $600 in cash for tearing the roofing shingles off that house. Claimant and Sanchez Torres had their own tools and equipment for the job. They previously had torn off four or five other roofs so they also knew how to perform the work.

¶5 Claimant further testified that both Gonzalez's truck and trailer displayed VBS signs, so he assumed that they were working for VBS when Gonzalez hired them to tear off the old roof. Gonzalez left a VBS trailer with them for the old roofing shingles and trash. He returned to the job site later that day to check on their work. According to Sanchez Torres, Gonzalez told them how he wanted the work done, he could hire and fire them, and they would only be paid if they completed the job. Because Gonzalez was satisfied with their work on January 13th, he offered them another job at another house for January 14th.

¶6 On January 14, 2011, Claimant arrived at the Rose Lane house with Valencia and Verdugo. Claimant testified that he put up a ladder and went up onto the roof to see how many layers of old shingles there were. He stated that additional layers were harder to tear off and affected the price for tearing off the roof. Claimant fell from the roof before any work was performed. Gonzalez paid them for ...


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