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OSMAN HOME IMP. v. INDUSTRIAL COM'N4/30/1998
Osman Home Improvement (Osman), United Staffing, and Credit General Insurance appeal an Industrial Commission (Commission) determination that Osman was the sole employer of Arnulfo Steven Sosa (Steven) when Steven suffered an employment-related injury . Osman argues that Steven's uncle, Enrique Sosa (Enrique), was also Steven's employer at the time of Steven's accident and that, because Enrique did not have workers' compensation coverage, the cost of Steven's workers' compensation should be shared by the Uninsured Employers' Fund. We affirm.
BACKGROUND
Osman is a roofing company owned by Mike Osman. In 1995, Osman contracted to install roofs on the buildings of a new apartment complex in Sandy. It then placed an advertisement for roofers to work on the project. Enrique responded to that ad, but did not submit a bid for the work. Instead, Enrique and Osman agreed that Osman would pay Enrique $14 for every 100-feet-square that Enrique completed. Enrique set his own hours and provided his own staple gun, compressor, saw, ladder and safety ropes. Osman, however, provided all the necessary roofing materials.
Although Mr. Osman is a licensed contractor familiar with Utah's requirement that contractors be licensed, he did not require that Enrique be licensed. In fact, Enrique has never held a Utah contractor's license.
A few days after he was hired, Enrique took Steven to meet Mr. Osman and asked if Steven could work as Enrique's assistant. Mr. Osman consented. It is customary in the roofing trade for assistant roofers to be compensated by sharing in the piece rate earned by the experienced roofer to whom
they are assigned. In this case, Enrique and Steven agreed Steven would receive $10 per hour, to be paid out of Enrique's piece rate.
Enrique and Steven began work on Osman's project on July 20, 1995. At least once, Mr. Osman saw Steven working and did not object. Steven was injured on July 22, 1995, when he slipped from the roof of a building in the project, injuring his feet and ankles.
A Compensation Hearing was held before an Industrial Commission Administrative Law Judge (ALJ). The ALJ concluded that Osman was Steven's "statutory employer," but that Enrique was Steven's "common law employer." Thus, the ALJ determined that both Osman and Enrique were liable for Steven's workers' compensation benefits.
Enrique then filed a Motion for Review by the Commission. The Commission issued an Order Granting Motion for Review, reversing the ALJ's ruling that Enrique was one of Steven's employers. The Commission concluded that Osman had sufficient control over both Enrique and Steven to negate the possibility that Enrique was Steven's employer. The Commission noted that Osman retained "unfettered control over all aspects of the project," that Osman had to authorize all individuals working on the project, and that Osman "could discharge any of the workers at any time." Furthermore, Osman paid Steven directly for his work. Finally, because it is customary in the roofing industry for both employees and independent contractors to provide their own tools, the fact that Enrique did so in this case was not determinative.
Osman filed a Petition for Writ of Review with this court.
ISSUE
In its Petition, Osman does not challenge the Commission's findings of fact or the determination that it is a statutory employer under Utah Code Ann. ยง 35-1-42(6)(a) (Supp. 1996). Osman argues only that the Commission erred in determining Enrique was not also Steven's employer at the time of Steven's accident.
STANDARD OF REVIEW
Historically, Utah appellate courts have
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