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Rocha v. Keka Construction3/31/2005
Date Submitted: December 27, 2004
Dear Counsel
This is my decision on Osney Rocha's appeal of the Industrial Accident Board's decision that he was an independent subcontractor and, as such, not entitled to workmen's compensation benefits. I have reversed and remanded the Board's decision for further proceedings consistent with this opinion.
STATEMENT OF THE CASE
Osney Rocha ("Mr. Rocha") is a construction worker. Keka Construction, Inc. ("Keka") is in the home construction business. Keka hired Mr. Rocha to repair homes that it had built. Mr. Rocha fell from a ladder and injured his knee at one of Keka's sites several months after he was hired. Mr. Rocha filed a petition with the Industrial Accident Board (the "Board") seeking workmen's compensation benefits, claiming that he was entitled to benefits as an employee.
Keka alleges that Mr. Rocha was an independent contractor and not eligible to receive those benefits. The Board held a hearing to determine whether Mr. Rocha was an employee or an independent contractor.
A. The Board Hearing
Five witnesses testified at the Board hearing: Mr. Rocha, his wife, Regina Rocha ("Mrs. Rocha"), Keller Camarco ("Mr. Camarco"), the owner and president of Keka, his wife, Alejandro Camarco ("Mrs. Camarco"), and Brian Smith ("Mr. Smith"), a subcontractor for Keka.
Mr. Rocha testified as follows: He was hired by Mr. Camarco as an employee, was paid $900 per week, and was to receive health insurance after two months of employment. However, he never received health insurance. His working hours were from 7:00 a.m. to 4:30 p.m. in the winter and from 7:00 a.m. to 5:30 p.m. in the summer. He only worked for Keka. When he finished a job he would report to Mr. Camarco and would be told what to do next. Mr. Camarco was not always at the site where Mr. Rocha was working because he also supervised other sites. A supervisor from Gemcraft, which hired Keka to build homes, would occasionally tell him what to repair. The ladder he fell off of and the tools he used, except for a belt, a hammer and a measuring tape, were Keka's. Mr Rocha, who has not worked since the accident, never quit and was not fired. He also did not contact Keka to say he would not be returning to work. He stated that Mr. Camarco was aware of the accident and there was no need to tell him he would not be returning to work.
Mr. Rocha was paid by checks made payable to "Marcello Silva" or to "Marcello B. DaSilva," but he does not know why. In one instance he cashed a check for $8,000, took his $900 in pay and the 2% check-cashing fee, and gave the rest of the cash to Mr. Camarco, who was to distribute it to the other workers. He was able to cash these checks at the check cashing store even though they were not payable to him because the store always cashed Keka's checks. He did not know who "Silva" was and he did not give a social security card and certificate of insurance in "Silva's" name to Keka. Mrs. Rocha corroborated much of her husband's testimony, particularly the testimony regarding "Silva."
Brian Smith testified as follows: He worked for Keka during the time Mr. Rocha was there. Indeed, they worked together "punching out" and "setting windows" for a couple of days. He considered himself to be an independent contractor. He was not supervised, but was told what to do by a Keka supervisor. He used his own tools, except for a nail compressor, and he was paid in cash. He was hired by Mr. Camarco and when he found a better job he left Keka. All the workers used Keka's air compressors, but they had their own tools. Mr. Rocha had a tool bag, a saw, and an extension cord.
Mrs. C
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