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Wagner v. AGW Consultants5/24/2005
er/Insurer, on the ground that Turner was the real party in interest . The WCJ granted the motion to amend.
{75} Second, AGW filed a motion to dismiss, based on the contention that Turner, as sole trustee of the business trust, was not within the definition of a "worker" and therefore could not be counted as an employee. Thus, AGW argued, AGW had only two employees, Worker and McCabe, and the Act did not apply. The WCJ denied the motion, finding that Turner was "in the same shoes" as a corporate executive and therefore would be treated as an employee. In support of this decision, the WCJ cited NMSA 1978, ยง 52-1-7(E) (2003).
Formal Hearing
{76} After the formal hearing, the WCJ filed a notice of proposed decision, and all parties filed proposed findings and conclusions. The WCJ then entered a compensation order, which, in pertinent part, found as follows. Worker was employed by AGW, a business trust, and not by Turner individually. Turner was an employee of the business. Worker's first injury arose out of and in the course of his employment. The second injury, the fall at home, was incidental to the normal activities of daily living and did not constitute an independent intervening cause. Dr. Gehlert was an authorized health care provider because Worker initially directed medical care, Turner suggested Dr. Legant, and Dr. Legant referred Worker to Dr. Gehlert. Worker was entitled to TTD benefits for roughly one year. Worker reached MMI June 5, 2000, and thereafter had a scheduled injury with a twenty percent loss of use. In addition, the WCJ ordered AGW to pay Worker's reasonable and necessary medical expenses.
{77} We discuss the factual and procedural background relevant to the award of attorney fees when we address the issues concerning that award.
DISCUSSION
Worker 's Entitlement to Benefits
The WCJ Did Not Err In Determining That AGW Had Three Employees
{78} AGW contends that Turner, as the sole trustee of the business trust, was not an employee of AGW, relying on two arguments. First, AGW relies on authorities from other jurisdictions concerning the nature of a business trust. Second, AGW maintains that whether a person is an employee depends on whether that person is subject to the control of another. Consequently, AGW argues, because there is no evidence that Turner's decisions were supervised or controlled in any way by anyone but himself, the WCJ's finding that Turner was an employee of AGW is not supported by substantial evidence.
{79} We review de novo the application of the law to the facts. Hise v. City of Albuquerque, 2003-NMCA-015, 8, 133 N.M. 133, 61 P.3d 842. We apply whole record review to the factual determination of the WCJ. Herman v. Miners' Hosp., 111 N.M. 550, 552, 807 P.2d 734, 736 (1991). In applying whole record review, this Court reviews both favorable and unfavorable evidence to determine whether there is evidence that a reasonable mind could accept as adequate to support the conclusions reached by the fact finder. Levario v. Ysidro Villareal Labor Agency, 120 N.M. 734, 737, 906 P.2d 266, 269 (Ct. App. 1995).
{80} AGW relies on In re Hayes' Case, 204 N.E.2d 277, 278-79 (Mass. 1965), where the managing trustee of a business trust filed a claim for workers' compensation benefits after he was injured on the job. The Massachusetts Supreme Judicial Court held that a trustee of a business trust was not an employee of the trust and therefore was not entitled to bring compensation proceedings before the Industrial Accident Board. Id. at 280. However, under Massachusetts law, a business trust is not a legally separate entity from its trustees. Id. In this case, th
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