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Wagner v. AGW Consultants5/24/2005
e parties have assumed that AGW is a separate and distinct entity.
{81} AGW also relies on federal cases holding that the trustees of a business trust are not employees within the meaning of that term as used in the Social Security Act. United States v. Griswold, 124 F.2d 599 (1st Cir. 1941); Loring v. United States, 80 F. Supp. 781 (D. Mass. 1948). Under federal law "the most important factor has been the existence of a right in some one else, either an individual or a collective entity, to control the employee in the performance of his work." Loring, 80 F. Supp. at 784; see also Griswold, 124 F.2d at 601 (explaining that employees are subject to supervision and control pursuant to the Social Security Act). However, New Mexico uses a different standard to determine whether an individual is a "worker" within the meaning of the Act.
{82} By statute, the provisions of the Act apply to employers of three or more workers. Section 52-1-6(A). The parties do not dispute that AGW is a separate legal entity and that it was an employer within the meaning of the Act. The Act defines a "worker" as "any person who has entered into the employment of or works under contract of service or apprenticeship with an employer . . . . The term `worker' shall include `employee' and shall include the singular and plural of both sexes." NMSA 1978, ยง 52-1-16(A) (1989).
{83} In determining whether a given individual is a worker , the label that the parties have attached to their relationship is not controlling. Yerbich v. Heald, 89 N.M. 67, 69, 547 P.2d 72, 74 (Ct. App. 1976). Instead, the critical question is whether the individual has a contract of hire with the employer for wages or something of value that is like wages. See Trembath v. Riggs, 100 N.M. 615, 619, 673 P.2d 1348, 1352 (Ct. App. 1983), overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 105 N.M. 503, 734 P.2d 743 (1987). Cf. Joyce v. Pecos Benedictine Monastery, 119 N.M. 764, 766, 895 P.2d 286, 288 (Ct. App. 1995) (stating that a religious novice is not an employee, largely because the novice does not exchange her service for wages); Jelso v. World Balloon Corp., 97 N.M. 164, 168, 637 P.2d 846, 850 (Ct. App. 1981) (explaining that an unpaid volunteer is not a worker or employee). In addition, the phrase "contract for hire" has been construed to require a mutuality of assent as well as an exchange of labor for wages or something similar. Joyce, 119 N.M. at 767, 895 P.2d at 289.
{84} In this case, the WCJ found that the business trust was created by a contract between Turner and his wife, Regina. Under the contract and supporting documents, Turner is the sole trustee. Trustees are paid reasonable compensation for their services. The contract specifically provides that "Trustee(s) . . . are like employees and not personally liable when dealing with the Trust properties or matters." Turner signed a document accepting his appointment as trustee. In short, there is substantial evidence in the record supporting the WCJ's finding that Turner is an employee of AGW under the statutory definition of "worker" as interpreted by cases of this Court. The fact that Turner is not subject to the control of another in making decisions concerning AGW is irrelevant.
Worker 's Accident Arose out of and Was in the Course of Employment
{85} All the remaining issues concerning Worker's entitlement to benefits are challenges to the sufficiency of the evidence. In reviewing a claim for sufficiency of the evidence, we review the record as a whole. Lucero v. City of Albuquerque, 2002-NMCA-034, 14, 132 N.M. 1, 43 P.3d 352. "In applying whole record review, this Court reviews both favorable and unfavorable evidence to det
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