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Lister v. Industrial Com.

OPINION FILED NOVEMBER 6, 1986.

GEORGE LISTER, D/B/A BLACKHAWK IMPROVEMENT COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (HUBERT P. DELOOSE, APPELLEE). — HUBERT P. DELOOSE, APPELLEE,

v.

THE INDUSTRIAL COMMISSION ET AL. (GEORGE LISTER, D/B/A BLACKHAWK IMPROVEMENT COMPANY, APPELLANT).



Appeal from the Circuit Court of Rock Island County; the Hon. Joseph F. Beatty, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Claimant, Hubert DeLoose, filed an application for adjustment of claim under the Worker's Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for personal injuries which allegedly arose out of and in the course of his employment with respondent, George Lister, d/b/a Blackhawk Improvement Co. After a hearing conducted on September 15, 1982, the arbitrator awarded the claimant permanent total disability compensation of $114.08 per week for the remainder of his life (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(f)) and $165,610.82 in reasonable and necessary medical expenses (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)). On review the Industrial Commission affirmed the decision of the arbitrator. The circuit court confirmed the decision of the Industrial Commission and awarded petitioner an additional $49,608.22 in medical expenses. The respondent has appealed to this court pursuant to Supreme Court Rule 22(g) (103 Ill.2d R. 22(g)). We note that although this cause has been stylized as an appeal by respondent and a cross-appeal by claimant, the only party raising an issue on appeal is respondent.

Respondent's only contention on appeal is that the Industrial Commission's finding that claimant was an employee of respondent rather than an independent contractor is contrary to the manifest weight of the evidence.

The record indicates that, beginning in 1977, claimant, an aluminum-siding applicator, worked on several siding jobs obtained by respondent, a home-improvement contractor. On October 28, 1977, claimant fell from a ladder while applying siding on one of these jobs. Claimant sustained extensive personal injuries from this fall which rendered him paraplegic. The following evidence is relevant in determining the fundamental issue of whether claimant was an employee of respondent or an independent contractor at the time the injuries occurred.

Respondent testified that he had operated Blackhawk Improvement as a sole proprietorship for about 12 years. With the exception of a secretary who worked for him for about three years, respondent never withheld income or social security taxes or paid unemployment compensation insurance for any person performing work for his business. Respondent treated persons working for him other than his secretary as "subcontractors" who were required to pay their own taxes and insurance.

Although respondent's business encompassed virtually every type of home improvement, the application of aluminum siding constituted a major portion of his business. Respondent estimated that when claimant was injured, siding application constituted 90% of his business. Respondent testified that six or seven siding applicators were working for him at this time. Respondent considered everyone who worked for him "full time because I don't like to switch around no more than I have to."

Respondent made each siding applicator sign a "subcontractor's form" prior to each job. This instrument stated that the siding applicator was to furnish his own tools, equipment, and workmen's compensation and general liability insurance. According to respondent, this form was used to reduce his cost of doing business by eliminating the obligation to pay social security and unemployment taxes and workers' compensation insurance premiums. Respondent had claimant sign several of these forms in advance for the sake of convenience.

While "subcontractors" such as plumbers, electricians, carpenters, and roofers submitted bills to respondent, which such subcontractors prepared themselves, siding applicators were paid a certain amount per piece installed (e.g., soffits, gutters, and panels) which, though determined by respondent, was based upon generally accepted rates paid to siding applicators by other home-improvement contractors in the area. When a dispute arose as to the amount of payment, respondent and the siding applicator would settle it between themselves. The assignment of work to all "subcontractors" was respondent's prerogative. After claimant was injured, respondent, not claimant, determined who would finish the job.

Apparently, all "subcontractors" furnished their own tools. Although it is unclear who was responsible for supplying building materials to the "subcontractors," it is clear that respondent was solely and exclusively responsible for supplying the materials applied by the siding applicators.

Although siding applicators working for respondent were not required to account for their time, respondent frequently visited each work site to inspect the progress and quality of work. If either the progress or the quality of work failed to meet his approval, respondent would take corrective action. For example, when claimant was behind on the progress of a job, respondent himself helped claimant to complete the job. Respondent stated that he would tell his siding applicators to correct deficiencies he noted in their workmanship and that they would not be hired again if they did not meet his standards of quality and efficiency. Conversely, respondent was apparently most concerned with the cost, rather than the efficiency and quality, of work of "subcontractors" who submitted bills to him.

Some of respondent's siding applicators worked in teams; some, like claimant, worked alone. Respondent maintained that teams were paid a lump sum for each job and that the division of this sum was left to the team's discretion. On one occasion, however, respondent assigned an 18-year-old man to assist on a job on which claimant was working. Claimant related that he had not requested this assistance and that his pay was "docked" by an amount which he assumed respondent attributed to the labor of the young man. Respondent neither confirmed nor denied claimant's assertion regarding the amount claimant was paid on this occasion.

Claimant testified as follows: He had worked as a siding applicator for 20 years prior to the instant fall. Although he worked for several home-improvement contractors during these years, claimant tried to "stay in good" with one contractor at a time. During 1977, he worked exclusively for respondent even though respondent employed him only half the time (approximately 12 jobs). It is apparently conceded that respondent paid claimant $2341.15 during 1977.

On one occasion respondent took claimant from his current job site to a prior job site. Respondent instructed claimant to do additional work at the prior job site. On several occasions claimant transported materials to his job site with respondent's truck. Although claimant was purchasing this truck from respondent prior to the fall, respondent kept title to and possession of the truck.

All contractors, including respondent, paid claimant the same piecework rate. No contractors, including respondent, deducted social security or income taxes from claimant's pay. Most contractors, including respondent, required claimant to sign a "subcontractor's form" as a precondition for ...


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