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05/13/94 SIDNEY L. DAVIS v. INDUSTRIAL COMMISSION

May 13, 1994

SIDNEY L. DAVIS, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (CHARLES J. GRAMLICH LAW OFFICES, APPELLEE).



Appeal from Circuit Court of Sangamon County. No. 92MR142. Honorable Leo J. Zappa, Judge Presiding.

Rehearing Denied and Released for Publication June 30, 1994.

Honorable Kent F. Slater, J., Honorable John T. McCULLOUGH, P.j., Honorable Alfred E. Woodward, J., Concurring, Honorable Thomas R. Rakowski, J., Honorable Philip J. Rarick, J., Dissenting

The opinion of the court was delivered by: Slater

JUSTICE SLATER delivered the opinion of the court:

Claimant, Sidney Davis, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) seeking benefits for injuries which allegedly arose out of and in the course of his employment with respondent, Charles Gramlich. Following a hearing, the arbitrator found that no employer-employee relationship existed between respondent and claimant. That finding was affirmed by the Industrial Commission (Commission). The circuit court confirmed the decision of the Commission, and this appeal followed.

The sole issue raised on appeal is whether the Commission's determination that no employer-employee relationship existed was against the manifest weight of the evidence. We find that it was not, and therefore affirm.

At the arbitration hearing, claimant testified that he was hired by respondent on or about July 1, 1987. Claimant had responded to a classified advertisement placed in the newspaper by the respondent. The advertisement stated as follows:

"I need an able-bodied jack of all trades for a variety of jobs. This is a permanent, part-time position, 20-25 hours per week. It involves some farm work and maintenance, and yard care. The ideal candidate would be a semi-retired person with some knowledge of carpentry. Starting is $6.00 per hour. Please send a brief resume stating your job history and references to P.O. Box 5235, Springfield, Illinois 62705."

Claimant submitted a resume and was contacted by phone. He went to respondent's law office for an interview. During the interview, respondent asked claimant what type of vehicle he owned, and what experience and abilities he had. Respondent indicated that the job would include mowing, fencing, carpentry, plumbing and electrical work, and generally caring for respondent's farm and other properties.

The actual work performed by the claimant was similar to that described by the respondent at the interview. The claimant worked for four weeks before he was injured. During this time, he assembled a piece of furniture, performed carpentry work in a house, repaired a tractor and put a mower together. He erected a fence, cut weeds, applied floor leveler to a floor, mounted some doors and began building a pole barn.

Claimant was paid $6 an hour. He worked from 40 to 50 hours each week. He turned in a time sheet each week and was reimbursed for any materials he had purchased during the week. Claimant would contact respondent each day to determine what work was to be done the following day. He stated that the time he arrived and left work each day was left up to him. He generally tried to get to work by 7 or 8 a.m., and left when he had finished or when the sun went down. Claimant testified that when he was given his first paycheck, respondent indicated that he was not going to withhold any taxes from claimant's check, and that it was up to claimant to decide whether to pay taxes at the end of the year. Claimant stated that he and respondent did not discuss any benefits associated with the job.

Claimant testified that on a few occasions respondent came out to where claimant was working to check on the progress of a particular job. If he was unsatisfied, respondent would tell claimant that he wanted a job done a different way. When claimant was laying out a fence to be built on the farm, respondent came out and indicated where he wanted the fence line to run. Respondent did not go to the jobsite while claimant was building the fence.

On July 27, 1987, claimant was beginning construction of a barn for respondent. Claimant rented a flatbed truck and hired a driver. He purchased used telephone poles for use in the construction of the barn. The poles were loaded on the truck and taken to the farm. While unloading the poles at the construction site, claimant was knocked to the ground by a falling pole. A number of poles fell on top of him and he experienced pain in his leg, back, arms and sides. He was transported by ambulance to Memorial Medical Center in Springfield.

X rays of the claimant revealed a fracture of the left tibia and a compression fracture of the T12 vertebrae. Claimant was hospitalized for 10 days. He was placed in a body cast as well as a straight leg cast. Claimant received physical therapy and was discharged on September 17, 1987. He was released to return to light-duty work on November 2, 1987. Claimant testified ...


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