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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

Emmet Wright, Personal Representative of 

the Estate of Gerardo Navarro Robles, deceased, 

and Veronica Ramirez, as dependent of Gerardo 

Navarro Robles, deceased, appellants, v. H & S 

Contracting, Inc., and Travelers Property 

Casualty Company of America, its 

workers’ compensation insurance 

carrier, appellees.

___ N.W.2d ___

Filed March 9, 2021. No. A-20-175.

1. Workers’ Compensation: Appeal and Error. An appellate court may 

modify, reverse, or set aside a compensation court decision only when 

(1) the compensation court acted without or in excess of its powers; (2) 

the judgment, order, or award was procured by fraud; (3) there is not 

sufficient competent evidence in the record to warrant the making of the 

order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

2. ____: ____. On appellate review, the factual findings made by the trial 

judge of the compensation court have the effect of a jury verdict and 

will not be disturbed unless clearly wrong.

3. Workers’ Compensation: Judgments: Appeal and Error. In testing 

the sufficiency of the evidence to support the findings of fact in a workers’ compensation case, an appellate court considers the evidence in the 

light most favorable to the successful party, every controverted fact must 

be resolved in favor of the successful party, and the appellate court gives 

the successful party the benefit of every inference reasonably deducible 

from the evidence.

4. Employer and Employee: Independent Contractor: Master and 

Servant. A person’s status as an employee or an independent contractor 

is a question of fact; however, where the facts are not in dispute and 

where the inference is clear that there is, or is not, a master and servant 

relationship, the matter is a question of law.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/09/2021 08:07 AM CST
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Nebraska Court of Appeals Advance Sheets

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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

5. Employer and Employee: Independent Contractor. There is no single 

test for determining whether one performs services for another as an 

employee or as an independent contractor; rather, the following factors 

must be considered: (1) the extent of control which, by the agreement, 

the employer may exercise over the details of the work; (2) whether the 

one employed is engaged in a distinct occupation or business; (3) the 

kind of occupation, with reference to whether, in the locality, the work is 

usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) 

whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the 

length of time for which the one employed is engaged; (7) the method of 

payment, whether by the time or by the job; (8) whether the work is part 

of the regular business of the employer; (9) whether the parties believe 

they are creating an agency relationship; and (10) whether the employer 

is or is not in business.

6. Workers’ Compensation: Employer and Employee: Independent 

Contractor. The protections provided under Neb. Rev. Stat. § 48-116 

(Reissue 2010) are to ensure that companies cannot use subcontractors 

to absolve them of the responsibility to ensure that employees are properly insured under the Nebraska Workers’ Compensation Act.

Appeal from the Workers’ Compensation Court: James R. 

Coe, Judge. Affirmed.

Justin High, of High & Younes, L.L.C., for appellants.

James D. Garriott and, on brief, John A. McWilliams, of 

Cassem, Tierney, Adams, Gotch & Douglas, for appellee H & S 

Contracting, Inc.

CeCelia C. Ibson, of Ibson Law Firm, for appellee Travelers 

Property Casualty Company of America.

Riedmann, Bishop, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Gerardo Navarro Robles (Robles) was installing roofing/

siding when he fell from the roof, sustained injuries, and 

later died. The personal representative of his estate and Robles’ 

widow sought workers’ compensation benefits, claiming that 
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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

the contractor who hired him was either his employer or 

his statutory employer. The Nebraska Workers’ Compensation 

Court determined that Robles was an independent contractor 

and that the contractor who hired him was not obligated to 

provide benefits. Finding no error by the compensation court, 

we affirm.

BACKGROUND

H & S Contracting, Inc. (H&S), hired Robles to perform siding work on a jobsite. While working on September 29, 2015, 

he fell from the roof. His fall paralyzed him from the neck 

down, and this injury ultimately contributed to his death on 

August 8, 2018. Emmet Wright, the personal representative of 

Robles’ estate, and Veronica Ramirez, Robles’ widow (collectively the appellants), brought a workers’ compensation claim 

against H&S. The appellants claim either that Robles was an 

employee of H&S or that H&S was his statutory employer. 

H&S denied the allegations, affirmatively alleging that Robles 

was not its employee.

Testimony during the workers’ compensation hearing showed 

that at the time of his accident, Robles owned his own roofing 

company, Navarro Roofing, and always represented himself 

as the owner of the company. Robles performed jobs for H&S 

intermittently since 2008. He sent H&S an invoice for each 

project he completed. H&S paid Robles per job, based on its 

size, as opposed to an hourly wage that it paid to its employees. H&S issued him a 1099 tax form for each year, including 

the year 2015; it never issued him a W-2 tax form. Robles was 

free to turn down a job from H&S and could freely work for 

another company, which he periodically did.

Navarro Roofing had its own checking account and filed 

tax returns. Robles deducted substantial business expenses for 

vehicles, contract labor, and insurance. He also depreciated 

and amortized certain business equipment. He indicated on 

his federal tax returns from 2010 through 2013 that he was 

an independent contractor by filing a self-employment tax 

form. Despite being urged by his insurance agent to purchase 
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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

workers’ compensation insurance, Robles consistently refused. 

He did, however, carry general liability insurance.

H&S did not supervise Robles or his work crew on how to 

complete a job; rather, Robles supervised his own crew. H&S 

did, however, ensure that the job was completed and that work 

materials were cleaned up at the jobsite. It would also do a 

quality control inspection and check on the job periodically 

if supervisors had time to do so. Additionally, H&S did not 

set Robles’ hours or work schedule and did not control how 

he completed the work, although he was expected to follow 

the customer’s expectations and manufacturer warranties for 

each job.

H&S supplied the materials and items such as trailers and 

nails for each job. However, Robles supplied his own tools and 

equipment, including “ladders, scaffolding, nail guns, compressors” and “a hammer” and “nail pouch.”

The insurance agent for H&S at all relevant times was 

also the insurance agent for Navarro Roofing. On or about 

September 9, 2015, her office received a request from Travelers 

Property Casualty Company of America (Travelers), H&S’ 

workers’ compensation insurance carrier, asking for Robles’ 

certificate of workers’ compensation insurance. Her office forwarded a certificate of insurance that inadvertently indicated 

that Navarro Roofing carried workers’ compensation insurance. 

Shortly thereafter, the insurance agent contacted Travelers to 

tell it that coverage was erroneously indicated. As a result, 

when Travelers performed its audit of H&S’ payroll in August 

2016, it recalculated H&S’ insurance premium based upon 

payroll that included payments made to Robles. According to 

H&S’ office manager, he contested the inclusion of payments 

to Robles, and Travelers issued a premium adjustment, based 

upon payroll that excluded payments made to Robles. H&S’ 

office manager testified that H&S never paid the premium that 

included Robles’ wages.

The compensation court determined that Robles was an 

independent contractor and dismissed his claim. The appellants 

filed a timely appeal.
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Nebraska Court of Appeals Advance Sheets

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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

ASSIGNMENTS OF ERROR

The appellants assert, rephrased and renumbered, that the 

compensation court erred in (1) finding Robles was not an 

employee of H&S; (2) determining the statutory employer doctrine did not apply; and (3) finding that an insurer may treat an 

individual as an employee and collect a premium on that basis, 

but refuse to provide insurance coverage for him or her.

STANDARD OF REVIEW

[1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), 

an appellate court may modify, reverse, or set aside a compensation court decision only when (1) the compensation court 

acted without or in excess of its powers; (2) the judgment, 

order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making 

of the order, judgment, or award; or (4) the findings of fact 

by the compensation court do not support the order or award. 

Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 

765 (2020).

[2,3] On appellate review, the factual findings made by the 

trial judge of the compensation court have the effect of a jury 

verdict and will not be disturbed unless clearly wrong. Id. In 

testing the sufficiency of the evidence to support the findings 

of fact in a workers’ compensation case, an appellate court considers the evidence in the light most favorable to the successful 

party, every controverted fact must be resolved in favor of the 

successful party, and the appellate court gives the successful 

party the benefit of every inference reasonably deducible from 

the evidence. Id.

ANALYSIS

Robles Was Not Employee 

of H&S.

The appellants claim the compensation court erred in determining that Robles was an independent contractor of H&S 

rather than its employee. We disagree.
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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

[4] A person’s status as an employee or an independent contractor is a question of fact; however, where the facts are not 

in dispute and where the inference is clear that there is, or is 

not, a master and servant relationship, the matter is a question 

of law. Aboytes-Mosqueda v. LFA Inc., supra.

[5] There is no single test for determining whether one performs services for another as an employee or as an indepen

dent contractor; rather, the following factors must be considered: (1) the extent of control which, by the agreement, the 

employer may exercise over the details of the work; (2) whether 

the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in 

the locality, the work is usually done under the direction of the 

employer or by a specialist without supervision; (4) the skill 

required in the particular occupation; (5) whether the employer 

or the one employed supplies the instrumentalities, tools, and 

the place of work for the person doing the work; (6) the length 

of time for which the one employed is engaged; (7) the method 

of payment, whether by the time or by the job; (8) whether 

the work is part of the regular business of the employer; (9) 

whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business. Id. See, also, Larson v. Hometown Communications, Inc., 

248 Neb. 942, 540 N.W.2d 339 (1995).

Many of these factors militate against a finding that Robles 

was an employee of H&S. The extent of control and super

vision on the part of H&S was minimal, as testimony showed 

that H&S supervisors rarely oversaw Robles’ work, and certainly not on a day-to-day basis. While supervisors would 

periodically check on Robles, he was left to manage his own 

work schedule, was allowed to supervise the work himself, and 

was never told how to complete a job.

The second factor in favor of Robles’ being classified 

as an independent contractor is that Robles did business as 

“Navarro Roofing.” His widow iterated in her testimony that he 

owned Navarro Roofing. This company had its own checking 
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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

account in that name, and Robles filed his tax returns under the 

business’ name as a construction and roofing profession.

Robles also provided his own tools and instrumentalities for 

the work, indicating he was not H&S’ employee. While H&S 

supplied the basic materials necessary to do the actual work, 

testimony indicated Robles supplied his own tools. This is also 

supported by his 2011 tax return, in which Robles indicated 

depreciation of equipment for Navarro Roofing. Therefore, this 

factor weighs in favor of Robles’ being classified as an independent contractor.

The method of payment for Robles’ work was per job rather 

than hourly. Testimony showed that H&S employees were 

paid hourly, while Robles was paid per job, depending upon 

the size of the job. Employees are normally compensated by 

the hour, and independent contractors are compensated by the 

job. See Stephens v. Celeryvale Transport, Inc., 205 Neb. 12, 

286 N.W.2d 420 (1979). H&S’ compensation of Robles per job 

favors Robles’ status as an independent contractor.

No evidence exists that H&S and Robles intended to create 

an agency relationship. In fact, an H&S representative testified 

that H&S offered to hire Robles as an employee, but Robles 

refused because he liked his “winters off.” H&S employees 

also testified they did not consider Robles to be an H&S 

employee. A lack of intent to create an agency relationship 

indicates Robles was more likely an independent contractor 

than an employee.

The appellants argue that the compensation court “incorrectly relied upon” and “incorrectly ignored” certain facts that 

were adduced at trial. Brief for appellants at 31, 32. However, 

findings of fact made by the compensation court after review 

have the same force and effect as a jury verdict and will not 

be set aside unless clearly erroneous. Rogers v. Jack’s Supper 

Club, 304 Neb. 605, 935 N.W.2d 754 (2019). The majority of 

the factors, including the extent of control by Robles, Robles’ 

engagement in a distinct occupation, the lack of supervision by 

H&S, Robles’ supplying his own tools, H&S’ paying Robles 
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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

per job, and the lack of indication that the parties believed 

they were creating an agency relationship, all weigh in favor of 

the compensation court’s finding that Robles was an independent contractor.

Based upon the factors set forth in Larson v. Hometown 

Communications, Inc., supra, we conclude that the compensation court’s factual determination was not clearly erroneous.

H&S Was Not Robles’ 

Statutory Employer.

The appellants argue the compensation court erred in dismissing their claim because the evidence showed H&S was 

a statutory employer under Neb. Rev. Stat. § 48-116 (Reissue 

2010). Section 48-116 states:

Any person, firm, or corporation creating or carrying into operation any scheme, artifice, or device to 

enable him or her, them, or it to execute work without 

being responsible to the workers for the provisions of the 

Nebraska Workers’ Compensation Act shall be included 

in the term employer, and with the immediate employer 

shall be jointly and severally liable to pay the compensation herein provided for and be subject to all the provisions of such act. This section, however, shall not be 

construed as applying to an owner who lets a contract to 

a contractor in good faith, or a contractor, who, in good 

faith, lets to a subcontractor a portion of his or her contract, if the owner or principal contractor, as the case may 

be, requires the contractor or subcontractor, respectively, 

to procure a policy or policies of insurance from an insurance company licensed to write such insurance in this 

state, which policy or policies of insurance shall guarantee payment of compensation according to the Nebraska 

Workers’ Compensation Act to injured workers.

[6] The Nebraska Supreme Court has determined that “the 

protections provided under § 48-116 are to ensure that companies cannot use subcontractors to absolve them of the responsibility to ensure that employees are properly insured under 
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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

the Nebraska Workers’ Compensation Act.” Aboytes-Mosqueda 

v. LFA Inc., 306 Neb. 277, 283, 944 N.W.2d 765, 770 (2020). 

See Martinez v. CMR Constr. & Roofing of Texas, 302 Neb. 

618, 924 N.W.2d 326 (2019). As the Supreme Court explained:

[I]t is clear from our case law and the language of 

§ 48-116 that liability under § 48-116 presupposes that 

the injured worker was an “employee” of the subcontractor, to whom the subcontractor had an obligation 

to procure workers’ compensation insurance protection. 

We have found liability under § 48-116 only when the 

claimant was an employee of the subcontractor and the 

principal contractor failed to require the subcontractor to carry the proper insurance. Thus, the applicability of 48-116 depends on whether or not [the injured 

party] is an employee . . . under the Nebraska Workers’ 

Compensation Act.

Aboytes-Mosqueda v. LFA Inc., 306 Neb. at 284, 944 N.W.2d at 

771. Thus, the question we must address is whether Robles was 

an employee of Navarro Roofing as defined by statute.

Neb. Rev. Stat. § 48-115 (Reissue 2010) defines “employee” 

and “worker” synonymously, stating that “employee and 

worker are used interchangeably and have the same meaning 

throughout the Nebraska Workers’ Compensation Act.” Section 

48-115(10) explains that “employee” and “worker” include 

“[e]ach individual employer, partner, limited liability company 

member, or self-employed person who is actually engaged in 

the individual employer’s, partnership’s, limited liability company’s, or self-employed person’s business on a substantially 

full-time basis who elects to bring himself or herself within 

the provisions of the Nebraska Worker’s Compensation Act.” 

Testimony from multiple witnesses confirmed that Robles was 

the owner of Navarro Roofing. He filed federal tax returns 

identifying himself as self-employed. Despite recommendations from his insurance agent to obtain workers’ compensation 

insurance, he consistently declined.

Because Robles was a self-employed person engaged in 

his own self-employed business and elected not to bring 
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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

himself within the Nebraska Workers’ Compensation Act, he is 

not considered an employee as defined in § 48-115. As such, 

the statutory employer provision does not provide him coverage, because it affords protection for employees of a subcontractor who were injured on the job. See § 48-116.

Specifically, the Supreme Court has found that under 

§ 48-116,

when a contractor fails to require a subcontractor to carry 

workmen’s compensation insurance and an employee of 

the latter sustains a job-related injury, the contractor is 

a statutory employer and, with the immediate employer 

subcontractor, is jointly and severally liable to pay compensation under . . . the Workmen’s Compensation Act.

Rogers v. Hansen, 211 Neb. 132, 136, 317 N.W.2d 905, 908 

(1982) (emphasis supplied). See Duffy Brothers Constr. Co. v. 

Pistone Builders, Inc., 207 Neb. 360, 299 N.W.2d 170 (1980). 

Here, Robles was not an “employee of the latter.” Rather, he 

was self-employed as the owner of Navarro Roofing and chose 

not to obtain workers’ compensation insurance; therefore, he 

does not fit within the purview of § 48-116.

Travelers’ Premium 

and Coverage.

The appellants assign as error that the compensation court 

erred in finding that an “insurer may treat an individual as 

an employee and collect premium on that basis, then refuse 

to cover that individual when he sustains a catastrophic accident.” They argue that “there is ample evidence premium was 

collected based on . . . Robles’s additional payroll and a lack 

of evidence that payroll was returned.” Brief for appellants 

at 26.

The appellants ignore that there is a conflict in the evidence as to whether H&S ever paid the increased premium. 

Although the insurance agent testified that her file did not 

contain any reference to a premium refund once the audit was 

complete, H&S’ office manager testified that he never paid 

the increased premium. The court did not address this conflict 
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WRIGHT v. H & S CONTRACTING

Cite as 29 Neb. App. 581

in the evidence, focusing instead upon the facts that H&S 

requested Robles’ earnings be removed prior to the date of his 

accident and that the amount of premium was reduced following its request. Because the court was considering potential 

payment of a premium as an “eleventh factor” of the 10-factor 

test set forth in Larson v. Hometown Communications, Inc., 

248 Neb. 942, 540 N.W.2d 339 (1995), we find no error weighing this factor in favor of a finding that Robles was an independent contractor.

The appellants take issue with the consideration of coverage as a factor of the Larson test, arguing the district court 

“failed to adequately consider the coverage issues argued in 

Appellants’ closing brief and instead considered Travelers’ 

conduct as an eleventh element of the Larson ten factor test.” 

Brief for appellants at 25. The appellants’ closing brief is not 

contained in our record; therefore, we are unable to assess 

whether the arguments advanced on appeal are the same as 

those made to the compensation court. Because our record 

does not contain any indication that arguments related to the 

specific provisions of Travelers’ policy mandate coverage, 

we will not address such argument on appeal. See Cattle Nat. 

Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 

(2016). The appellants also argue that Travelers’ current position is inconsistent with the position it has taken in other litigation; however, because our record does not indicate that this 

argument was presented to the compensation court, we do not 

address it.

We find no error in the compensation court’s determination that the underwriting and audit procedures presented in 

the record do not require a determination that Robles was an 

employee of H&S.

CONCLUSION

For the aforementioned reasons, we affirm the order of the 

compensation court dismissing the appellants’ complaint.

Affirmed.