Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

December 4, 2009 

137987 

JAMES A. LOOS, JR., 

Plaintiff-Appellee, 

v SC: 137987 

 COA: 275704 

WCAC: 05-000246 

J.B. INSTALLED SALES, INC., a/k/a J.B. 

SUPPLY and ACCIDENT FUND 

INSURANCE COMPANY OF AMERICA, 

 Defendants-Appellants, 

and 

ROBINSON ROOFING, 

Defendant-Appellee. 

_________________________________________/ 

 On November 4, 2009, the Court heard oral argument on the application for leave 

to appeal the November 20, 2008 judgment of the Court of Appeals. On order of the 

Court, the application is again considered. MCR 7.302(H)(1). In lieu of granting leave 

to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the 

decision of the worker’s compensation magistrate. The Court of Appeals improperly 

held that income tax records regarding whether the plaintiff was paid wages or nonemployee compensation are irrelevant to the question of whether the plaintiff is an 

employee under MCL 418.161(1)(n). Such records are directly relevant to the question 

of employee status. Blanzy v Brigadier, 240 Mich App 632 (2000); Betancourt v Ronald 

Smith, 1999 ACO #608. Based on the Court of Appeals erroneous legal conclusion in 

this case, it mistakenly concluded that the Workers’ Compensation Appellate 

Commission (WCAC) had properly performed its administrative appellate review 

function. The WCAC improperly reversed the magistrate’s decision based on a de novo 

assessment of the record and application of incorrect legal principles regarding whether 

the plaintiff was an employee. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 

700 (2000). 

 CAVANAGH, J. (concurring in part and dissenting in part). 

 I concur with the majority’s statement that tax records are relevant to the question 

of whether a plaintiff is an employee under MCL 418.161(1)(n). However, because I 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

December 4, 2009 

1201 

 

2

believe that the Workers’ Compensation Appellate Commission (WCAC) properly 

performed its appellate review function, I respectfully dissent and would affirm the result 

reached by the Court of Appeals. 

 Plaintiff fell from a roof and sustained injuries while working for Robinson 

Roofing, which had contracted with J.B. Installed Sales, Inc., (J.B.) to perform roof work. 

Plaintiff sought worker’s compensation benefits from J.B. under MCL 418.171. The 

magistrate found that plaintiff was an independent contractor, and therefore denied 

benefits, because plaintiff’s tax records revealed that his earnings from Robinson Roofing 

were reported as non-employee earnings; his Social Security records indicated that 

plaintiff was not an employee of Robinson Roofing; his hospital records indicated that 

plaintiff identified himself as self-employed; Robinson Roofing did not inform J.B. that it 

had any employees, as required by their contract; and plaintiff used some of his own tools 

while working for Robinson Roofing. The WCAC reversed in a unanimous decision, 

stating that “the statutory language [of MCL 418.161(1)(n)] makes it clear that the proper 

focus is on the plaintiff’s actions and not the parties’ labels.” 2006 ACO 309, p 6. I 

agree. 

 The Worker’s Disability Compensation Act defines “employee” in MCL 

418.161(1)(n). The statute states that a claimant is an employee “if the person in relation 

to this service does not maintain a separate business, does not hold himself or herself out 

to and render service to the public, and is not an employer subject to this act.” MCL 

418.161(1)(n) (emphasis added). Given the statutory language, I agree with the WCAC 

that the proper focus is on the conduct of the person seeking benefits rather than the 

labels attached to the relationship by the parties. Robinson Roofing’s “labeling” that it 

had no employees, plaintiff’s “labeling” of himself as self-employed, and plaintiff’s tax 

records, which were filed based on a Form 1099 that was supplied by Robinson Roofing, 

should not have been the focus of the magistrate’s analysis. Thus, I believe that the 

WCAC did not misapprehend its administrative appellate review when it determined that 

the magistrate applied its findings of fact to a misconception of the law. Because I 

believe that the WCAC did not misapprehend its administrative appellate role in 

reviewing the magistrate’s decision, and there is evidence to support the WCAC’s 

decision, I would affirm the result reached by the Court of Appeals. See Holden v Ford 

Motor Co, 439 Mich 257, 268-269 (1992). 

 KELLY, C.J., and HATHAWAY, J., join the statement of CAVANAGH, J.