NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND

MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

MICHAEL BLACKMAN

, Petitioner

,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA

, Respondent

,

RON CHAPPELL PAINTING, LLC, Respondent Employer

,

SPECIAL FUND DIVISION/NO INSURANCE SECTION,

Respondent Party in Interest

.

No. 1 CA

- IC 14

- 0011

Special Action

- Industrial Commission

ICA Claim No. 20131

- 160427

Carrier Claim No. None

Anthony F. Halas

, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Taylor & Associates, PLLC , Phoenix By Weston S. Montrose Counsel for Petitioner Employee

The Industrial Commission of Arizona

, Phoenix By Andrew F. Wade Counsel for Respondent2

Special Fund Division/ No Insurance Section

, Phoenix By Valli Goss

C ounsel for Respondent Party in Interest

MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Donn Kessler and Judge Kent E. Cattani joined.

T H O M P S O N

, Presiding Judge:

¶1 This is a special action review of an Industrial Commission of Arizona ( ICA ) award and decision upon review for a noncompensable claim. The petitioner employee (claimant) presents one issue on appeal: whether the respondent employer, Ron Chappell Painting, LLC (Chappell), was an employer subject to the Arizona Workers' Compensation Act. Because we find that Chappell did not regularly employ any workers at the time of the claimant’s injury, we affirm the award.

JURISDICTION AND STA NDARD OF REVIEW

¶2 This court has jurisdiction pursuant to A rizona Revised Statutes (A.R.S.) sections 12

- 120.21(A)(2) (2003), 23

- 951(A) (2012), and Arizona Rules of Procedure for Special Actions 10 (2009). 1 In reviewing findings and awards of the ICA, we defer to the ALJ’s factual findings, but review questions of law de novo. Young v. Indus. Comm’n , 204 Ariz. 267,
270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’n , 202
Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 200 2).

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.BLACKMAN v. CHAPPELL/SPEC FUND

Decision of the Court

3 FACTUAL AND PROCEDURAL HISTORY

¶3 On December 28, 2012, t he claimant was painting the interior of a residence in Arizona City. He was standing on an extension ladder

“ trimming out a ceiling ,” when the ladder slipped and he jumped off

, injur ing his le ft foot. The claimant sought medical treatment the same day. He filed a workers' compensation claim, which was denied for benefits by the respondent party in interest, Special Fund Division/No Insur ance Section ( No Insurance ).

¶4 The claimant timely protested the denial of benefits, and an
I CA hearing was held. Following the hearing, the ALJ found the claim to

be noncompensable, and the claimant timely requested administrative

review. T he ALJ summarily affirmed his ruling , and the claimant brought

t his appeal.

DISCUSSION

¶5 The evidence in this case established that the claimant had his own painting business, although he was working for the respondent employer, Ron Chappell Painting, LLC (Chappell), at the time he was injured. The claimant had respo nded to a newspaper ad vertisement placed by Chappell for “ experienced painters

. ” He paint ed two residences for Chappell: the first in Casa Grande and the second in Arizona City.

¶6 The claimant stated that Chappell gave him directions to each

residence , told him when to arrive, and provided the paint. As was
customary, t he claimant provided his own hand tools, brushes, and roller

frames. He testified that he had no written agreement with Chappell , and

there was no discussion of taxes, insurance, or ot her benefits. The claimant

b elieved that he had an employer/ employee relationship with Chappell because he was being paid by the hour instead of in a lump sum.

¶7 Tim othy and Cindy Fuller met the claimant when they

work ed with him at the Arizona City reside nce. They also had responded to Chappell’s ad vertisement for experienced painters with their own tools

. They were “ trying out ” for Chappell at the Arizona City residence to see if he liked their painting. Although Chappell p aid them by the hour on that initial job, he paid them in a lump sum on subsequent jobs

.

¶8 The Fullers received a co mbined check made out to Cindy.

N o taxes were taken out of their checks, and they had no written agreementBLACKMAN v. CHAPPELL/SPEC FUND

Decision of the Court

4 with Chappell. They drove their own van to the job site s and provided their own tools and supplies. Chappell provided only the paint. The Fullers understood that they were not employees of Chappell, but contractors.

The y worked for Chappell on an as

- needed basis from December 2012 to August 2013. During various jobs for Chappell, they met two other painters working for him in addition to the claimant.

¶9 Ron Chappell testified that he formed his business in 2010.

He stated that he performed approximately one hundred painting jobs

between 2010 and 20 12. Chappell testified that h e was self

- employed, that

he bid on residential interior painting jobs , and that he performed all of his own jobs unless he was offered too many jobs all at once. When that

occurred , he would contact other contractors to help him on an as

- needed

basis and he would pay them a fixed fee for their work

. He testified that he

found some of these contractors through placing newspaper ad vertisements

. He consider ed the initial job performed by these

contractor s to be for the evaluation of their skills. He provided no training or close supervision because he only used contractors who were experienced painters.

¶10 Chappell testified that he had no employees in 2012, because

he did not want to deal with insu rance, benefits, or va cation. He d id not

have a contractor’s license or carry workers’ compensation insurance

, and

he d id not use a written contract with his subcontractors. The only

information he had for any of the subcontractors was what was necessary

to complet e United St ates Citizenship and Immigration Services Form I

- 9.

¶11 Chappell t estified that when he met the claimant, he explained :

[H] e would be given an opportunity

- - He had to have his own tools, his own ladders, his own drop cloths. He was responsible

- - I was no t providing any insurance, any benefits

- - that he would be given tasks or jobs . . . . a nd . . . it would be for X amount of dollars per task.

. . . S o the arrangement was designed as a subcontractor where he would be given tasks and get paid for the tas ks.

He testified that he did not provide the claimant with a 1 099 for his 2012

work because it was such a small dollar amount that he wrote it off

.

¶12 In order to be entitled to receive workers' compensation benefits under the Arizona Workers' Compensation Act ( Act ) , a workerBLACKMAN v. CHAPPELL/SPEC FUND

Decision of the Court

5 must have been an employee of an employer subject to the act at the time of his injury. See A.R.S. §§ 23

- 901(6) (2014)

, 23

- 1021 ( Supp. 2013)

. Employers subject to the Act are defined by statute to include:

[E]very person who employs any workers or operatives regularly employed in the same business or establishment under contract of hire, including covered employees pursuant

to a professional employer agreement, except domestic servants. . . . For the purposes of this subsection, “regularly employed” includes all employments, whether continuous throughout the year, or for only a portion of the year, in the
usual trade, business, profession or occupation of an employer.

A.R.S. § 23

- 902(A) (2014)

.

¶13 This court interpreted the “regularly employed” language

from A.R.S. § 23

- 902(A) in Donohue v. Indus trial Comm ission , 178 Ariz. 173, 871 P.2d 720 (App. 1993):

The Legislature used the term “regularly employed” in

section 23

- 902(A) to refer to whether it is in the employer’s regular or customary business to employ workers, not to whether the employee in question is performing a task in the employer’s usual trade.

178 Ariz. at 176, 871 P .2d at 723 (emphasis added). We concluded that an employer is subject to the Act when he employs at least one employee in the regular course of his business. Id. at 179, 871 P.2d at 726.

¶14 Therefore, the legal question in this case is whether Chappell regularly employed at least one employee in the regular course of his

business. The ALJ concluded that the record contained insufficient evidence to establish that Chappell regularly employed any workers. 2 This finding is supported by both Chappel l’s and the Fuller s ’ testimony.

2 At oral argument, the claimant argued that he was surprised by the ALJ’s

section 23

- 902(A) “regular ly employ ed ” analys is, and that the issue at the hearing should have been whether he was an employee vs. an independent contractor, an issue that the ALJ did not reach. Neither claimant’s request for review nor his opening brief raised the issue of surprise; it is thereforeBLACKMAN v. CHAPPELL/SPEC FUND

Decision of the Court

6 ¶15 Chappell explained that he was a self

- employed painting

contractor who d id all of his own work

, unless he was offered too many jobs at the same time. When that situation occurred, he sought assistance from other experienced paint ing contractors who provide d their own equipment and perform ed the job for a set price. Timothy Fuller testified that he and Cindy c ontinued to work for Chappell on an as

- needed

, occasional basis after the Arizona City job and never considered themselves to be his employees.

¶16 We believe that the ALJ could conclude from this evidence

that Chappell’s hiring of extra labor in the form of experienced painting

contractors was “only occasional and unpredictable.” See Putz v. Indus.

Comm’n , 203 Ariz. 146, 150, ¶ 20 , 51 P.3d 979, 983 (App. 2002). For that reason, we agree that Chappell was not an employer subject to the A ct.

¶17 T he claimant argues that the ALJ should have applied Modern
Trailer Sales of Arizona, Inc. v. Industrial Commission , 17 Ariz. App. 482, 498
P.2d 556 (1972) to these facts, but we find it distinguishable. In Modern

Trailer , the employer was a corporation engaged in the business of buying
and selling house trailers from an established business location where the
trailers were displayed. 17 Ariz. App. at 484, 498 P.2d at 558. The
corporation had two full

- time, salaried employees. Id. In addition, the
owner estimated that twenty

- five percent of the time he employed
additional part

- time workers to “help

. . . when we got new mobile homes

in, ” to clean the trailers, and to perform yard maintenance

. Id. This court

h eld that the employer’s business plan involved the regular hiring of
additional employees, and therefore, it was subject to the Act. Id. at 486,

498 P.2d at 560. Because Chapp ell did not regularly employ others to carry
out his business plan, we find Modern Trailer inapplicable.

waived. See Special Events Serv., Inc. v. Indus. Comm’n , 228 Ariz. 332, 334 n. 1, ¶ 7, 266 P.3d 358, 360 n.1 (App. 2011).BLACKMAN v. CHAPPELL/SPEC FUND

Decision of the Court

7 ¶18 For the foregoing reasons, we affirm the award.