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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND 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

ARIZONA COURT OF APPEALS

DIVISION ONE

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 Respondent
2

Special Fund Division/No Insurance Section, Phoenix

By Valli Goss

Counsel 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 STANDARD OF REVIEW

¶2 This court has jurisdiction pursuant to Arizona 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. 2002).

 

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, the 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, 

injuring his left 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 Insurance 

Section (No Insurance). 

¶4 The claimant timely protested the denial of benefits, and an 

ICA hearing was held. Following the hearing, the ALJ found the claim to 

be noncompensable, and the claimant timely requested administrative 

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

this 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 responded to a newspaper advertisement placed 

by Chappell for “experienced painters.” He painted 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, the 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 other benefits. The claimant 

believed that he had an employer/employee relationship with Chappell 

because he was being paid by the hour instead of in a lump sum.

¶7 Timothy and Cindy Fuller met the claimant when they

worked with him at the Arizona City residence. They also had responded 

to Chappell’s advertisement 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 paid them by the hour on that 

initial job, he paid them in a lump sum on subsequent jobs.

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

No taxes were taken out of their checks, and they had no written agreement 
BLACKMAN v. CHAPPELL/SPEC FUND

Decision of the Court

4

with Chappell. They drove their own van to the job sites and provided their 

own tools and supplies. Chappell provided only the paint. The Fullers

understood that they were not employees of Chappell, but contractors. 

They 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 2012. Chappell testified that he 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 

advertisements. He considered the initial job performed by these 

contractors 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 insurance, benefits, or vacation. He did not 

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

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

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

to complete United States Citizenship and Immigration Services Form I-9.

¶11 Chappell testified 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 not providing any insurance, any benefits 

- - that he would be given tasks or jobs . . . . and . . . it would 

be for X amount of dollars per task. . . . So the arrangement 

was designed as a subcontractor where he would be given 

tasks and get paid for the tasks.

He testified that he did not provide the claimant with a 1099 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 worker 
BLACKMAN 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. Industrial Commission, 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 Chappell’s and the Fullers’ testimony.

 

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

section 23-902(A) “regularly employed” analysis, 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 therefore
BLACKMAN v. CHAPPELL/SPEC FUND

Decision of the Court

6

¶15 Chappell explained that he was a self-employed painting 

contractor who did 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 painting contractors who provided their own 

equipment and performed the job for a set price. Timothy Fuller testified 

that he and Cindy continued 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 Act. 

¶17 The 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

held 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 Chappell 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.