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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MIGUEL ESPITIA,

Petitioner Employee, 

v.

THE INDUSTRIAL COMMISSION OF ARIZONA,

Respondent, 

USW/CAT CONSTRUCTION AND

RESTORATION EXPERTS 

CASTASTROPHE TEAM, INC.,

Respondent Employer, 

SPECIAL FUND DIVISION/NO 

INSURANCE SECTION,

Respondent Party in Interest.

No. 1 CA-IC 18-0076 

Special Action - Industrial Commission

ICA No. 20172-420049

The Honorable C. Andrew Campbell, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Snow, Carpio & Weekley, PLC, Phoenix

By Erica Rose Gonzalez-Melendez

Counsel for Petitioner Employee

FILED 6-18-2019
2

Industrial Commission of Arizona, Phoenix

By Stacey A. Rogan

Counsel for Respondent ICA

Hendrickson & Palmer, PC, Phoenix

By Adam P. Palmer

Counsel for Respondent Employer

Industrial Commission of Arizona, Phoenix

By Stephen D. Ball

Counsel for Respondent Party in Interest

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.

J O H N S E N, Judge:

¶1 Miguel Espitia appeals by special action the Decision Upon 

Review of the Industrial Commission of Arizona ("ICA"). Espitia argues 

the Administrative Law Judge ("ALJ") erred by finding he was not an 

employee of USW/CAT Construction and Restoration Experts Catastrophe 

Team, Inc. ("USW") at the time of the accident. For the reasons that follow, 

we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Espitia fell three or four feet from a ladder at a job site on July 

14, 2017, and landed on his right knee. The knee swelled, caused him 

"severe pain." Physicians at urgent care detected a "small knee joint 

effusion" and instructed Espitia to "[r]est, ice and elevate the affected area"

and use a brace on the knee.

¶3 Espitia began using crutches and did not return to work. He

later underwent an MRI and an x-ray and visited Dr. Jason Ferrari. Ferrari's 

review of the MRI and x-ray revealed a "lateral femoral posterior condylar 

area" fracture, and he noted Espitia "may need a knee replacement in the 

future." Ferrari instructed Espitia to refrain from working for an additional

month. After requesting a change in doctor through the ICA, Espitia visited 
ESPITIA v. USW/CAT/SPECIAL FUND 

Decision of the Court

3

Dr. Brad Cucchetti, who ordered additional tests "to evaluate any progress 

or subsidence of the fracture."

¶4 Meanwhile, Espitia filed a claim for worker's compensation 

benefits, listing USW as his employer. The Special Fund Division – No 

Insurance Section originally denied Espitia's claim but later rescinded its 

denial, accepted the claim. USW timely filed a Request for Hearing, 

asserting it was not Espitia's employer at the time of the accident.

¶5 At the hearing, ALJ Gaetano Testini heard testimony from 

Espitia, Joel Lewis and Alan Perry, USW's corporate officer and director.

The ALJ also received Espitia's medical records; images of text messages 

between Espitia and Lewis and between Espitia and Mike Perry, Alan's son; 

images of canceled checks made out to Espitia from USW; and Home Depot 

receipts showing purchases made by Espitia on behalf of USW.

¶6 Espitia testified he had worked "with" USW beginning in 

November or December of 2015. Explaining how he began to do so, Espitia

said he ran into Lewis, whom he had known for many years, and told Lewis

he was available if he had any work for Espitia. Thereafter, Espitia said, he 

began working with Lewis on various projects. Espitia first helped Lewis 

dig ditches for an electric company, and next assisted Lewis with a patio 

demolition for USW. Espitia continued to help Lewis with various tasks on 

USW projects, including painting, carpentry and cleaning. He testified 

Lewis told him what time to start work and what work he was to do. When 

Espitia finished a project, he would let Lewis know. He testified he did not 

know whether Lewis checked his work, but that he would send Lewis 

photos when he was finished with a project. If Espitia found something 

"wrong" when working on a project, he would tell Lewis, and Lewis would 

tell him what needed to be done. Espitia testified he would use his own "air 

guns, . . . a compressor, a generator, drills, things like that," but sometimes 

he needed to use other tools belonging to Lewis or others on the job site.

¶7 USW originally paid Espitia in cash but in 2017 began paying 

him by check. USW did not deduct taxes from his pay, and Espitia admitted 

that he knew he would have to pay taxes on his wages. When Espitia filled 

out a W-9 form in May 2017, he checked the box indicating he was an 

individual/sole proprietor but testified at the hearing he did not remember 

doing that. Espitia testified he would let Lewis know when he was going 

to take vacation days. He received no vacation pay, although he testified 

USW gave him $50 on his last vacation day; nor did he receive sick pay, 

health insurance or other benefits.
ESPITIA v. USW/CAT/SPECIAL FUND 

Decision of the Court

4

¶8 Lewis testified he (Lewis) was a self-employed contractor 

who did work mainly for USW but also worked for other contracting 

companies. He testified he managed Espitia and others as subcontractors; 

he would tell Espitia where to go to work each day, when to start the work 

if there was a set appointment and would check Espitia's work to ensure 

that it was done correctly. Lewis testified Espitia worked five days some 

weeks, but two or three days other weeks. He also testified Espitia was free 

to set his own schedule, could start work when he wanted, take breaks 

when he wanted, leave when he wanted, could refuse any work offered him

and did not need to get approval when he wanted to take vacation time or 

sick days. 

¶9 In his Decision Upon Hearing, the ALJ found Lewis's and 

Perry's testimony to be "more probably correct" and resolved all conflicts in 

the testimony in their favor. The ALJ concluded Espitia was neither a direct 

nor statutory employee of USW at the time of the accident and denied 

Espitia's claim. Espitia timely filed a request for review. Before that review 

took place, ALJ Testini resigned, and a new ALJ was assigned.

¶10 ALJ C. Andrew Campbell reviewed and affirmed the 

Decision Upon Hearing. ALJ Campbell acknowledged he was "bound by 

the credibility findings made by the presiding ALJ at hearing" and ruled

that by finding Lewis's and Perry's testimony "more probably correct," ALJ 

Testini had made such a credibility finding. Based on the facts as found by 

ALJ Testini, ALJ Campbell concluded as a matter of law that USW was 

neither Espitia's direct nor statutory employer at the time of the accident

and affirmed the Decision Upon Hearing.

¶11 Espitia timely petitioned for special action relief. We have 

jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, 

Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2) (2019), 23-

951(A) (2019) and Arizona Rule of Procedure for Special Actions 10.

1

DISCUSSION

¶12 Espitia raises two challenges to the award. First, he contends 

neither ALJ made a credibility finding, which he argues was required to 

dispose of the matter. He argues that although ALJ Testini found that 

Lewis's and Perry's testimony was "more probably correct," ALJ Testini did 

not make a credibility finding. Second, Espitia argues the award should be 

 

1 Absent material revision after the relevant date, we cite the current 

version of a statute or rule.
ESPITIA v. USW/CAT/SPECIAL FUND 

Decision of the Court

5

overturned because "the evidence did not support the finding . . . that USW 

did not have the right to control [Espitia's] work and [Espitia] was therefore 

not a direct employee of USW."

¶13 "In reviewing ICA findings and awards, we defer to the ALJ's 

factual findings but review questions of law de novo." Landon v. Indus. 

Comm'n, 240 Ariz. 21, 24, ¶ 9 (App. 2016). We view the evidence in the light 

most favorable to upholding the ALJ's award, and when reasonable 

evidence supports the ALJ's decision, we are bound by the ALJ's resolution 

of conflicting testimony. Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, 605, 

609, ¶¶ 10, 25 (App. 2000).

¶14 Whether an individual is an employee or an independent 

contractor turns on the alleged employer's "right to control or supervise the 

method of reaching a specific result." Home Ins. Co. v. Indus. Comm'n, 123 

Ariz. 348, 350 (1979); A.R.S. § 23-902 (2019). When considering an 

employer's right to control, we look to the totality of the facts and 

circumstances and consider several indicia of control, including

the duration of the employment; the method of payment; who 

furnishes necessary equipment; the right to hire and fire; who 

bears responsibility for workmen's compensation insurance; 

the extent to which the employer may exercise control over 

the details of the work, and whether the work was performed 

in the usual and regular course of the employer's business.

Home Ins., 123 Ariz. at 350.

¶15 Contrary to Espitia's contention, neither ALJ was required to 

make a specific finding on the credibility of the witnesses in this case 

because the testimony bearing on whether USW had the right to control 

Espitia's work was not substantially inconsistent. Espitia did not assert

USW officially hired him, and he admitted that when work was slow at 

USW, he worked for an "investor" and another company. Although Espitia 

testified he used USW's or Lewis's equipment, he also admitted – and text 

messages showed – he often brought his own tools to project sites. Espitia 

testified he "would let [Lewis or USW] know" when he planned to take 

vacation days, but he never suggested Lewis or USW needed to approve 

him taking time off. In fact, Espitia testified that when Lewis asked him to 

work on a project, he could have declined the work if he "had a lot of 

money." Finally, Espitia, Lewis and Perry agreed USW paid Espitia by 

check without withholding taxes and did not disagree that Espitia 

performed work in the usual and regular course of USW's business.
ESPITIA v. USW/CAT/SPECIAL FUND 

Decision of the Court

6

¶16 As for Espitia's second argument, the evidence recounted 

above provided substantial support for the following findings by ALJ 

Testini:

Here, the applicant was not hired by USW, did not work 

exclusively for USW, did not use equipment provided by 

USW, did not need to have vacation approved and could 

refuse work without fear of [repercussions]. There is no 

evidence that USW exercised, or had the right to exercise, 

control over the details of the applicant's work. USW paid the 

applicant by check, although no taxes were taken out of the 

checks, and the work performed by the applicant was in the 

usual and regular course of USW's business.

* * *

When all of the evidence is considered in its entirety and upon 

a resolution of the conflicts in the evidence it is found herein 

that applicant has not established by preponderance of the 

evidence that he was a direct or statutory employee of the 

defendant employer, therefore he did not sustain a 

compensable injury on July 14, 2017, as to the defendant 

employer. Applicant is thus not entitled to benefits pursuant 

to the Workers' Compensation Act of the State of Arizona.

¶17 Espitia argues the text messages showed Lewis and Mike 

Perry directed the details of his work, including the time he "was to show 

up and what was to be done." Although the text messages showed Lewis 

directed Espitia to complete certain projects on certain days, the messages 

did not show Lewis controlled the details of Espitia's work or Espitia's

"method of reaching a specific result." Home Ins., 123 Ariz. at 350. In one 

message, Lewis asked Espitia if Espitia wanted to work the following day; 

in another, Espitia asked Lewis whether there will be "any work for this 

week." In a separate series of messages, Lewis asked whether Espitia could

work Tuesday, Wednesday and Friday, to which Espitia responded he 

could work Tuesday, Wednesday and Saturday instead. Additional text 

messages also showed Espitia working independently at job sites without 

supervision from Lewis.

¶18 In sum, the evidence failed to show Lewis or USW controlled 

Espitia's schedule or method of work. Viewed in the light most favorable 

to upholding the ALJ's award, the texts and the testimony support the 

finding that Lewis and USW did not have the right to control Espitia's work
ESPITIA v. USW/CAT/SPECIAL FUND 

Decision of the Court

7

pursuant to § 23-902 and Home Insurance. Accordingly, the ALJ properly 

concluded Espitia was not a direct employee of either Lewis or USW and 

therefore was not entitled to compensation for his injury.2

CONCLUSION

¶19 For the foregoing reasons, we affirm the Decision Upon 

Review.

 

2 By failing to present argument, Espitia has waived any challenge to

the ALJ's conclusion that USW was not Espitia's statutory employer under 

§ 23-902(B). MacMillan v. Schwartz, 226 Ariz. 584, 591, ¶ 33 (App. 2011).