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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

ABOYTES-MOSQUEDA v. LFA INC.

Cite as 306 Neb. 277

Cesar Aboytes-Mosqueda, appellant, v. LFA Inc. 

and Ismael Huerta, appellees.

___ N.W.2d ___

Filed June 26, 2020. No. S-19-967.

1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. 

Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, 

reverse, or set aside a Workers’ 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 Workers’ 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. Workers’ Compensation. As the trier of fact, the Workers’ Compensation 

Court is the sole judge of the credibility of witnesses and the weight to 

be given their testimony.

5. Employer and Employee: Independent Contractor: Master and 

Servant. Ordinarily, 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.

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

test for determining whether one performs services for another as an 

Nebraska Supreme Court Online Library

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

08/07/2020 08:07 AM CDT
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ABOYTES-MOSQUEDA v. LFA INC.

Cite as 306 Neb. 277

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.

Appeal from the Workers’ Compensation Court: Julie A. 

Martin, Judge. Affirmed.

John E. Corrigan, of Dowd & Corrigan, L.L.C., for appellant.

James D. Garriott, of Cassem, Tierney, Adams, Gotch & 

Douglas, for appellee LFA Inc.

Antonio VandenBosch, of VandenBosch Law, L.L.C., for 

appellee Ismael Huerta.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

Cesar Aboytes-Mosqueda was working on a roofing job 

when he slipped and fell from the roof. Aboytes-Mosqueda 

brought a workers’ compensation claim against Ismael Huerta 

and LFA Inc. Aboytes-Mosqueda claims that Huerta was his 

employer and that Huerta and LFA conducted a scheme to 

avoid liability under the Nebraska Workers’ Compensation 

Act. Aboytes-Mosqueda claims that LFA should be considered 

a statutory employer pursuant to Neb. Rev. Stat. § 48-116 

(Reissue 2010). The court considered the evidence presented 
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ABOYTES-MOSQUEDA v. LFA INC.

Cite as 306 Neb. 277

and dismissed the claim, because Aboytes-Mosqueda failed to 

prove he was an employee of Huerta. We affirm.

BACKGROUND

Aboytes-Mosqueda was working a roofing job with Huerta 

on June 13, 2018. While working on the roof, AboytesMosqueda slipped and fell, but was caught by his harness. 

Aboytes-Mosqueda suffered a significant injury as a result of 

the fall and brought a claim in the Workers’ Compensation 

Court against Huerta and LFA.

The roofing job was a result of a contract between the homeowner and Hometown Roofing, Inc. (Hometown), who is not 

a party to the case. Hometown subcontracted the job to LFA. 

LFA then arranged with Huerta to recruit a crew to build the 

roof. LFA explained that the people used on a roofing crew 

vary on a job-by-job basis and that each person on the crew is 

an independent subcontractor, not an employee.

The man who operates LFA, which is owned by his wife, 

testified at the workers’ compensation hearing that LFA frequently does work contracted by Hometown and generally 

receives payment for roofing jobs from Hometown by check. 

After receiving payment from Hometown, LFA’s operator 

pays a set amount to a roofing crew based on the square footage of the roof. Each roofing job was a separate agreement. 

LFA did not determine the hours of the roofing crew but 

would inspect the roof to ensure it was installed according to 

the contract.

Huerta’s deposition was entered into evidence in lieu of 

live testimony due to his unavailability. Huerta testified in his 

deposition that he works with several different roofing companies and works on approximately seven to nine houses a year 

with LFA. He indicated that he is not a general contractor and 

that he works as a member of “the crew” alongside everyone 

else. He also testified that Aboytes-Mosqueda worked with 

him on approximately two or three houses a month during 

2018 and did not work with him at all in 2017.
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ABOYTES-MOSQUEDA v. LFA INC.

Cite as 306 Neb. 277

Huerta testified that the customary method for calculating 

pay was based on the number of plywood squares that cover 

the roof, or the rough square footage of the roof. His share of 

what the general contractor pays for the roofing job was always 

the same as the other roofers who worked with him.

At the job where Aboytes-Mosqueda was injured, there 

were five men working on the roofing crew, including Huerta. 

The money received from LFA was split evenly between each 

person on the crew. Huerta claimed that Aboytes-Mosqueda 

brought his own tools and that Huerta provided the ladder to 

access the roof. Huerta claimed that each worker brought his 

own harness. Huerta also testified that each member of the 

crew was free to determine his own schedule for starting and 

stopping work. In his deposition, Huerta testified that LFA 

approached him after the incident and had him sign a contract 

agreeing to carry workers’ compensation insurance.

Aboytes-Mosqueda testified at the hearing that he had 

worked exclusively for Huerta since 2011. Aboytes-Mosqueda 

testified that there was a verbal hiring agreement between 

Huerta and himself, but he also testified that he was paid by 

the job. Aboytes-Mosqueda testified that Huerta would pick 

him up and provided the ladder and several tools, including 

the nail gun and compressor. Aboytes-Mosqueda claims that 

Huerta provided the harnesses and directed every member of 

the crew to use them at all times. Aboytes-Mosqueda admitted 

that he brought his own tool belt, hammer, and knife. AboytesMosqueda also admitted that his pay for each job was the 

result of a verbal agreement with Huerta specific to each job. 

Aboytes-Mosqueda testified that no one saw him slip, but that 

he told Huerta at the jobsite right after the incident.

Aboytes-Mosqueda claimed that Huerta was his employer. 

He further argued to the compensation court that LFA subcontracted jobs with Huerta even though LFA knew that Huerta 

did not carry workers’ compensation insurance. Thus, LFA was 

engaged in a scheme to avoid liability pursuant to § 48-116 

and should be considered a statutory employer as a result. 
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ABOYTES-MOSQUEDA v. LFA INC.

Cite as 306 Neb. 277

Aboytes-Mosqueda asserted that Huerta’s testimony concerning the agreement between Huerta and LFA proved Huerta was 

an employer and that LFA should be found to be a statutory 

employer under § 48-116.

The Workers’ Compensation Court first considered the testimony of Aboytes-Mosqueda and Huerta and found that there 

was not a contract for employment between Aboytes-Mosqueda 

and Huerta. The court then considered the evidence in light 

of the 10 factors relevant to whether a person is an employee 

or an independent contractor. Without making determinations 

of credibility on the issue of who supplied the safety harness, 

nail gun, and compressor at the jobsite, the compensation court 

found that Aboytes-Mosqueda had failed to carry his burden 

of demonstrating that he was an employee of Huerta. Thus, 

§ 48-116 was not applicable. The court dismissed the action, 

and Aboytes-Mosqueda appealed.

ASSIGNMENT OF ERROR

Aboytes-Mosqueda asserts that the district court erred in 

dismissing his action given the uncontroverted evidence of 

a scheme to avoid employer liability under the Nebraska 

Workers’ Compensation Act.

STANDARD OF REVIEW

[1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), 

an appellate court may modify, reverse, or set aside a Workers’ 

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. 1

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

the trial judge of the Workers’ Compensation Court have 

1 Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020).
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ABOYTES-MOSQUEDA v. LFA INC.

Cite as 306 Neb. 277

the effect of a jury verdict and will not be disturbed unless 

clearly wrong. 2 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. 3

[4] As the trier of fact, the Workers’ Compensation Court is 

the sole judge of the credibility of witnesses and the weight to 

be given their testimony. 4

ANALYSIS

[5] In order for LFA to be considered an employer under 

§ 48-116, Aboytes-Mosqueda had a burden to prove that 

he was an employee of Huerta as defined by the Nebraska 

Workers’ Compensation Act. 5 Ordinarily, 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. 6 We find 

that the factual determinations made by the trial court are 

not clearly wrong, and we agree with the compensation court 

that Aboytes-Mosqueda was not an employee of Huerta; thus, 

§ 48-116 is not applicable to this case.

Aboytes-Mosqueda’s only assignment of error is that the 

compensation court erroneously dismissed his claim, because 

the evidence showed a scheme by LFA to avoid liability. 

2 Id.

3 Id.

4 Martinez v. CMR Constr. & Roofing of Texas, 302 Neb. 618, 924 N.W.2d 

326 (2019).

5 See Neb. Rev. Stat. ch. 48, art. 1 (Reissue 2010, Cum. Supp. 2018, & 

Supp. 2019).

6 Pettit v. State, 249 Neb. 666, 544 N.W.2d 855 (1996).
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Aboytes-Mosqueda argues that because LFA had Huerta sign 

an agreement to obtain workers’ compensation insurance after 

Aboytes-Mosqueda was injured, this is proof of the type of 

scheme prohibited by § 48-116.

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.

We have recently explained 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 the Nebraska Workers’ 

Compensation Act. 7 The principal contractor has the responsibility to ensure that the subcontractor obtains a workers’ 

compensation insurance policy. 8 In the event that the principal 

contractor fails to require a subcontractor to carry workers’ 

7 See Martinez v. CMR Constr. & Roofing of Texas, supra note 4.

8 See id. See, also, Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).
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compensation insurance and an employee of the latter sustains a job-related injury, the principal contractor is a statutory employer. 9

Although we have never made this point explicit, it 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. 10 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. 11 Thus, the 

applicability of § 48-116 depends on whether or not AboytesMosqueda is an employee of Huerta under the Nebraska 

Workers’ Compensation Act.

Neb. Rev. Stat. § 48-115 (Reissue 2010) provides the statutory definition for employee. Applicable here is § 48-115(2), 

which states in relevant part: “Every person in the service 

of an employer who is engaged in any trade, occupation, 

business, or profession as described in section 48-106 under 

any contract of hire, expressed or implied, oral or written, 

including aliens and also including minors.” No evidence 

of an express employment contract was provided. Although 

Aboytes-Mosqueda testified that there was a verbal employment agreement, he did not disclose any details of this agreement, nor did he indicate when or where the agreement 

was made.

9 See Martinez v. CMR Constr. & Roofing of Texas, supra note 4.

10 See Bohy v. Pfister Hybrid Co., 179 Neb. 337, 138 N.W.2d 23 (1965). See, 

also, Gardner v. Kothe, 172 Neb. 364, 109 N.W.2d 405 (1961); Standish v. 

Larsen-Merryweather Co., 124 Neb. 197, 245 N.W. 606 (1932).

11 See Martinez v. CMR Constr. & Roofing of Texas, supra note 4. See, also, 

Duffy Brothers Constr. Co. v. Pistone Builders, Inc., 207 Neb. 360, 299 

N.W.2d 170 (1980); Bohy v. Pfister Hybrid Co., supra note 10; Gardner v. 

Kothe, supra note 10; Hiestand v. Ristau, supra note 8; Standish v. LarsenMerryweather Co., supra note 10.
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ABOYTES-MOSQUEDA v. LFA INC.

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There was conflicting testimony about whether there was a 

verbal agreement to create an agency relationship, and we find 

that the compensation court was not clearly wrong in determining there was no mutual intent between Aboytes-Mosqueda 

and Huerta to enter into an employment agreement. 12 Thus, we 

consider whether the compensation court was correct in finding 

Aboytes-Mosqueda was an independent contractor in light of 

the 10 factors set forth by this court. 13

[6] 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. 14

Several of these factors militate against finding that AboytesMosqueda was an employee. Aboytes-Mosqueda testified that 

when he fell from the roof, no one was present because he 

was working alone on that particular section of the roof. 

The compensation court found that Aboytes-Mosqueda was 

12 See Kaiser v. Millard Lumber, 255 Neb. 943, 587 N.W.2d 875 (1999).

13 See Omaha World-Herald v. Dernier, 253 Neb. 215, 570 N.W.2d 508 

(1997).

14 Id.
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working independently when the accident occurred. Moreover, 

it was undisputed that the inspection of the work product at 

the end of each job was done by LFA, not by Huerta. These 

facts are indicative of an independent contractor rather than 

an employee.

Although Aboytes-Mosqueda testified that he worked exclusively for Huerta, the trial court found that Aboytes-Mosqueda 

was free to work with other roofers. Huerta worked with 

Aboytes-Mosqueda on two or three roofs a month during 2018 

and did not work with him at all during 2017. Huerta testified 

that he regularly worked jobs without Aboytes-Mosqueda and 

that Aboytes-Mosqueda was free to decline jobs whenever 

Huerta called and offered work. Aboytes-Mosqueda’s ability to 

accept or decline work on a job-by-job basis is also indicative 

of an independent contractor.

Both the length of time and manner of payment weigh 

heavily against Aboytes-Mosqueda. Aboytes-Mosqueda did not 

contest that he was always paid in cash by the job, and the 

amount was determined on a job-by-job agreement between 

himself and Huerta. Aboytes-Mosqueda received the same 

amount of money as each of the other crew members, including Huerta. Each job was usually only a couple of days, and 

occasionally, they would work two jobs in the same week. 

Based on the length of the jobs and Huerta’s testimony that 

they worked together approximately two or three times a 

month, Aboytes-Mosqueda was actively working at a jobsite 

with Huerta approximately 6 days a month. We have explained 

that the shorter and more sporadic a job is, the more akin it 

is to one performed by an independent contractor. 15 Both the 

length of the jobs and the method of payment are indicative of 

an independent contractor.

As the compensation court noted, there was little to no 

evidence presented concerning several factors. There was 

no evidence addressing whether Aboytes-Mosqueda was a 

15 See Pettit v. State, supra note 6.
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specialist, what the common practice in the locality is, or 

what kind of skill is required to be a roofer. We agree with 

the compensation court that if there were such additional facts 

supporting Aboytes-Mosqueda’s status as an employee, he had 

the burden to present them.

The only factor upon the evidence presented that weighs 

in favor of considering Aboytes-Mosqueda an employee is 

the fact that roofing is a part of the regular business or trade 

of Huerta. However, Huerta testified that he did not hold 

himself out to be a business and no evidence was presented 

to contradict his testimony. There was conflicting testimony 

concerning who supplied the safety harnesses and some of 

the tools. There was also disagreement over whether work 

hours were set by Huerta or as a crew. It was uncontested 

that Aboytes-Mosqueda brought his own tool belt, hammer, 

and knife. Aboytes-Mosqueda claims that Huerta provided 

transportation to the jobsite, which demonstrates control over 

the work hours. The compensation court found that AboytesMosqueda was free to work or stop working at will and that the 

amount of time spent on a job was the result of consensus by 

the crew.

The compensation court did not make factual determinations as to who supplied the safety harnesses, nail gun, and 

compressor, but even if we accepted Aboytes-Mosqueda’s testimony that Huerta supplied these tools, such facts would not 

be sufficient to establish that Aboytes-Mosqueda was in fact 

an employee. The majority of the factors, including the extent 

of control Huerta exercised over Aboytes-Mosqueda, support 

the conclusion that Aboytes-Mosqueda was not an employee 

of Huerta as defined by the Nebraska Workers’ Compensation 

Act. The compensation court did not clearly err in making this 

determination. Thus, § 48-116 does not apply to this case and 

whatever agreements did or did not occur between Huerta and 

LFA following Aboytes-Mosqueda’s injury are irrelevant. The 

plaintiff, in the Workers’ Compensation Court, must prove 

that she or he has employee status to invoke the jurisdiction 
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of the court. 16 The compensation court did not err in concluding that Aboytes-Mosqueda failed to prove his employee status. Thus, it did not err in dismissing the action.

CONCLUSION

The Workers’ Compensation Court did not clearly err in its 

determination that Aboytes-Mosqueda was not an employee 

of Huerta. As a result, § 48-116 is inapplicable to the present 

case. The judgment of the Workers’ Compensation Court is 

affirmed.

Affirmed.

16 Id.