                IN THE SUPREME COURT, STATE OF WYOMING

                                    2014 WY 35

                                                    OCTOBER TERM, A.D. 2013


                                                            March 11, 2014


IN THE MATTER OF THE WORKER’S
COMPENSATION CLAIM OF TARA L.
KOBIELUSZ:

CIRCLE C RESOURCES, INC.,

Appellant
(Petitioner),

v.
                                                      No. S-13-0085
TARA L. KOBIELUSZ,

and

STATE OF WYOMING, ex rel., WYOMING
WORKERS’ SAFETY AND COMPENSATION
DIVISION,

Appellees
(Respondents).

                   Appeal from the District Court of Natrona County
                     The Honorable Catherine E. Wilking, Judge

Representing Appellant:
       Keith R. Nachbar, Keith R. Nachbar, P.C., Casper, Wyoming.

Representing Appellee, Tara L. Kobielusz:
      P. Craig Silva, Williams, Porter, Day and Neville, P.C., Casper, Wyoming.

Representing Appellee, Wyoming Workers’ Safety and Compensation Division:
      No appearance.
Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.

*Justice Voigt retired effective January 3, 2014.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] Appellant, Circle C Resources, Inc. (“Circle C”), challenges a decision from the
Office of Administrative Hearings awarding worker’s compensation benefits to Appellee,
Tara Kobielusz. Circle C contends the hearing examiner erred in finding that
Ms. Kobielusz was Circle C’s employee, rather than an independent contractor. We
affirm.

                                                 ISSUE

[¶2] Was the hearing examiner’s determination that Ms. Kobielusz was not an
independent contractor as defined by Wyo. Stat. Ann. § 27-14-102 (a)(xxiii) supported by
substantial evidence?1

                                                FACTS

[¶3] Circle C Resources provides living assistance services for persons with
developmental disabilities. The business is co-owned by Joyce Rainbolt, who serves as
Circle C’s Chief Financial Officer, and Patricia Kolarik, who serves as its Director.
Ms. Kobielusz began working for Circle C as a “day habilitation” provider in February,
2005. Soon after beginning her employment, Ms. Kobielusz began providing case
management services for Circle C’s clients. As a case manager, Ms. Kobielusz helped
create the clients’ individual care plans and visited the clients in their homes on a
monthly basis. In July, 2010, Ms. Kobielusz began working for Circle C as a “host
family provider” (HFP), and she continued in that role until January, 2011, when Circle C
terminated her employment.

[¶4] In December, 2010, as Ms. Kobielusz was entering Circle C’s office to pick up
Circle C’s clients from their day habilitation program, she fell and broke her ankle. The
Division issued a final determination on February 1, 2011, finding that Ms. Kobielusz
had experienced a compensable injury. Circle C objected to the Division’s final
determination and requested a contested case hearing before the Office of Administrative
Hearings (OAH). At the hearing, Circle C objected to the Division’s final determination
on the grounds that Ms. Kobielusz was not an employee, but rather an independent
contractor. Circle C also questioned whether Ms. Kobielusz had incurred her injury in
the manner she claimed.2


1
  Circle C also contends that the hearing examiner misapplied the law in determining that Ms. Kobielusz
was not an independent contractor. We address that question in our resolution of the substantial evidence
issue.
2
    In this appeal, Circle C does not challenge the hearing examiner’s findings regarding the manner and




                                                    1
[¶5] Following the hearing, the OAH issued an order upholding the Division’s final
determination. The OAH concluded that Ms. Kobielusz was an employee of Circle C
while providing host family services, and that she had experienced a compensable injury.
Circle C challenged the OAH’s decision in district court, and the district court affirmed.3
This timely appeal followed.

                                     STANDARD OF REVIEW

[¶6] When we consider an appeal from a district court’s review of an administrative
agency’s decision, we review the case as though it had come directly from the
administrative agency. Guier v. Teton County Hosp. Dist., 2011 WY 31, ¶ 12, 248 P.3d
623, 629 (Wyo. 2011). Whether a worker is an employee or an independent contractor is
generally a question of fact:

                    There is ample law that says the jury or other fact finder
                    determines a disputed issue of whether a party is an employee
                    or an independent contractor. 41 Am. Jur. 2d Independent
                    Contractors § 69 (2005 and 2009 Cum. Supp.). It is only
                    when the evidence is susceptible to but a single inference that
                    the Court rules as a matter of law. Id.

Singer v. New Tech Eng’g L.P., 2010 WY 31, ¶ 10, 227 P.3d 305, 310 (Wyo. 2010). We
review an administrative agency’s findings of fact pursuant to the substantial evidence
test. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo. 2008).
Substantial evidence is relevant evidence which a reasonable mind might accept in
support of the agency’s conclusions. Id., ¶ 11, 188 P.3d at 558. Findings of fact are
supported by substantial evidence if, from the evidence in the record, this Court can
discern a rational premise for the agency’s findings. Middlemass v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2011 WY 118, ¶ 11, 259 P.3d 1161, 1164 (Wyo. 2011).
When the burdened party prevailed before the agency, we will determine if substantial
evidence exists to support the finding for that party by considering whether there is
relevant evidence in the entire record which a reasonable mind might accept in support of
the agency’s conclusions. Dale, ¶ 22, 188 P.3d at 561. We review an agency’s
conclusions of law de novo. Id., ¶ 26, 188 P.3d at 561.




extent of injury.
3
  The Division filed a notice of non-participation in the appeal, stating that it “does not believe that there
is a sufficient legal issue that would require further briefing.”




                                                      2
                                     DISCUSSION

[¶7] The Wyoming Worker’s Compensation Act extends benefits only to employees.
Wyo. Stat. Ann. § 27-14-104(a) (LexisNexis 2011). The Act’s definition of an employee
excludes independent contractors. Wyo. Stat. Ann. § 27-14-102(a)(vii)(D). The Act sets
forth the following three-part test for determining whether an individual qualifies as an
independent contractor:

             (xxiii) “Independent contractor” means an individual who
             performs services for another individual or entity and:

                    (A) Is free from control or direction over the details of
                    the performance of services by contract and by fact;

                    (B) Repealed by Laws 1998, ch. 117, § 2.

                    (C) Represents his services to the public as a self-
                    employed individual or an independent contractor; and

                    (D) May substitute another person to perform his
                    services.

Wyo. Stat. Ann. § 27-14-102(a)(xxiii). We have not previously had occasion to interpret
this statute in determining whether an individual qualifies as an “independent contractor”
under the meaning of the Worker’s Compensation Act. We have previously recognized,
however, that when interpreting statutes, the word “and” is conjunctive. Clark v. State ex
rel. Wyo. Workers’ Safety and Comp. Div., 968 P.2d 436, 438 (Wyo. 1998). “Webster’s
recognizes that the word ‘and’ is ‘used in logic as a sentential connective that forms a
complex sentence which is true only if both constituent sentences are true.’” Prickett v.
Prickett, 2007 WY 153, ¶ 11, 167 P.3d 661, 664 (Wyo. 2007) (emphasis omitted)
(quoting Webster’s New Collegiate Dictionary 43 (1977)). Accordingly, Wyo. Stat. Ann.
§ 27-14-102(a)(xxiii) establishes a three-part test, each element of which must be
satisfied in order for an individual to qualify as an independent contractor.

[¶8] The first element relates to the degree of control exercised over the performance of
services. The Worker’s Compensation Act does not define “control” as that term is used
in Wyo. Stat. Ann. § 27-14-102(a)(xxiii)(A). The concept of control, however, has been
addressed extensively at common law, which gives “overriding consideration” to “the
employer’s right to control the means and manner of the work” in determining whether a
worker is an employee or an independent contractor. Diamond B Svcs., Inc. v. Rohde,
2005 WY 130, ¶ 28, 120 P.3d 1031, 1041 (Wyo. 2005). This precedent is relevant in
determining whether Wyo. Stat. Ann. § 27-14-102(a)(xxiii)(A) is satisfied because “the
employer’s right to control the means and manner of the work” bears very close


                                            3
resemblance to the statutory requirement of freedom from “control or direction over the
details of the performance of services.”

[¶9] Our precedent has explained the concept of control in the context of
employer/employee relationships as follows:

             In examining the extent of the employer’s control over the
             worker in this instance, it is important to distinguish control
             over the means and manner of the work from control over the
             end product of the work to be performed. Diamond B
             Services, Inc. v. Rohde, 2005 WY 130, ¶ 28, 120 P.3d 1031,
             1041 (Wyo. 2005). An independent contractor is one who, in
             the course of an independent occupation or employment,
             undertakes work subject to the will or control of the person
             for whom the work is done only as to the result of the work
             and not as to the methods or means used. Id., ¶ 27, 120 P.3d
             at 1041. When a worker is an independent contractor, the
             employer is typically interested only in the results of the work
             and does not direct the details of how the work is performed.

Singer, ¶ 14, 227 P.3d at 311 (emphasis omitted). Further, regarding the difference
between control of the “means and manner” of performance and the “result” of the work
performed, we have stated:

                    The employer may exercise a limited control over the
                    work without rendering the contractor a mere servant
                    or employee, as a relation of master and servant or
                    employer and employee is not inferable from a
                    reservation of powers which do not deprive the
                    contractor of his right to do the work according to his
                    own initiative, so long as he does it in accordance with
                    the contract. The control of the work reserved in the
                    employer which affects a master-servant relationship
                    is control of the means and manner of performance of
                    the work, as well as of the result; an independent
                    contractor relationship exists where the person doing
                    the work is subject to the will of the employer only as
                    to the result, but not as to the means or manner of
                    accomplishment. . . . A requirement that the work be
                    performed according to standards and specifications
                    imposed by the owner is not sufficient to establish the
                    degree of control necessary to make a presumably
                    independent contractor the agent of the owner, but the


                                            4
                    retention of the right not only to insure conformity with
                    specifications, but also the retention or exercise of the
                    right to direct the manner in or means by which the
                    work shall be performed, will destroy the independent
                    status of the contractor.

             41 AM. JUR. 2D Independent Contractors § 8 (1968)
             (emphasis added).

Natural Gas Processing Co. v. Hull, 886 P.2d 1181, 1185 (Wyo. 1994).

[¶10] Circle C acknowledges that it exercised some degree of control over
Ms. Kobielusz’s services as a host family provider. Circle C claims, however, that its
control over Ms. Kobielusz “was directed at the result of the work and not the methods or
means used.” It attempts to characterize all of the control exercised over the performance
of Ms. Kobielusz’s services as the result of state or federal regulation. According to
Circle C, “so long as [the] ultimate outcome or goal of compliance with the plan of care
and the Medicaid, [the Commission on Accreditation of Rehabilitation Facilities], and
State rules were achieved, Circle C had no interest in how Ms. Kobielusz ran her business
caring for the clients.” We do not agree. There is ample evidence in the record to
support the hearing examiner’s conclusion that Circle C controlled the details of
Ms. Kobielusz’s performance of services beyond that required by state or federal
regulation.

[¶11] As indicated by Wyo. Stat. Ann. § 27-14-102(a)(xxiii)(A), our first area of inquiry
focuses on the written agreements entered into by Circle C and Ms. Kobielusz. As we
have previously noted, “Although the contract is not conclusive evidence of the status of
the relationship between parties, it is a strong indication of the association intended.”
Natural Gas Processing Co., 886 P.2d at 1184. During the time Ms. Kobielusz worked
as an HFP, she entered into two Host Family Provider Agreements with Circle C. The
two Agreements were virtually identical. The Agreements enumerated 32 separate
responsibilities to be performed by Ms. Kobielusz. Among other responsibilities,
Ms. Kobielusz was required to (1) provide 24-hour support and supervision for Circle C’s
clients, and to provide a “clean, comfortable environment including access to laundry
facilities, clean linen and . . . private bedroom[s];” (2) provide three meals a day and
reasonable between-meal snacks, “including preparation of special diets as dictated by a
physician;” (3) comply with “identified medical needs” and provide transportation to all
appointments and activities; (4) report immediately any medical issue to Circle C; (5)
maintain twelve different categories of records relating to Circle C clients and her
activities as an HFP; (6) check her mailbox at Circle C’s office on a weekly basis; (7)
attend mandatory HFP meetings and mandatory monthly HFP trainings; (8) make the
host home available for inspection without notice; (9) participate in the development and
implementation of individual care plans with a team of Circle C staff members, “follow


                                            5
any changes made by the Team,” and “utilize the Team process as a means of
communication and advocacy;” (10) seek Circle C’s approval for “any changes in the
home environment,” including extended visitations, sleeping arrangements, and
additional occupants; and (11) abide by Circle C’s Policy and Procedure Manual.

[¶12] Each of the Agreements identified Ms. Kobielusz as an “independent entity who
will comply with all federal and state regulations concerning self-employment, worker’s
compensation insurance and unemployment.” Both Agreements provided, however, that
“Any party may terminate this agreement by giving the other party 60 days written notice
of its intention to terminate this agreement with or without cause.” Additionally, the
second HFP Agreement, executed in October, 2010, contained the following provision:
“THIS AGREEMENT DOES NOT, AND IS NOT INTENDED TO CREATE A
CONTRACT OF EMPLOYMENT FOR ANY TERM. ALL EMPLOYMENT WITH
THIS EMPLOYER IS AT WILL AND MAY BE TERMINATED AT ANY TIME FOR
ANY REASON AND WITHOUT ANY CAUSE.” Notably, we have previously held
that “[T]he right to terminate the services at will without incurring liability to the other,
this embracing, of course, the right of the employer at any time to discharge the party
performing the work . . . establish[es] the status of master and servant.” Coates v.
Anderson, 2004 WY 11, ¶ 8, 84 P.3d 953, 957 (Wyo. 2004).

[¶13] Additionally, our precedent indicates that the “method of payment” is a factor to
be considered in evaluating the degree of control exercised over the performance of a
worker’s services.

              With regard to the “method of payment” criterion, an
              independent contractor usually determines the price of his
              services and bills for his services on a regular basis. Noonan
              [v. Texaco, Inc.], 713 P.2d [160,] 166 [(Wyo. 1986)], citing
              Simpson v. Home Petroleum Corp., 770 F.2d 499, 501 [(5th
              Cir. Tex. 1985)]; Combined Insurance [Co. v. Sinclair], 584
              P.2d [1034,] 1043 [(Wyo. 1978)]. On the other hand, when
              the employer determines the worker’s rate of pay and takes
              deductions out of his paychecks for federal income taxes,
              Social Security, and Medicare then a master-servant
              relationship is indicated. Id. We have said that payment of
              workers’ compensation and unemployment insurance
              premiums by an employer suggests that the worker is an
              employee rather than an independent contractor. See In re:
              Claims of Naylor, 723 P.2d 1237, 1240-41 (Wyo. 1986); In re
              Reed, 444 P.2d 329, 330 (Wyo. 1968). Similarly, when a
              worker is eligible to participate in benefit programs such as
              retirement or insurance plans, as a result of his association
              with the employer, it suggests a master-servant relationship


                                             6
              exists. Combined Insurance, 584 P.2d at 1043.

Diamond B Svcs., Inc., ¶ 30, 120 P.3d at 1042. In the present case, Circle C did not
withhold taxes from Ms. Kobielusz’s paycheck. However, Circle C determined her rate
of pay. The Host Family Provider Agreements specified that Circle C would determine
Ms. Kobielusz’s rate of pay based on the number of clients in the host home. According
to the Agreements, “If the 2 person Host Home changes to a 1 person Host Home the
difficulty of care payment may be adjusted accordingly, with the difficulty of care
payment being the next lowest to the current difficulty of care payment.” Ms. Rainbolt
stated that the difficulty of care payment was a “set amount” that was determined by
Circle C. Further, Ms. Kobielusz was required to keep track of her hours on time sheets,
and any vacation time had to be approved by Circle C. She was permitted one weekend
off per month and was subject to a decrease in pay for any time off beyond that weekend.

[¶14] The evidence introduced at the contested case hearing also indicates that Circle C
exercised control over the details of Ms. Kobielusz’s services in “fact.” In its brief,
Circle C notes that Ms. Kobielusz had control over meals and recreational activities, and
asserts that she “had full control over her home and the way she cared for her clients.” In
reality, however, Circle C had a large role in determining the parameters of the care
provided by Ms. Kobielusz. Each of Circle C’s clients’ individual care plans, including
those applicable to the clients living with Ms. Kobielusz, was created by a “team”
consisting of Circle C staff members, including Circle C’s day habilitation providers and
case managers. The care plans identified each of the clients’ individual needs and
included information relating to appropriate activities, medical histories, and
rehabilitative goals. The care plans also established daily schedules that were designed to
meet the needs of Circle C’s clients. Further, Ms. Kobielusz stated that she had to
receive permission from Circle C to take clients to special functions not indicated in the
individual care plans. Ms. Rainbolt testified that Ms. Kobielusz’s personnel file indicated
that she had been reprimanded for failing to follow a client’s plan of care.

[¶15] Circle C also notes that Ms. Kobielusz was required to furnish her own tools and
equipment for fulfilling her responsibilities under the Host Family Provider Agreements.
Circle C points out that, despite the fact that Circle C made vehicles available to its host
family providers, Ms. Kobielusz used her car to transport Circle C’s clients. Although
Ms. Kobielusz chose to furnish her own vehicle to transport Circle C’s clients, Circle C
exercised a significant degree of control over the host home in which Ms. Kobielusz
worked. Notably, Circle C leased the home in which Ms. Kobielusz and Circle C’s
clients lived. According to Ms. Rainbolt and Ms. Kolarik, Circle C had leased
Ms. Kobielusz’s host home for approximately 10 years prior to Ms. Kobielusz’s
occupation of the home. Circle C’s lease specified that “The property may only be used
by Circle C Resources,” and that “the property shall be used only by Circle C [R]esources
clients as their residence.” Before Ms. Kobielusz moved into the home, Circle C’s
employees completed extensive renovations in the home that involved painting, floor


                                             7
replacement, mold removal, and a remodel of the kitchen. Circle C supplied all
appliances in the home, as well as some furnishings, and Circle C was ultimately
responsible for paying utilities under the terms of its lease. Further, Ms. Rainbolt
acknowledged that if either party terminated Ms. Kobielusz’s services, she would have to
move out of the residence. When Circle C terminated Ms. Kobielusz’s services, she was
required to vacate the host home and was not permitted to continue providing services for
Circle C’s clients. Taken together, the facts set forth above provide substantial evidence
to support the conclusion that Ms. Kobielusz was not, by contract or by fact, free from
control over the details of the performance of her services under Wyo. Stat. Ann. § 27-
14-102(a)(xxiii)(A).

[¶16] Because we find substantial evidence to support the hearing examiner’s
determination that Ms. Kobielusz was not “free from control or direction over the details
of the performance of services,” we need not determine whether substantial evidence
supports the hearing examiner’s findings with respect to the remaining elements set forth
in Wyo. Stat. Ann. § 27-14-102(a)(xxiii). Nonetheless, we note that the evidence relating
to the remaining elements also indicates that Ms. Kobielusz was not an independent
contractor at the time of her injury. We will address each of those elements in turn.

[¶17] With respect to the second statutory element, relating to representation of services
to the public, Circle C notes that Ms. Kobielusz “was actively performing work as an
independent contractor in other capacities at the very same time she was performing
services as a host family provider.” Specifically, Circle C asserts that she was working as
a case manager for individuals other than Circle C’s clients. Circle C also notes that
Ms. Kobielusz “independently ran a business renting rooms and providing board to the
host family clients for whom she was providing host family services.” According to
Circle C, “Given these undisputed facts, it was completely unreasonable for the hearing
examiner below to conclude that Ms. Kobielusz was not representing her services to the
public as a self-employed individual.” We do not agree.

[¶18] As conceded by Circle C, Ms. Kobielusz was performing work as an independent
contractor in other capacities during the time she was providing services as a host family
provider. However, Circle C fails to recognize our precedent stating that “The
authorities, without any noticed dissent, hold that a person may be an independent
contractor in some work and an employee in other work for the same employer . . . .”
Burnett v. Roberts, 121 P.2d 896, 900 (Wyo. 1942). In this case, the fact that
Ms. Kobielusz may have been an independent contractor in jobs other than host family
provider has no bearing on the issue of whether she represented her services to the public
as a host family provider. There is no evidence in the record that Ms. Kobielusz
represented herself as able to provide host family services as an independent contractor.
Ms. Kobielusz testified that she did not advertise herself as a host family provider.
Ms. Kolarik corroborated this testimony when she stated that she was not aware of any
advertisement of host family provider services by Ms. Kobielusz. We also note that this


                                            8
fact is consistent with the existence of a Confidentiality and Noncompetition Agreement
entered into by Ms. Kobielusz and Circle C. That Agreement identified the parties as
“employer” and “employee” and stated that

             Employer has employed employee to devote his or her full
             time, attention, and energies to the business of employer and
             to use his or her best efforts, skill, and abilities in performing
             the specific duties of such employment, and employee shall
             not, without prior written consent of employer, either directly
             or indirectly, engage in any other occupation, profession, or
             business.

Under the Agreement, Ms. Kobielusz was prohibited from engaging or assisting any
business that competed with Circle C in seven different counties for a period of 24
months, and was prohibited from soliciting or encouraging any clients “to use or engage
services of any of employer’s competitors who provide similar services in any geographic
area in which employer markets or has marketed its services during the year preceding
separation from employment.” Ms. Rainbolt acknowledged that Ms. Kobielusz would
have violated the Agreement by bringing her own clients into the host home. Further,
Ms. Kolarik testified that Ms. Kobielusz was not providing host family services to any of
Circle C’s competitors in the area. Ms. Kolarik testified that Ms. Kobielusz “did not have
an independent provider number [from the Wyoming Department of Health] for services
and stuff. That was all done under us. So from that point of view she really couldn’t
market herself as [an] independent provider.” Each of these facts indicates that
Ms. Kobielusz did not represent her services to the public as a self-employed individual
or an independent contractor to any meaningful end. The hearing examiner’s
determination that Ms. Kobielusz did not represent her services to the public as a self-
employed individual or an independent contractor under Wyo. Stat. Ann. § 27-14-
102(a)(xxiii)(C) is supported by substantial evidence.

[¶19] We turn, then, to the third statutory element, relating to the worker’s ability to
“substitute another person to perform his services.” We note that the statute does not
provide any guidance as to whether the ability to substitute another individual must be
personal to the worker. Our research reveals that this is not a commonly used element in
determining whether a worker is an employee or an independent contractor. However,
decisions from jurisdictions that consider this element indicate that the independent
contractor must have the ability to select his or her substitute. See Rustler Lodge v.
Industrial Comm’n, 562 P.2d 227, 228 (Utah 1977) (“An independent contractor can
employ others to do the work and accomplish the contemplated result without the consent
of the contractee, while an employee cannot substitute another in his place without the
consent of the employer.”); Talley v. Bowen Constr. Co., 340 S.W.2d 701 (Mo. 1960);
Odle v. Charcoal Iron Co., 187 N.W. 243 (Mich. 1922). In the present case, the Host
Family Provider Agreements stated that Circle C would arrange for a substitute if


                                             9
Ms. Kobielusz was unable to render services due to illness or vacation. According to the
Agreements, Ms. Kobielusz was “entitled to no more than one weekend per month off . . .
with Circle C Resources providing backup staffing arrangements.” Ms. Rainbolt
confirmed that Ms. Kobielusz was not free to substitute another person of her choosing to
perform host family provider services. Because Ms. Kobielusz did not have the ability to
select a substitute to perform her services, we conclude that the evidence supports the
hearing examiner’s finding that Ms. Kobielusz was not “an individual who . . . [m]ay
substitute another person to perform his services” under Wyo. Stat. Ann. § 27-14-
102(a)(xxiii)(D).

[¶20] Finally, Circle C contends the hearing examiner’s decision was “not in accordance
with the law” because the hearing examiner “resort[ed] to an analysis far beyond the
factors in the statutory definition of independent contractor found in the Wyoming
Worker’s Compensation Act.” Specifically, Circle C contends the hearing examiner
erred in considering common law factors used to determine whether a person is an
independent contractor, including the factors of whether Ms. Kobielusz was an “at will”
employee, whether she provided her own “tools and equipment,” and the nature of Circle
C’s “method of payment,” none of which, according to Circle C, are properly considered
under the statutory definition of an independent contractor. Circle C also contends the
hearing examiner erred in relying on case law to elevate the importance of “control of
performance of services” as compared to the two other statutory elements. We find no
prejudice to Circle C in the hearing examiner’s analysis.

[¶21] In contrast to the statutory test, the common law sets forth a multi-factor test,
which weighs the relevant factors against one another. We have summarized that test as
follows:

             The overriding consideration in distinguishing between
             master-servant relationships and employer-independent
             contractor relationships is the employer’s right to control the
             means and manner of the work. See, e.g., Stratman v. Admiral
             Beverage Corp., 760 P.2d 974, 980 (Wyo. 1988); Cline v.
             State, Dep’t. of Family Services, 927 P.2d 261, 263 (Wyo.
             1996); Noonan v. Texaco, Inc., 713 P.2d 160, 164 (Wyo.
             1986).

                    Such a right to control is a prerequisite of the master-
                    servant relationship. Conversely, the absence of such a
                    right of control is a prerequisite of an independent
                    contractor     relationship.     Master-servant     and
                    independent contractor are thus opposite sides of the
                    same coin; one cannot be both at the same time with
                    respect to the same activity; the one necessarily


                                           10
                    negatives the other, each depending on opposite
                    answers to the same right of control inquiry.

             Coates v. Anderson, 2004 WY 11, ¶ 7, 84 P.3d 953, 957
             (Wyo. 2004). When a worker is an independent contractor,
             the employer is typically interested only in the results of the
             work and does not direct the details of . . . how the work is
             performed. Noonan, 713 P.2d at 166; Natural Gas Processing
             Co. v. Hull, 886 P.2d 1181, 1186 (Wyo. 1994).

             When an express contract exists between the parties, it is
             important evidence in defining the relationship, although it is
             not conclusive of the issue. Coates, ¶ 14; Noonan, 713 P.2d at
             164. Other factors which are important to the determination
             include: the method of payment, the right to terminate the
             relationship without incurring liability, the furnishing of tools
             and equipment, the scope of the work, and the control of the
             premises where the work is to be done. Stratman, 760 P.2d at
             980; Combined Insurance, 584 P.2d at 1043. Another factor
             to be considered is whether the worker devotes all of his
             efforts to the position or if he also performs work for others.
             Id.

Diamond B Svcs., ¶¶ 28-29, 120 P.3d at 1041-42.

[¶22] As noted above, the first element of the statutory test, relating to “control or
direction over the details of the performance of services,” is very similar to “the
employer’s right to control the means and manner of the work.” Accordingly, despite the
differences in the common law and statutory tests for determining whether a worker is an
employee or an independent contractor, we find that in the context of a worker’s
compensation claim, it is not inappropriate to consider the common law factors as they
relate to “control or direction over the details of the performance of services.” We note
that there is nothing in Wyo. Stat. Ann. § 27-14-102(a)(xxiii) indicating that the statute
precludes consideration of those factors. Each of the common law factors considered by
the hearing examiner in this case, including the method of payment, the right to terminate
the relationship without incurring liability, and the furnishing of tools and equipment,
indicates a degree of “control or direction” over Ms. Kobielusz’s services. Accordingly,
each of these factors was relevant in determining whether Wyo. Stat. Ann. § 27-14-
102(a)(xxiii)(A) was satisfied. Ultimately, because the evidence supports the hearing
examiner’s findings that none of the elements of Wyo. Stat. Ann. § 27-14-102(a)(xxiii)
were satisfied in this case, we find no prejudice as a result of the hearing examiner’s
analysis.



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[¶23] Affirmed.




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