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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


   DOBIE MATTLY, a single man,**/DOBIE MATTLY, dba TRUCK
               MASTERS PLUS,***, Petitioners,

                                       v.

    THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                 TORY O. BROWN, Respondent Employee,

 FOCUS HR, INC., FOR LEASED WORKERS TO TUCSON TRUX &
EQUIP. SALES, LLC*; PHOENIX TRUX & TRAILER SALES, LLC****,
                     Respondent Employers,

     TRAVELERS PROPERTY AND CASUALTY COMPANY OF
               AMERICA *, Respondent Carrier,

    SPECIAL FUND DIVISION/NO INSURANCE SECTION**,***,
               ****, Respondent Party in Interest.


                            No. 1 CA-IC 15-0021
                             FILED 1-26-2016

                 Special Action – Industrial Commission
                      ICA Claim No. 20132-800344*
                                     20140-090098**
                                     20140-640020***
                                     20140-640163****
                  Carrier Claim No. A127CBETY564-R*
                            NONE **, ***, ****

             JoAnn C. Gaffaney, Administrative Law Judge

                           AWARD AFFIRMED
                   MATTLY v. BROWN/FOCUS et al.
                       Decision of the Court




                                COUNSEL

Keyt Law Office, LLC, Scottsdale
By Norman C. Keyt, Christopher M. Bistany
Counsel for Petitioners

Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent

Taylor & Associates, PLLC, Phoenix
By Briana E. Chua
Counsel for Respondent Employee

Lundmark, Barberich, La Mont & Slavin, P.C., Phoenix
By R. Todd Lundmark
Counsel for Respondent Employer Focus HR, Inc. and Respondent Carrier
Travelers

Special Fund Division/No Insurance Section, Phoenix
By Valli Goss
Counsel for Respondent Party in Interest



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.


D O W N I E, Judge:

¶1           Petitioners Dobie Mattly and Dobie Mattly dba Truck Masters
Plus seek special action review of a workers’ compensation award in favor
of Tory O. Brown. For the following reasons, we affirm.




                                     2
                    MATTLY v. BROWN/FOCUS, et al.
                         Decision of the Court

                 FACTS AND PROCEDURAL HISTORY

¶2            On September 10, 2013, Brown tore his patellar tendon
stepping down from a truck cab. He filed workers’ compensation claims
against four potential employers. All four claims were denied, and Brown
timely appealed the denials. An Administrative Law Judge (“ALJ”)
consolidated the claims for hearing.

¶3            The ALJ held two hearings and heard testimony from Brown
and three other witnesses. The parties thereafter filed post-hearing
memoranda. The ALJ found Brown’s claim compensable, whereupon
Mattly timely requested administrative review. The ALJ supplemented
and affirmed the award. Mattly timely sought this Court’s review. We
have jurisdiction pursuant to Arizona Rule of Procedure for Special Actions
10 and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(2) and 23-
951(A).
                                DISCUSSION

¶4             On appeal, we consider the evidence in the light most
favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’n, 202 Ariz.
102, 105, ¶ 16 (App. 2002). We defer to the ALJ’s factual findings, but review
her determination of Brown’s employment status de novo. See Vance Int’l v.
Indus. Comm’n, 191 Ariz. 98, 100, ¶ 6 (App. 1998). Because the Arizona
Workers’ Compensation Act is remedial in nature, courts broadly construe
the statutory definition of an employee. Hughes v. Indus. Comm’n, 113 Ariz.
517, 519 (1976).

¶5             Mattly initially contends the ALJ’s factual findings were
insufficient to support the conclusion that Brown was not dually employed.
Mattly stresses the following statement included in the initial award:

       6. The remaining issue is whether the applicant was an
       employee of either Dobie Mattly or Drew Harrison or both at
       the time of the industrial accident.

On administrative review, the ALJ recognized that Drew Harrison was not
a party and that the businesses in which Harrison was part owner were the
named parties, stating:

       In the Request for Review, Mattly states that the issue was
       incorrectly stated, because Drew Harrison is not a party to the
       case. Drew Harrison is one of the owners of a party
       defendant. However, the undersigned agrees that the issue


                                      3
                    MATTLY v. BROWN/FOCUS, et al.
                         Decision of the Court

       should read whether applicant was an employee of Focus HR,
       Inc. For Leased Workers of Tucson Trux & Equipment Sales,
       LLC., Dobie Mattly, a single man, Dobie Mattly dba Truck
       Masters Plus, or Phoenix Trux & Trailer Sales, LLC.

¶6            An ALJ has broad power to revise an award. See A.R.S. § 23-
943(F) (ALJ may modify award “as is determined to be appropriate”). Here,
the revision in nomenclature was appropriate, and the initial reference to
Harrison had no effect on the ALJ’s legal analysis of the parties’
relationships. We discern no reversible error based on the initially
imprecise wording.

¶7          Mattly next argues the ALJ should have found that he jointly
or dually employed Brown with Tucson Trux or Phoenix Trux. Joint and
dual employment have been described as follows:

       Joint employment occurs when a single employee, under
       contract with two employers, and under the simultaneous
       control of both, simultaneously performs services for both
       employers, and when the service for each employer is the
       same as, or is closely related to, that for the other. In such a
       case, both employers are liable for workmen’s compensation.

       Dual employment occurs when a single employee, under
       contract with two employers, and under the separate control
       of each, performs services for the most part for each employer
       separately, and when the service for each employer is largely
       unrelated to that for the other. In such a case, the employers
       may be liable for workers’ compensation separately or jointly,
       depending on the severability of the employee’s activity at the
       time of injury.

5 Arthur Larson et al., Larson’s Workers’ Compensation Law § 68.01, at 68-1 to
68-2 (Matthew Bender Rev. Ed. & Supp. 2015) (“Larson’s”), quoted by Growers
Co. v. Indus. Comm’n, 173 Ariz. 309, 313 (App. 1992).

¶8             A prerequisite for joint or dual employment is that the
claimant have a contract of employment with the potential employer — i.e.,
there must be a contract of hire between the parties. See DeVall v. Indus.
Comm’n, 118 Ariz. 591, 592 (App. 1978); Larson’s § 64.00, at 64-1. A contract
of hire is an agreement to work for another for some type of payment. See
Ferrell v. Indus. Comm’n, 79 Ariz. 278, 280–81 (1955). A contract of hire may



                                      4
                   MATTLY v. BROWN/FOCUS, et al.
                        Decision of the Court

be express or may be implied from acceptance of the employer’s direction
and control. Nation v. Weiner, 145 Ariz. 414, 419 (App. 1985).

¶9            In determining whether a claimant falls within the statutory
definition of an employee, courts consider the totality of circumstances
surrounding the work and examine various indicia of control. See Reed v.
Indus. Comm’n, 23 Ariz. App. 591, 593 (1975); see also A.R.S. § 23-901(6)
(defining “employee” for workers’ compensation). Relevant factors include
the duration of the work, the method of payment, who furnishes the
equipment, the right to hire and fire, who bears responsibility for workers’
compensation coverage, 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. Co. v.
Indus. Comm’n, 123 Ariz. 348, 350 (1979).

¶10            Tucson Trux and Phoenix Trux are businesses that buy and
sell trucks. Phoenix Trux did not acquire an Arizona dealership license
until September 19, 2013 — after claimant’s injury. For that reason, any
business occurring before September 19 was conducted by Tucson Trux.
Tucson Trux uses truck brokers, including Mattly, to locate vehicles to buy
and resell at its dealership. When Tucson Trux bought a truck that Mattly
located, Mattly was authorized to use Tucson Trux’s insurance and dealer
plate to transport the vehicle to its dealership. In order for Brown to drive
a truck being transported with Tucson Trux’s insurance, he had to provide
Tucson Trux with a copy of his commercial driver’s license (“CDL”).

¶11            Harrison testified that he met Brown once when he delivered
a truck to Tucson Trux for Mattly. Harrison considered Mattly to be an
independent contractor and Brown to be Mattly’s employee. Tucson Trux
issued IRS 1099 forms to Mattly. For payroll purposes, Focus HR hired all
employees of Tucson Trux and Phoenix Trux, including Harrison. Brown
testified he had no written agreement with anyone. He stated that all of his
contact was with Mattly, who directed his work and paid him.

¶12           The ALJ is not required to make specific findings regarding
every disputed fact as long as he or she resolves the ultimate issues. Cf.
Cavco Indus. v. Indus. Comm’n, 129 Ariz. 429, 435 (1981) (even a lack of
findings on material issues does not necessarily invalidate an award with a
legally sound basis). In determining Brown’s status, the ALJ found, in
pertinent part:




                                     5
                    MATTLY v. BROWN/FOCUS, et al.
                         Decision of the Court

       The applicant filed a claim against Tucson Trux, claiming that
       Mattly and Drew Harrison were partners. The evidence
       shows that these persons had a business relationship to buy
       and sell used semi-trucks. Harrison considered Mattly as an
       independent contractor and hired him to transport the trucks.
       Mattly needed drivers, and therefore, Mattly hired the
       applicant. There is no evidence that Drew Harrison or Focus
       HR hired the applicant. The evidence does not establish that
       Harrison had the right to control the method by which
       applicant performed his duties.

On review, the ALJ supplemented these findings, stating: “Focus HR . . .
did not hire the applicant, enter into a contract with the applicant or control
the method by which applicant performed his work. . . .”

¶13          Evidence of record established that Brown had no express
employment contract with Tucson Trux or Phoenix Trux as of the date of
injury. A reasonable trier of fact could also conclude from the evidence
presented that neither Tucson Trux nor Phoenix Trux had the right to
control the method by which Brown performed his work, so there was no
implied contract of hire. Based on these findings, the ALJ properly
concluded that Tucson Trux and Phoenix Trux were neither joint nor dual
employers.

¶14            Mattly also contends the ALJ should have found that a joint
venture existed that included Brown as a member. A joint venture is
formed when two or more parties agree to pursue a particular enterprise in
hope of sharing a profit. Ariz. Pub. Serv. Co. v. Lamb, 84 Ariz. 314, 317 (1958).
Five elements are required to establish a joint venture: (1) a contract, (2) a
common purpose, (3) a community of interest, (4) an equal right of control,
and (5) participation in both profits and losses. See West v. Soto, 85 Ariz. 255,
261 (1959); see also Estrella v. Suarez, 60 Ariz. 187, 195–96 (1943) (sharing of
profits is necessary to create joint venture).

¶15            The ALJ found Brown’s testimony that he did not intend to
enter into a joint venture to be credible. On the other hand, she expressly
found that “Mattly’s testimony is not credible that there was a verbal
contract between himself and the applicant to establish a joint venture” and
concluded the evidence did not support such a theory. The record supports
the ALJ’s findings, which negate the existence of the requisite contract or
“meeting of the minds” — the threshold requirement for a joint venture.




                                       6
                    MATTLY v. BROWN/FOCUS, et al.
                         Decision of the Court

¶16        Finally, the record supports the determination that Brown
was Dobie Mattly’s employee. The ALJ ruled:

       The undersigned finds that applicant was an employee of
       Dobie Mattly for the following reasons. Mattly was in the
       business of purchasing used semi-trucks for potential buyers.
       He wanted to hire truck drivers to conduct this business. He
       hired the applicant to drive the trucks from point A to point
       B. He paid the applicant for his services and covered the
       applicant’s travel expenses. Mattly furnished the trucks for
       the applicant to drive. Mattly had the right to control the
       method by which the trucks were moved from point A to
       point B. The right to control is evidenced by the fact that
       Mattly kept in touch with the applicant several times per day.
       The applicant kept daily [driving] logs and provided them to
       Mattly. It is true that Mattly did not take taxes out of the
       applicant’s wages and the applicant had preexisting driving
       skills. However, the totality of the facts demonstrates an
       employer/employee relationship.

¶17            The record supports both the ALJ’s factual findings and the
legal conclusions drawn therefrom. “[A] worker who is regularly
employed in the business of an employer is an ‘employee’ for the purposes
of workers’ compensation unless the worker is not subject to the employer’s
control, is hired only to perform a definite job, and is subordinate solely in
effecting a desired result.” Cent. Mgmt. Co. v. Indus. Comm’n, 162 Ariz. 187,
190 (App. 1989). The evidence cited by the ALJ was sufficient to conclude
that Brown was Mattly’s employee.




                                      7
           MATTLY v. BROWN/FOCUS, et al.
                Decision of the Court

                     CONCLUSION

¶18   For the reasons stated, we affirm the award.




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