Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/26/2020 09:08 AM CDT




                                                      - 277 -
                               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 compensa-
                    tion 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 ver-
                    dict 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 work-
                    ers’ 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 dis-
                    pute 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
                                  - 278 -
          Nebraska Supreme Court Advance Sheets
                   306 Nebraska Reports
                   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 with-
   out supervision; (4) the skill required in the particular occupation; (5)
   whether the employer or the one employed supplies the instrumentali-
   ties, 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
                             - 279 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                 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, Aboytes-
Mosqueda 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 home-
owner 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 fre-
quently 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 foot-
age 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 compa-
nies 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.
                            - 280 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                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. Aboytes-
Mosqueda 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 subcon-
tracted 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.
                                  - 281 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                    ABOYTES-MOSQUEDA v. LFA INC.
                         Cite as 306 Neb. 277

Aboytes-Mosqueda asserted that Huerta’s testimony concern-
ing 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 tes-
timony 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 compensa-
tion 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).
                                 - 282 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                    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).
                                    - 283 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                     ABOYTES-MOSQUEDA v. LFA INC.
                          Cite as 306 Neb. 277

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 carry-
      ing into operation any scheme, artifice, or device to
      enable him or her, them, or it to execute work with-
      out 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 subcon-
      tractor, 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 sub-
contractors 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 respon-
sibility 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).
                                     - 284 -
              Nebraska Supreme Court Advance Sheets
                       306 Nebraska Reports
                      ABOYTES-MOSQUEDA v. LFA INC.
                           Cite as 306 Neb. 277

compensation insurance and an employee of the latter sus-
tains a job-related injury, the principal contractor is a statu-
tory 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 sub-
contractor had an obligation to procure workers’ compensa-
tion 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 Aboytes-
Mosqueda is an employee of Huerta under the Nebraska
Workers’ Compensation Act.
   Neb. Rev. Stat. § 48-115 (Reissue 2010) provides the statu-
tory 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 employ-
ment agreement, he did not disclose any details of this agree-
ment, 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. Larsen-
     Merryweather Co., supra note 10.
                                 - 285 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                    ABOYTES-MOSQUEDA v. LFA INC.
                         Cite as 306 Neb. 277

   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 determin-
ing 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 inde-
pendent contractor; rather, the following factors must be con-
sidered: (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 occupa-
tion 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 supervi-
sion; (4) the skill required in the particular occupation; (5)
whether the employer or the one employed supplies the instru-
mentalities, 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 Aboytes-
Mosqueda 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.
                                          - 286 -
              Nebraska Supreme Court Advance Sheets
                       306 Nebraska Reports
                       ABOYTES-MOSQUEDA v. LFA INC.
                            Cite as 306 Neb. 277

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 exclu-
sively 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, includ-
ing 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.
                             - 287 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                 ABOYTES-MOSQUEDA v. LFA INC.
                      Cite as 306 Neb. 277

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 Aboytes-
Mosqueda 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 determina-
tions as to who supplied the safety harnesses, nail gun, and
compressor, but even if we accepted Aboytes-Mosqueda’s tes-
timony 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
                            - 288 -
           Nebraska Supreme Court Advance Sheets
                    306 Nebraska Reports
                 ABOYTES-MOSQUEDA v. LFA INC.
                      Cite as 306 Neb. 277

of the court. 16 The compensation court did not err in conclud-
ing that Aboytes-Mosqueda failed to prove his employee sta-
tus. 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.
