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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND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


                      MICHAEL BLACKMAN, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

         RON CHAPPELL PAINTING, LLC, Respondent Employer,

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


                              No. 1 CA-IC 14-0011
                                FILED 3-3-2015


                    Special Action - Industrial Commission
                         ICA Claim No. 20131-160427
                            Carrier Claim No. None

                Anthony F. Halas, Administrative Law Judge

                             AWARD AFFIRMED



                                    COUNSEL

Taylor & Associates, PLLC, Phoenix
By Weston S. Montrose
Counsel for Petitioner Employee

The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Special Fund Division/No Insurance Section, Phoenix
By Valli Goss
Counsel for Respondent Party in Interest



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Donn Kessler and Judge Kent E. Cattani joined.


T H O M P S O N, Presiding Judge:

¶1             This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review for a noncompensable
claim. The petitioner employee (claimant) presents one issue on appeal:
whether the respondent employer, Ron Chappell Painting, LLC (Chappell),
was an employer subject to the Arizona Workers' Compensation Act.
Because we find that Chappell did not regularly employ any workers at the
time of the claimant’s injury, we affirm the award.

            JURISDICTION AND STANDARD OF REVIEW

¶2             This court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and
Arizona Rules of Procedure for Special Actions 10 (2009).1 In reviewing
findings and awards of the ICA, we defer to the ALJ’s factual findings, but
review questions of law de novo. Young v. Indus. Comm’n, 204 Ariz. 267,
270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light
most favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’n, 202
Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).




1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



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                BLACKMAN v. CHAPPELL/SPEC FUND
                      Decision of the Court

               FACTUAL AND PROCEDURAL HISTORY

¶3             On December 28, 2012, the claimant was painting the interior
of a residence in Arizona City. He was standing on an extension ladder
“trimming out a ceiling,” when the ladder slipped and he jumped off,
injuring his left foot. The claimant sought medical treatment the same day.
He filed a workers' compensation claim, which was denied for benefits by
the respondent party in interest, Special Fund Division/No Insurance
Section (No Insurance).

¶4           The claimant timely protested the denial of benefits, and an
ICA hearing was held. Following the hearing, the ALJ found the claim to
be noncompensable, and the claimant timely requested administrative
review. The ALJ summarily affirmed his ruling, and the claimant brought
this appeal.


                              DISCUSSION

¶5            The evidence in this case established that the claimant had his
own painting business, although he was working for the respondent
employer, Ron Chappell Painting, LLC (Chappell), at the time he was
injured. The claimant had responded to a newspaper advertisement placed
by Chappell for “experienced painters.” He painted two residences for
Chappell: the first in Casa Grande and the second in Arizona City.

¶6            The claimant stated that Chappell gave him directions to each
residence, told him when to arrive, and provided the paint. As was
customary, the claimant provided his own hand tools, brushes, and roller
frames. He testified that he had no written agreement with Chappell, and
there was no discussion of taxes, insurance, or other benefits. The claimant
believed that he had an employer/employee relationship with Chappell
because he was being paid by the hour instead of in a lump sum.

¶7              Timothy and Cindy Fuller met the claimant when they
worked with him at the Arizona City residence. They also had responded
to Chappell’s advertisement for experienced painters with their own tools.
They were “trying out” for Chappell at the Arizona City residence to see if
he liked their painting. Although Chappell paid them by the hour on that
initial job, he paid them in a lump sum on subsequent jobs.

¶8           The Fullers received a combined check made out to Cindy.
No taxes were taken out of their checks, and they had no written agreement


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                 BLACKMAN v. CHAPPELL/SPEC FUND
                       Decision of the Court

with Chappell. They drove their own van to the job sites and provided their
own tools and supplies. Chappell provided only the paint. The Fullers
understood that they were not employees of Chappell, but contractors.
They worked for Chappell on an as-needed basis from December 2012 to
August 2013. During various jobs for Chappell, they met two other painters
working for him in addition to the claimant.

¶9            Ron Chappell testified that he formed his business in 2010.
He stated that he performed approximately one hundred painting jobs
between 2010 and 2012. Chappell testified that he was self-employed, that
he bid on residential interior painting jobs, and that he performed all of his
own jobs unless he was offered too many jobs all at once. When that
occurred, he would contact other contractors to help him on an as-needed
basis and he would pay them a fixed fee for their work. He testified that he
found some of these contractors through placing newspaper
advertisements. He considered the initial job performed by these
contractors to be for the evaluation of their skills. He provided no training
or close supervision because he only used contractors who were
experienced painters.

¶10          Chappell testified that he had no employees in 2012, because
he did not want to deal with insurance, benefits, or vacation. He did not
have a contractor’s license or carry workers’ compensation insurance, and
he did not use a written contract with his subcontractors. The only
information he had for any of the subcontractors was what was necessary
to complete United States Citizenship and Immigration Services Form I-9.

¶11           Chappell testified that when he met the claimant, he
explained:

       [H]e would be given an opportunity - - He had to have his
       own tools, his own ladders, his own drop cloths. He was
       responsible - - I was not providing any insurance, any benefits
       - - that he would be given tasks or jobs . . . . and . . . it would
       be for X amount of dollars per task. . . . So the arrangement
       was designed as a subcontractor where he would be given
       tasks and get paid for the tasks.

He testified that he did not provide the claimant with a 1099 for his 2012
work because it was such a small dollar amount that he wrote it off.

¶12          In order to be entitled to receive workers' compensation
benefits under the Arizona Workers' Compensation Act (Act), a worker


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                BLACKMAN v. CHAPPELL/SPEC FUND
                      Decision of the Court

must have been an employee of an employer subject to the act at the time
of his injury. See A.R.S. §§ 23-901(6) (2014), 23-1021 (Supp. 2013).
Employers subject to the Act are defined by statute to include:

       [E]very person who employs any workers or operatives
       regularly employed in the same business or establishment
       under contract of hire, including covered employees pursuant
       to a professional employer agreement, except domestic
       servants. . . . For the purposes of this subsection, “regularly
       employed” includes all employments, whether continuous
       throughout the year, or for only a portion of the year, in the
       usual trade, business, profession or occupation of an
       employer.

A.R.S. § 23-902(A) (2014).

¶13           This court interpreted the “regularly employed” language
from A.R.S. § 23-902(A) in Donohue v. Industrial Commission, 178 Ariz. 173,
871 P.2d 720 (App. 1993):

       The Legislature used the term “regularly employed” in
       section 23-902(A) to refer to whether it is in the employer’s
       regular or customary business to employ workers, not to whether
       the employee in question is performing a task in the
       employer’s usual trade.

178 Ariz. at 176, 871 P.2d at 723 (emphasis added). We concluded that an
employer is subject to the Act when he employs at least one employee in
the regular course of his business. Id. at 179, 871 P.2d at 726.

¶14           Therefore, the legal question in this case is whether Chappell
regularly employed at least one employee in the regular course of his
business. The ALJ concluded that the record contained insufficient
evidence to establish that Chappell regularly employed any workers.2 This
finding is supported by both Chappell’s and the Fullers’ testimony.


2At oral argument, the claimant argued that he was surprised by the ALJ’s
section 23-902(A) “regularly employed” analysis, and that the issue at the
hearing should have been whether he was an employee vs. an independent
contractor, an issue that the ALJ did not reach. Neither claimant’s request
for review nor his opening brief raised the issue of surprise; it is therefore



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                BLACKMAN v. CHAPPELL/SPEC FUND
                      Decision of the Court


¶15           Chappell explained that he was a self-employed painting
contractor who did all of his own work, unless he was offered too many
jobs at the same time. When that situation occurred, he sought assistance
from other experienced painting contractors who provided their own
equipment and performed the job for a set price. Timothy Fuller testified
that he and Cindy continued to work for Chappell on an as-needed,
occasional basis after the Arizona City job and never considered themselves
to be his employees.

¶16          We believe that the ALJ could conclude from this evidence
that Chappell’s hiring of extra labor in the form of experienced painting
contractors was “only occasional and unpredictable.” See Putz v. Indus.
Comm’n, 203 Ariz. 146, 150, ¶ 20, 51 P.3d 979, 983 (App. 2002). For that
reason, we agree that Chappell was not an employer subject to the Act.

¶17            The claimant argues that the ALJ should have applied Modern
Trailer Sales of Arizona, Inc. v. Industrial Commission, 17 Ariz. App. 482, 498
P.2d 556 (1972) to these facts, but we find it distinguishable. In Modern
Trailer, the employer was a corporation engaged in the business of buying
and selling house trailers from an established business location where the
trailers were displayed. 17 Ariz. App. at 484, 498 P.2d at 558. The
corporation had two full-time, salaried employees. Id. In addition, the
owner estimated that twenty-five percent of the time he employed
additional part-time workers to “help . . . when we got new mobile homes
in,” to clean the trailers, and to perform yard maintenance. Id. This court
held that the employer’s business plan involved the regular hiring of
additional employees, and therefore, it was subject to the Act. Id. at 486,
498 P.2d at 560. Because Chappell did not regularly employ others to carry
out his business plan, we find Modern Trailer inapplicable.




waived. See Special Events Serv., Inc. v. Indus. Comm’n, 228 Ariz. 332, 334 n.
1, ¶ 7, 266 P.3d 358, 360 n.1 (App. 2011).


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       BLACKMAN v. CHAPPELL/SPEC FUND
             Decision of the Court

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




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