MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                       Jan 30 2020, 10:40 am
regarded as precedent or cited before any
                                                                                   CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Joseph Banasiak                                          Jeffrey Sturm
Highland, Indiana                                        George C. Patrick & Associates
                                                         Crown Point, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

1st Response Automotive                                  January 30, 2020
Repair, 1st Response                                     Court of Appeals Case No.
Towing & Recovery,                                       19A-EX-1571
and Roger Jackson, Jr.,                                  Appeal from the Worker’s
Appellants-Defendants,                                   Compensation Board of Indiana
                                                         The Honorable Linda Hamilton,
        v.                                               Chairman
                                                         Cause No.
Brian Ard,                                               C-228727
Appellee-Plaintiff



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-EX-1571 | January 30, 2020                     Page 1 of 7
[1]   1st Response Automotive Repair (1st Response Repair), 1st Response Towing

      & Recovery (1st Response Towing), and Roger Jackson, Jr. (collectively, “the

      Appellants”), appeal the decision of the Worker’s Compensation Board of

      Indiana (the Board) deeming Brian Ard to be an employee of the Appellants,

      arguing that Ard should have been deemed an independent contractor. Finding

      no error in the Board’s determination, we affirm.


                                                     Facts
[2]   Roger Jackson, Sr., hired Ard to work for 1st Response Repair and 1st

      Response Towing in November 2012. Ard “was hired to do automotive repair,

      tow truck repair, and perform such other mechanical repairs as were needed by

      [the Appellants].” Appellants’ App. Vol. II p. 9. Jackson, Jr., testified that he

      formed 1st Response Repair and 1st Response Towing and that Jackson, Sr.,

      managed the business “day to day[.]” Id. at 12.


[3]   Ard was initially paid in cash, but was later paid by check every Wednesday.

      The Appellants billed customers at $55 per hour, out of which Ard received

      $25. Moreover, “there was no employment agreement between any of [the

      Appellants] and [Ard].” Id. at 12.


[4]   Ard worked Monday through Saturday and used tools owned or provided by

      the Appellants to complete repairs. “[Ard] testified that he did not have any

      control over others who worked for [the Appellants] and did not set his own

      hours.” Id. at 11. Over the course of Ard’s employment, the Appellants ended

      up purchasing parts and supplies that Ard brought to his job. Jackson, Sr., was

      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1571 | January 30, 2020   Page 2 of 7
      Ard’s supervisor and frequently gave him directions about the order in which

      jobs were to be done and the specific type of work that was to be done. Ard

      reported to Jackson, Sr., for all work-related issues. All repair work took place

      at the Appellants’ shop in Merrillville. Additionally, Ard testified that he never

      received nor completed tax documents from the Appellants, including 1099 and

      W-2 forms. There is evidence that Ard filled out tax documents only for the

      2014 fiscal year.


[5]   On January 14, 2015, Ard fell while working in the Appellants’ auto shop,

      “breaking his left femur[.]” Id. at 9. On February 2, 2015, Ard filed an

      adjustment of claim with the Board. Additionally, during the pendency of his

      worker’s compensation claim, Ard filed a separate civil complaint for damages

      on July 1, 2016.


[6]   After a single member of the Board issued an order on the matter on October

      14, 2018, the full Board set the matter for rehearing for April 29, 2019. Soon

      thereafter, on June 12, 2019, the Board issued an order declaring that “[Ard]

      was an employee of [the Appellants] at the time of the injury on January 14,

      2015[.]” Id. at 13. The Board then determined that:


              [Ard] is entitled to receive, and [the Appellants] are jointly and
              severally obligated to pay, all statutory benefits . . . including all
              medical expenses incurred as a result of the accident on January
              14, 2015.


      Id. at 14. The Appellants now appeal.



      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1571 | January 30, 2020   Page 3 of 7
                                   Discussion and Decision
[7]   The Appellants’ sole argument on appeal is that the Board erred when it

      determined that Ard was their employee. The Appellants contend that the

      Board should have deemed Ard to be an independent contractor because (1)

      Ard failed to prove his status as an employee; and (2) Ard allegedly admitted in

      a separate civil lawsuit that he was an independent contractor.


[8]   Our review of decisions coming from the Board is well established:


              The Worker’s Compensation Board, as the trier of fact, has a duty
              to issue findings of fact that reveal its analysis of the evidence and
              that are specific enough to permit intelligent review of its decision.
              Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008).
              “In reviewing a worker’s compensation decision, an appellate
              court is bound by the factual determinations of the Board and may
              not disturb them unless the evidence is undisputed and leads
              inescapably to a contrary conclusion.” Christopher R. Brown,
              D.D.S., Inc. v. Decatur Cty Mem’l Hosp., 892 N.E.2d 642, 646 (Ind.
              2008). We examine the record only to determine whether there is
              substantial evidence and reasonable inferences that can be drawn
              therefrom to support [the Board’s] findings and conclusion. Id. We
              will not reweigh the evidence or reassess witness credibility.
              Triplett, 893 N.E.2d at 1116. “As to the Board’s interpretation of
              the law, an appellate court employs a deferential standard of
              review of the interpretation of a statute by an administrative
              agency charged with its enforcement in light of its expertise in the
              given area.” Brown, 892 N.E.2d at 646. The Board will only be
              reversed if it incorrectly interpreted [the statute]. Id.


      Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009).


[9]   Pursuant to the Indiana Worker’s Compensation Act, the term “employee” is

      defined as any “person, including a minor, in the service of another, under any


      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1571 | January 30, 2020   Page 4 of 7
       contract of hire or apprenticeship, written or implied, except one whose

       employment is both casual and not in the usual course of the trade, business,

       occupation, or profession of the employer.” Ind. Code § 22-3-6-1(b).


[10]   To determine whether an individual is an employee or an independent

       contractor, we analyze the individual’s relationship with the employer under

       the following ten factors:


               (a) the extent of control which, by the agreement, the master may
                   exercise over the details of the work;

               (b) whether or not the one employed is engaged in a distinct
                   occupation or business;

               (c) 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;

               (d) the skill required in the particular occupation;

               (e) whether the employer or the workman supplies the
                   instrumentalities, tools, and the place of work for the person
                   doing the work;

               (f) the length of time for which the person is employed;

               (g) the method of payment, whether by the time or by the job;

               (h) whether or not the work is part of the regular business of the
                   employer;

               (i) whether or not the parties believe they are creating the relation
                   of master and servant; and

               (j) whether the principal is or is not in business.




       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1571 | January 30, 2020   Page 5 of 7
       Howard v. U.S. Signcrafters, 811 N.E.2d 479, 482 (Ind. Ct. App. 2004). “We

       consider all factors, and no single factor is dispositive.” Id.


[11]   Against the backdrop of these factors, the record shows that Ard operated under

       the tutelage and supervision of Jackson, Sr., for nearly three years before he was

       injured on the job in 2015. Ard performed automotive repairs on towed vehicles

       all within the Appellants’ workshop and used tools primarily furnished by the

       Appellants. The Appellants even purchased some of Ard’s tools and supplies

       during his tenure. Jackson, Sr., frequently gave directions to Ard about the

       work that was to be accomplished, constructed the parameters for Ard’s day-to-

       day tasks, and scheduled his working days and hours. Though Ard had one

       principal job of repairing towed vehicles, it is undisputed that Ard spent the

       overwhelming portion of his time working for the Appellants and was paid

       hourly rather than job by job. And while he has specialized skills, Ard

       nevertheless worked for an auto shop that dealt almost exclusively in the same

       line of work—repairs. Finally, at the time of Ard’s injury, the Appellants were

       in business.


[12]   Despite the lack of tax forms, a written employment contract, and a crystal-

       clear understanding of the relationship between Ard and the Appellants, the

       evidence in the aggregate clearly leads to a conclusion that the balance of the

       ten factors weighs in favor of the Board’s conclusion. Therefore, we find that

       the Board did not err in rendering its decision that Ard was an employee and

       not an independent contractor. The Appellants’ attempt to have us reevaluate

       the totality of the evidence in favor of their position amounts to a request that

       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1571 | January 30, 2020   Page 6 of 7
       we reweigh the evidence, which we may not do. There is substantial evidence in

       the record supporting the Board’s determination under the Worker’s

       Compensation Act, and we cannot say that the evidence unerringly leads to a

       conclusion opposite that reached by the Board.


[13]   Furthermore, with regards to the Appellants’ argument that Ard should be

       estopped from claiming that he was an employee because he allegedly admitted

       in a separate civil lawsuit that he was an independent contractor, we find their

       argument to be unavailing. In its findings of fact and conclusions of law, the

       Board considered the separate civil complaint in rendering its ultimate decision

       and nevertheless ruled the way that it did. Once again, we defer to the Board’s

       judgment on these extremely fact-sensitive matters, and there is nothing

       precluding the Board from deciding a matter differently than how a trial court

       might decide it. Given its expertise and authority on such determinations, the

       Board is in the best position possible to make these decisions. Accordingly, we

       hold that the Board did not err.


[14]   The judgment of the Board is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1571 | January 30, 2020   Page 7 of 7
