Murillo v. Payroll Express

901 P.2d 751, 120 N.M. 333
CourtNew Mexico Court of Appeals
DecidedMay 24, 1995
Docket15740
StatusPublished
Cited by7 cases

This text of 901 P.2d 751 (Murillo v. Payroll Express) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murillo v. Payroll Express, 901 P.2d 751, 120 N.M. 333 (N.M. Ct. App. 1995).

Opinion

OPINION

BUSTAMANTE, Judge.

This is a worker’s compensation case. Employer appeals, asserting three general issues: (1) Whether the Workers’ Compensation Judge (WCJ) erred in the calculation of Worker’s average weekly wage and compensation rate by not properly accounting for the seasonal nature of the employment and not accurately calculating the Worker’s “real economic gain” from the employment; (2) Whether the WCJ erred by making an “unsupported and immaterial finding of fraud and sham in the agreement between Payroll Express and Leonard Jensen Logging” (referred to collectively as Employer); and (3) Whether the WCJ erred in its determination of the percentage of Worker’s permanent partial disability. We affirm on all issues.

STANDARD OF REVIEW

We apply a whole record standard of review when considering appeals from judgments of the Workers’ Compensation Administration (Administration). Tollman v. ABF (Arkansas Best Freight), 108 N.M. 124, 126-30, 767 P.2d 363, 365-69 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). Whole record review requires us to consider all the evidence properly admitted by the WCJ to determine whether there is substantial support for the judgment. Id. 108 N.M. at 128, 767 P.2d at 367. The entire record is viewed in the light most favorable to the judgment. Martinez v. Southwest Landfills, Inc., 115 N.M. 181, 185, 848 P.2d 1108, 1112 (Ct.App.1993). We do not reweigh the evidence. Herman v. Miners’ Hosp., 111 N.M. 550, 553, 807 P.2d 734, 737 (1991). The possibility that the evidence would support a different result does not require reversal so long as the WCJ could properly reach the decision that was rendered. Gallegos v. City of Albuquerque, 115 N.M. 461, 465, 853 P.2d 163, 167 (Ct.App.), cert. denied, 115 N.M. 535, 854 P.2d 362 (1993). To warrant reversal, this Court must be persuaded it “cannot conscientiously say that the evidence supporting the decision is substantial, when viewed in the light that the whole record furnishes.” Tallman, 108 N.M. at 129, 767 P.2d at 368.

FACTUAL SUMMARY

Jesús Murillo (Worker) is a forty-five year old employee whose entire work history involves heavy, manual labor as a migrant farm worker and in the logging industry, primarily as a logger.

Worker was employed by Leonard Jensen Logging (Jensen Logging) as a logger for a period of two or three years prior to the July 27, 1990 injury which led to this action. Pri- or to that, Worker had worked primarily as a logger since 1977. In the logging industry, loggers are mainly responsible for felling trees. Other workers called loppers are responsible for trimming branches from the trees. Still, other workers — the skid crew— are responsible for moving the cut and trimmed logs to the trucks for eventual hauling to the sawmill.

Of these workers, loggers alone are paid on a piecework basis. Worker was paid $1.50 per log. What constitutes a “log” is defined by industry standards. The loppers and skid crew were paid by the hour. Loggers, such as Worker, were generally required to provide their own tools, in particular power chain saws and attendant accessories, spare parts, fuel, and lubricants. Worker was not reimbursed for his equipment expenses as such. Worker was responsible for providing his equipment and paying his expenses from his piecework pay.

It is unclear whether Worker was required to provide his own equipment pursuant to industry custom or the provisions of the “Cutters Contract” (the Contract) which Worker was required to sign with “Leonard Jensen Logging Company” on or about May 15,1990. Worker testified that he was hired by Leonard Jensen (Jensen) without mention of a written contract. Worker was later presented the Contract to sign. The Contract is written in English and Worker could not read it for himself. However, the gist of the Contract was apparently translated to Worker at least once by the “woods boss,” or foreman, Fidel Martinez (Martinez). Martinez is Jensen’s son-in-law.

The Contract provides generally that: (1) the Worker will be paid “[$]1.50 per thousand board feet of lumber” cut by Worker; (2) Worker shall provide all tools, equipment and supplies required for work under the Contract; (3) Worker shall carry workmens’ compensation insurance on himself and “his employees”; (4) as a service to Worker, Jensen Logging would withhold enough money from Worker’s piece rate compensation to pay worker’s compensation insurance premiums, plus all federal and state withholding and other taxes payable by Worker; and (5) Worker shall perform the work free from any control or right of control by Jensen Logging.

The extent to which the Contract actually controlled or described the legal and working relationship between Jensen Logging and Worker was the subject of much testimony and argument at trial. Employer argued that the Contract created an independent contractor relationship with Worker. Worker argued that he understood he was an employee. The WCJ found Worker was an employee, not an independent contractor. Employer has not appealed this ruling and is now bound by the WCJ’s decision. See Sanchez v. Memorial Gen. Hosp., 110 N.M. 683, 689, 798 P.2d 1069, 1075 (Ct.App.), cert. denied, 110 N.M. 653, 798 P.2d 1039 (1990).

The WCJ also found that Worker was an employee of Payroll Express, Inc. (Payroll). No one has challenged this finding and again all parties are bound by it. Despite this finding, Payroll’s practical, working relationship with Worker and Jensen Logging can reasonably be characterized as murky. Payroll no longer exists and no one from Payroll testified at the trial. Jensen and Worker testified about their understanding of Payroll’s role. Their testimony is consistent with and supportive of the WCJ’s finding that the arrangements between Payroll and Jensen Logging were a sham and an effort to defraud Worker.

Worker testified that he was asked by Jensen to sign an application for employment with Payroll on May 16, 1990; in close proximity to the time he signed the Contract. Worker testified he did not understand the reason or need for signing the employment application with Payroll. Worker never spoke with anyone from Payroll about anything concerning his hire or work thereafter. No one from Payroll was ever on the job site. When injured, Worker reported his injury to Martinez. Worker never spoke with anyone at Payroll about the injury. In sum, from Worker’s perspective, Jensen Logging was his only employer.

Worker testified that he was told he would receive two checks for his total pay. One would come from Payroll and one from Jensen Logging. Martinez, as woods boss, delivered both checks to Worker on payday. Worker was not given any choice with regard to the percentage to be paid through Payroll, and he never understood the reason for receiving two checks.

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Bluebook (online)
901 P.2d 751, 120 N.M. 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murillo-v-payroll-express-nmctapp-1995.