Soloman v. Dayton Window & Door Co., L.L.C.

2011 Ohio 6182, 961 N.E.2d 1229, 196 Ohio App. 3d 16
CourtOhio Court of Appeals
DecidedDecember 2, 2011
Docket24200
StatusPublished
Cited by4 cases

This text of 2011 Ohio 6182 (Soloman v. Dayton Window & Door Co., L.L.C.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Soloman v. Dayton Window & Door Co., L.L.C., 2011 Ohio 6182, 961 N.E.2d 1229, 196 Ohio App. 3d 16 (Ohio Ct. App. 2011).

Opinions

Hall, Judge.

{¶ 1} Ray Soloman appeals a trial court’s determination that he is not entitled to receive workers’ compensation benefits for an eye injury he suffered while installing replacement windows for Dayton Window & Door Co., L.L.C. The court concluded that when he was injured, Soloman was not Dayton Window’s employee. The sole issue in this appeal is whether this conclusion is contrary to the manifest weight of the evidence. Because it is not, we affirm.

2} Dayton Window was hired to install around 40 replacement windows in an apartment building. This was a three-day job that the company did in June 2005. Paul Fiamengo, Dayton Window’s owner, realized that the person who [18]*18would be doing the job, Ron Switzer, could not complete the job by himself within three days. So, over the telephone, Fiamengo hired Soloman to install the replacements too. During their conversation, Soloman asked for two weeks’ worth of work, because he would be starting another job then, but Fiamengo told him that the apartment job would last only three days. Fiamengo told Soloman to be at the work site on June 22 at 8:80 a.m.

{¶ 3} Soloman showed up at the appointed time and started working. Soloman and two of the apartment’s tenants testified that Switzer worked with Soloman on the first few windows, giving Soloman instructions on how to remove the old windows and install the replacements. Soloman continued to work that day and worked the next day. Just after noon on the third day, June 24, while Soloman was working to remove a metal bracket from a window frame, a small piece of metal chipped off and struck one of Soloman’s eyes. Soloman immediately sought medical care, and he did not return to the job site.

{¶ 4} Soloman filed an application for benefits with the Bureau of Workers’ Compensation. After a hearing, a district hearing officer denied Soloman’s application, finding that he was not Dayton Window’s employee at the time he was injured. Soloman appealed the decision, and a hearing was held before a staff hearing officer. This officer also denied Soloman’s application, finding likewise that he was not Dayton Window’s employee and further finding that he was an independent contractor. Soloman then appealed to the Industrial Commission, but the commission refused to hear the appeal.

{¶ 5} In February 2009, Soloman appealed to the Montgomery County Court of Common Pleas.1 The parties waived their right to a jury trial, and the appeal was tried to the court. Upon de novo review of the law and facts, and based on the evidence presented to it,2 the trial court determined that Soloman [19]*19did not have the right to receive workers’ compensation benefits because he did not meet one of the workers’ compensation statute’s definitions of “employee” at the time he was injured.

{¶ 6} Soloman appealed to this court.

{¶ 7} The only issue before a trial court in an appeal from a staff hearing officer’s order is the claimant’s right to receive, or to continue to receive, workers’ compensation benefits. See Staton, 1997 WL 101846, citing Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, paragraph one of the syllabus; R.C. 4123.512(D).3 In addition to showing that the injury caused the disability, to establish a right to benefits, the claimant must show that the injury arose out of and in the course of employment. White Motor Corp. v. Moore (1976), 48 Ohio St.2d 156, 357 N.E.2d 1069, paragraph one of the syllabus, which in part requires the claimant to prove his employment status. The claimant must show that at the time he was injured, he was an “employee,” as that word is defined in the workers’ compensation statute, see R.C. 4123.01(A)(1).

{¶ 8} Here, the parties stipulated that the sole issue before the trial court was whether Soloman was Dayton Window’s employee. Specifically, the issue was whether he met the definition of “employee” in R.C. 4123.01(A)(1)(c), which defines “employee” as “[ejvery person who performs labor or provides services pursuant to a construction contract, as defined in section 4123.79 of the Revised Code, if at least ten of the following criteria apply.” The parties agreed that Soloman provided services under a “construction contract,”4 so the only issue was whether at least ten of the 20 statutory criteria applied. In its written decision, the trial court considered each criterion, examining the evidence relevant to each one. It found that the evidence established that eight applied. Consequently, the court concluded that Soloman was not Dayton Window’s employee. Based on this conclusion, the court determined that Soloman was not entitled to workers’ compensation benefits.

{¶ 9} Soloman contends that the manifest weight of the evidence is contrary to this determination. “Where an appellant challenges a judgment as being against the manifest weight of the evidence, our scope of review is limited. ‘An appellate court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the findings [20]*20of fact and conclusions of law rendered by the trial court.’ ” Laukhart v. Admr., Ohio Bur. of Workers Comp. (May 24, 1996), Montgomery App. No. 15448, 1996 WL 280748, quoting Myers v. Garson (1993), 66 Ohio St.3d 610, 616, 614 N.E.2d 742. Soloman contends specifically that the trial court should have found that the evidence shows that seven other criteria also applied.

{¶ 10} We are not convinced.

A. Manner or method of work

{¶ 11} The first criterion is this: “The person is required to comply with instructions from the other contracting party regarding the manner or method of performing services,” R.C. 4123.01(A)(l)(c)(i). The trial court found that much of the evidence relevant to this criterion conflicted. Soloman testified that Fiamen-go agreed to let him work under Switzer, but Fiamengo testified to the contrary. Testimony from one of the tenants showed that for the first few windows, Switzer worked with Soloman, telling him how to remove the old window and install the replacement. Yet, the court noted, Soloman testified that Fiamengo did not tell him to follow Switzer’s instructions, nor did Fiamengo gave him instructions on how to do the job. The court also pointed to Fiamengo’s and Soloman’s testimony that Fiamengo told Soloman not to throw windows on the ground and make a mess, and Soloman’s response to Fiamengo that he cleans up when he is done. The court said that this testimony “indicates that Soloman did not feel required to follow Dayton Window’s instructions.”

{¶ 12} Soloman argues that the court’s inference is unreasonable. Soloman says that his response was merely the explanation that he gave Fiamengo about why he did not clean up, not a refusal to obey instructions. Soloman also argues that though Switzer was not the “contracting party,” his instructions must be attributed to the contracting party, Fiamengo.

{¶ 13} The evidence does not compel finding that this criterion applies. Regarding the court’s inference drawn from Soloman’s response to Fiamengo, we observe that the court seems to have gotten the evidence a bit mixed up.

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Soloman v. Dayton Window & Door Co., L.L.C.
2011 Ohio 6182 (Ohio Court of Appeals, 2011)

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Bluebook (online)
2011 Ohio 6182, 961 N.E.2d 1229, 196 Ohio App. 3d 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soloman-v-dayton-window-door-co-llc-ohioctapp-2011.