ROBERT ZAMORA, Employee, v. WINDHAM HILLS CONDO. ASSOC., and AMERICAN FAMILY INS. CO., Employer-Insurer, and GASSEN COS., and STATE FUND MUT. INS., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 20, 2006
File No. WC06-143
HEADNOTES
EMPLOYMENT RELATIONSHIP - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that the property management company was the employer of a maintenance man for the condominium association.
Affirmed.
Determined by Rykken, J., Stofferahn J., and Johnson, C.J.
Compensation Judge: Paul Rieke
Attorneys: James G. Vander Linden, LeVander & Vander Linden, Minneapolis, MN, for the Respondent Employee. John H. Guthmann, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for Respondents Windham and American Family. Jeffrey W. Jacobs, Wilkerson & Hegna, Edina, MN, for the Appellants.
OPINION
MIRIAM P. RYKKEN, Judge
Gassen Companies[1] and its insurer appeal from the compensation judge=s determination that Gassen Companies was the employer of Robert Zamora at the time of his injury. We affirm.
BACKGROUND
The parties stipulated that the employee, Robert Zamora, sustained a personal injury arising out of and in the course of his employment on April 14, 2003. The sole dispute at hearing was which of two entities, Windham Hills Condominium Association or Gassen Companies, was the employer on that date.[2] The parties submitted the dispute to the compensation judge for resolution by way of a stipulation of facts with a number of exhibits.
Windham Hills Condominium Association (Windham) is the organization for condominium owners at Windham Hills, a condominium complex in Burnsville. Mr. Zamora was hired in November 2001 by Windham to do caretaker and maintenance work at the condominiums. His immediate supervisors were the property manager, who happened to be his daughter, and a condominium owner who was on the board of directors for the association. His rate of pay and general duties were set by the board of directors. The employee received his paychecks, with appropriate deductions, from Windham and at the end of the year he received a W-2 from Windham as well.
In December 2002, Windham entered into a contract with Gassen Companies (Gassen) under which Gassen became the property manager for Windham. In its brief on appeal, Gassen refers to four sections in the contract which it states are of particular importance in this matter:
1. Section 2.5 provides that Gassen will maintain common areas subject to the direction of Windham=s board.
2. Section 2.6 states that Gassen will act as the agent for Windham in hiring, firing, and scheduling employees of Windham.
3. Section 2.7 provides, in relevant part, A[o]n the basis of the budget, job standards and wage rates approved by the ASSOCIATION [Windham], the AGENT [Gassen] shall hire, pay, negotiate collective bargaining agreements with, supervise and discharge employees and such other personnel required to maintain and operate the Common Areas properly.@
4. In Section 2.8, Gassen agreed to file appropriate tax and unemployment forms and Aperform all acts required as an employer@ but to do so Aon behalf of@ Windham.
The employee learned of the change in property management in December 2002, when Darlene Henry, an employee of Gassen, came to see him at Windham. He was told by Ms. Henry that he would need to Ahire on@ at Gassen and that if he did not do so he would no longer have a job. He was also advised he would need to be interviewed. The employee subsequently interviewed with Ms. Henry and filled out a number of forms, including an employment application, an authorization for a background check, and a form indicating his eligibility for employment. The employee was also given a Acode of conduct@ for Gassen Aon-site staff members@ which set out behavior expectations on the job.
At his interview, Ms. Henry told the employee he should be paid more and shortly after Gassen became the property manager, the employee received a pay increase of $1.00 an hour after approval by the Windham board. The employee reported to Ms. Henry, who was assigned to be Gassen=s property manager for Windham. She gave him worksheets to keep track of his time and he filled them out and faxed them to Gassen. The employee=s subsequent paychecks were from Gassen and deductions were taken. At the end of the year, Mr. Zamora received a W-2 which identified Gassen as his employer.
The employee=s duties at Windham did not change after Gassen became the property manager. He testified that he tried to call Ms. Henry every day but that it was not always possible to reach her. After a short time, he was advised by a Windham board member that it was not necessary to call Ms. Henry every day. The employee continued to be in contact with Ms. Henry thereafter when he needed to discuss issues such as ordering parts. The employee also had authorization to charge purchases at hardware stores to Windham.
In his Findings and Order of March 9, 2006, the compensation judge determined that Gassen was Mr. Zamora=s employer on April 14, 2003. The compensation judge identified the most significant consideration as being who controlled the means and manner of the employee=s job performance. Gassen appeals.
DECISION
On appeal, Gassen contends that the management contract between Gassen and Windham clearly established that Windham continued to be Mr. Zamora=s employer after December 2002. According to the argument, the compensation judge erred in failing to apply the contract on this issue. We are not persuaded.
First of all, we do not find the management contract to be as clear as does Gassen=s counsel. There is no provision which has language dealing specifically with Mr. Zamora=s situation. Instead, Section 2.6 states that Gassen will act as facilitator for Windham=s employees but Section 2.7 provides that Gassen will hire and pay the employees necessary to maintain the common areas. Neither of these sections answers the question at issue here.
Secondly, we believe that in considering the contract, it is necessary to consider the entire contract and the intent of the parties. Windham is an association of condominium owners and not in the business of property management. We believe the contract evinces the intent of Windham to divest itself of the personnel, the paperwork, and the daily details associated with property management and maintenance. Gassen agreed to undertake these obligations. Given these intentions, there is no reason to assume that the parties contemplated that Robert Zamora, who was the person most directly involved with property maintenance, would not become a Gassen employee.
Finally, the evidence in this case was not limited to the contract. The evidence also included the employee=s deposition, various employment and wage records, and a seven page stipulation of facts which included, among other items, summaries of testimony from other potential witnesses. The compensation judge properly considered all of this evidence in making his decision. It is noteworthy in this regard that the witnesses whose testimony was summarized in the stipulation of facts understood that the employee was a Gassen employee at the time of his injury.
The compensation judge identified, as a significant consideration, the factors showing Gassen=s control over the means and manner of the employee=s job performance. The employee was told by a Gassen supervisor that if he wanted to keep his job he would have to hire on with Gassen. The employee completed an employment application, which presumes that Gassen could have rejected Mr. Zamora as a employee. The employee was interviewed by Gassen, was given a code of conduct form, and was told he was Ahired.@ He was given Gassen time sheets to complete and received Gassen paychecks and a Gassen W-2 at the end of the year.
The existence of an employment relationship between two parties is a question of fact, and, if any reasonable inference may be drawn either way, the decision of the compensation judge must stand. Farnam v. Linden Hills Congregation Church, 276 Minn. 84, 87-88, 149 N.W.2d 689, 692, 24 W.C.D. 135, 140 (1967); Bellow v. Antonio Holliday, slip op. (W.C.C.A. Sept. 12, 2005). The question for this court is not whether the evidence would have supported a contrary result but whether substantial evidence supports the decision reached by the compensation judge.
Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). We find substantial evidence in the present case and the compensation judge=s decision is affirmed.