David Fox appeals from the compensation judge’s determination on remand that he was the employer of Delano Price at the time of Mr. Price’s personal injury on November 12, 2007.  We vacate and remand for further consideration.

The issue in this case is whether Delano Price was an independent contractor or an employee of David Fox at the time of his personal injury on November 12, 2007.  Evidence on this issue was presented at a hearing before a compensation judge on December 7, 2009.  In Findings and Order issued February 16, 2010, the compensation judge concluded Mr. Price was an employee of Mr. Fox.  Mr. Fox appealed to this court and the decision was remanded for application of the independent contractor rules.^[1]  On remand, the compensation judge reviewed the evidence presented at the hearing in 2009 and concluded that Mr. Price was an employee of Mr. Fox pursuant to Minn. R. 5224.0110, subp. 3.  Mr. Fox appeals.

The parties agree that sometime in 2000 or 2001, Mr. Fox hired Mr. Price to do yard work at his home.  This business relationship continued until November 12, 2007, when Mr. Price was injured while raking leaves at the Fox residence.  Mr. Price filed a claim for workers’ compensation benefits arising out of this injury.  Mr. Fox, who was uninsured for workers’ compensation claims, denied liability on the basis that Mr. Price was not his employee but was an independent contractor.

The workers’ compensation law provides coverage for injuries sustained by an employee but excludes injuries sustained by an independent contractor.  Minn. Stat. § 176.041, subd. 1(l).  Minn. Stat. § 176, subdivision 11, requires the Department of Labor & Industry to promulgate “rules establishing criteria to be used by the division, compensation judge, and court of appeals to determine independent contractor.”  The independent contractor rules are set out in Chapter 5224 of Minnesota Rules.

Minn. R. 5224.0110 sets out the manner in which the rules are to be applied.  “Safe harbor” criteria for establishing employee or independent contractor status for an injured worker in specific occupations are found in rules 5224.0020 to 5224.0312.  If the worker does not meet the criteria for either employee or independent contractor under those rules, a determination of the worker’s status is to be made by applying rules 5224.0330 and 5224.0340.

We agree with the compensation judge and the parties that Minn. R. 5224.0110, establishing safe harbor criteria for laborers, applies in the present case.  Subpart 3 of that rule sets out the criteria which must be met in order for an employment relationship to be found.  The compensation judge concluded Mr. Price was an employee of Mr. Fox under that subpart.  On appeal, we are asked to consider whether substantial evidence supports that conclusion.

Minn. R. 5224.0110, subp. 3, sets out five criteria, all of which must be “substantially met” in order for an employment relationship to exist.  We turn to a consideration of the evidence relevant to each of the criteria.

The evidence does not support a finding that this requirement was met.  Mr. Price made liberal use of assistants to get the work done.  Mr. Fox did not know in advance if Mr. Price would be bringing help for a particular task.  That decision was made by Mr. Price based on the work he wanted to do that day.  Mr. Price determined how many assistants would be needed, who these people were, and how much they were to be paid.  When Mr. Price was paid for work on a lump sum basis, such as when he put in or took out a dock, he would be given the entire amount and he divided the money with his helpers as he saw fit.

Mr. Price did his work at the Fox residence.  The evidence does not support a finding that the work was done at specified times.  Mr. Fox asked that yard work not be done on Sundays, but that the yard should look nice for the weekend.  Within those broad parameters, Mr. Price set the day and time when the work would be done and whether the work needed to be rescheduled because of weather conditions.

Mr. Price estimated that 90% of the work was done using Mr. Fox’s tools.  Those tools included a yard tractor for mowing, lawn mowers, a snow blower, hedge trimmers, rakes and the like.  Mr. Price had a tool box of his own to do some repairs.  He also had a trailer he attached to his pickup that was used to haul leaves in the fall.  Mr. Price charged a flat rate for the use of his trailer.

Mr. Price was paid by the hour for yard work done in the summer, primarily mowing the yard and in the fall, primarily removing leaves.  During the winter Mr. Price received two days pay for each week for snow removal.  The amount remained the same if it snowed a lot and Mr. Price had to plow snow more than two days or if it did not snow at all and he did not have to work for that week.  As indicated earlier, Mr. Price was paid a lump sum for removing the dock in the fall and putting it in the water in the spring.  There were also some occasions when Mr. Price was asked to move furniture and he was paid a lump sum for that work.

There is evidence that on occasion, Mr. Fox would ask Mr. Price to perform a specific task when he came to the Fox residence.

There was no written contract between the parties and the work performed was general yard work with no specific end of the “project” contemplated.  When Mr. Price was injured, there is evidence that he arranged for someone to do the yard work for a few days because he was unable to do so.

We conclude substantial evidence does not support a conclusion that all of the criteria establishing an employment relationship were substantially met.  The decision of the compensation judge finding an employment relationship on the basis on Minn. R. 5224.0110, subp. 3, is vacated.

We also conclude this matter needs to be remanded for further consideration.  On remand, the compensation judge should determine whether all of the criteria for establishing independent contractor status for a laborer set out in Minn. R. 5224.0110, subp. 2, have been substantially met.  Regardless of that determination, we believe it would be appropriate for the compensation judge to apply the “catch all” provisions of 5224.0330 and 5224.0340 to this matter as well.  Whether additional evidence is needed to assist in the determination of these questions is left to the discretion of the compensation judge.