David Fox appeals the compensation judge’s finding that Delano Price’s injury on November 12, 2007, arose out of an employment relationship with David Fox.  We reverse.

David Fox and his wife own a house situated on approximately 4 1/2 acres of land in Wayzata, Minnesota.  Prior to the year 2000, the lawn and grounds were maintained by Mr. Fox, his son, or an outside lawn service.  Sometime in 2000 or 2001, Mr. Fox had a conversation with his barber during which he mentioned he was looking for someone to do yard work at his home.  Delano Price had been semi-retired for a number of years and, from 1995 through 1999, performed yard and maintenance work at the home of Jim Fullerton for approximately 20 hours a week.  The barber knew Delano Price and apparently was aware he performed yard work.  The barber asked Mr. Price whether he was interested in the job and referred him to Mr. Fox.

After speaking on the telephone, Mr. Fox and Mr. Price met at the Fox home.  At this meeting, Mr. Price gave Mr. Fox his business card which stated “Del’s Fix-It” with his phone number.  Mr. Fox explained that the primary duties were to mow the lawn, remove the leaves in the fall, and keep the driveway and sidewalks clear of snow in the winter.  They agreed that Mr. Price would work a guaranteed 16 hours a week for Mr. Fox for which he would be paid $240.00, calculated on a payment of $15.00 per hour.  Mr. Price was paid on an hourly basis for any time he expended in excess of 16 hours a week.  In the winter, Mr. Price was paid for 16 hours per week, whether he worked or not.  In 2006, the parties agreed that Mr. Price would be paid $17.00 an hour.  Mr. Fox stated that he preferred that the work be performed between Monday and Friday unless weather was a problem.  Mr. Price decided what days and hours he would perform the work for Mr. Fox.

As time went on, Mr. Price performed other work for Mr. Fox, including painting, cleaning, moving furniture, planting trees, trimming shrubs and hedges, changing storm windows and screens, and maintaining Mr. Fox’s yard equipment.  Mr. Price was paid on an hourly basis for these additional jobs and submitted a weekly invoice.  Mr. Fox continued to pay Mr. Price a weekly flat fee for snow removal.

Mr. Fox provided most of the necessary tools and equipment to perform the yard work including two lawn tractors, a push mower, a weed-whacker, rakes, a leaf blower, a vacuum leaf collector, a fertilizer spreader, shovels, a hedge trimmer, and a chainsaw.  For work in the winter time, Mr. Fox provided a snow blower and snow shovels, together with salt and sand as needed.  When Mr. Price spent his own money for gas, repair parts, fertilizer, paint, or other supplies for the job, Mr. Fox reimbursed him for those expenses.  Mr. Price drove his own truck to the job in which he carried certain tools, including shovels, a chainsaw, a gas can, a weed whacker, a leaf blower, a fertilizer spreader, hand tools, jacks, and other yard and maintenance equipment.  Mr. Price used his own trailer when hauling leaves from the Fox property.  The parties agreed that 90% of the tools and equipment used by Mr. Price for lawn mowing and snow removal belonged to Mr. Fox.

Initially, Mr. Price performed all of the work personally, but later realized he could not perform all of the work.  He discussed this with Mr. Fox who told him to hire whomever he wished to assist him.  When Mr. Price did hire someone to work with him, he set an hourly wage for the helper and billed Mr. Fox for their time.  Mr. Price was paid in cash and then paid the helpers he hired.

Seasonally, Mr. Price hired a crew to put in and take out a dock on the Fox property.  Mr. Fox supervised this activity to ensure it was done correctly.  Mr. Price was paid a lump sum for the job, and he decided how the workers he had hired were to be paid.  Between 2002 and 2007, Mr. Price also performed some yard work for Mr. Fox’s father and occasionally drove him to a doctor’s appointment.  Mr. Price was paid on an hourly basis by Mr. Fox’s father for this work.

On November 12, 2007, Mr. Price was blowing leaves on Mr. Fox’s property when he stepped on a pipe hidden in the grass, rolling his foot and ankle.  He sustained a fracture to the left ankle that required multiple surgeries and extensive treatment.  On that date, Mr. Fox was uninsured for workers’ compensation liability.

Mr. Price filed a claim petition seeking workers’ compensation benefits arising out of his November 12, 2007, injury.  Mr. Fox denied Mr. Price was an employee and alleged that at the time of his personal injury, he was an independent contractor.  The matter was heard before a compensation judge at the Office of Administrative Hearings.  In a Findings and Order dated February 16, 2010, the compensation judge found that Mr. Price was an employee of Mr. Fox and ordered payment of workers’ compensation benefits.  The compensation judge failed to apply the evidence to any of the independent contractor rules found in Minn. R. chapter 5224, and did not address the criteria set out in those rules.  Accordingly, this court remanded the case to the compensation judge to determine which of the independent contractor rules applied to the case.  Price v. Fox, No. WC10-5082 (W.C.C.A. July 21, 2010).

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 under Minn. R. 5224.0110, subp. 3.  On appeal, this court held that substantial evidence did not support a conclusion that all five of the criteria of Minn. R. 5224.0110, subp. 3, were met.^[1]  Accordingly, the judge’s decision finding an employment relationship was vacated.  The court remanded the case to the compensation judge for further findings.  Price v. Fox, No. WC10-5230 (W.C.C.A. Apr. 4, 2011).

In October 2011, a second hearing was held before a compensation judge at the Office of Administrative Hearings.  In a Findings and Order, served and filed January 19, 2012, the judge found Mr. Price did not substantially meet all of the independent contractor criteria for laborers set forth at Minn. R. 5224.0110, subp. 2.  The compensation judge further found Mr. Price would be considered an employee under the general criteria for non-specified occupations set forth at Minn. R. 5224.0330 and 5224.0340.  Mr. Fox again appeals.

Pursuant to Minn. Stat. § 176.041 certain workers are excluded from coverage under Minnesota’s workers’ compensation law.  Subdivision 1(12) of the statute excludes “persons who are independent contractors as defined by . . . any rules adopted by the commissioner pursuant to § 176.83.”  The commissioner, in chapter 5224, adopted rules containing criteria for distinguishing between an employee and an independent contractor for purposes of workers’ compensation coverage.

It previously was determined that Mr. Price was a “laborer” within the meaning of Minn. R. 5224.0110, subp. 1,^[2] and that he did not meet the safe harbor criteria for an employee under Minn. R. 5224.0110, subp. 3.  Price v. Fox, No. WC10-5230 (W.C.C.A. April 4, 2011).  On remand, the compensation judge found the employee was not an independent contractor because he did not meet six of the eight safe harbor criteria under Minn. R. 5224.0110, subp. 2.  Mr. Fox appeals this decision and contends the compensation judge reached an erroneous legal conclusion.

The determination of employment status is, ultimately, a legal issue.  Hunter v. Crawford Door Sales, 501 N.W.2d 623, 48 W.C.D. 637 (Minn. 1993).  There is little dispute as to the underlying facts in this case.  The legal question in this case is whether Mr. Price was an employee of Mr. Fox or an independent contractor.  Thus, the question on review is whether the compensation judge properly applied the independent contractor rules in this case.  A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which this court may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607 (W.C.C.A. 1993).

Subpart 2 of Minn. R. 5224.0110 provides that:

A.  The laborer generally must use business judgment to earn a livelihood.  The laborer’s success or failure depends on how assistants are managed, the protection of investment through proper care of tools and equipment, and the reputation established as a result of methods of doing business.  The compensation judge determined Mr. Price did not meet the criteria for an independent contractor under subpart 2.A. of the rule because he did not have to utilize business judgment to earn his livelihood, his earnings were not affected by how his assistants were managed, he did not have to worry about protecting his tools because Mr. Fox supplied most of the expensive tools, and he did not need to worry about protecting his reputation because he worked solely for Mr. Fox.  We cannot agree.  Mr. Price had to use his business judgment to determine the number of hours needed to perform all of the work requested by Mr. Fox and to negotiate an hourly wage.  Mr. Price also used his business judgment to determine when to hire assistants, whom he should hire, and how much to pay those he hired.  Mr. Price also had to supervise his assistants to ensure they performed the work to his and Mr. Fox’s satisfaction.  On one occasion, Mr. Price did not rehire an assistant who performed his duties poorly and, on another, fired an assistant who failed to come to work.  These acts are an exercise of business judgment.  Mr. Price did furnish certain tools which he used on the job, including his pickup truck, a trailer, and various yard and maintenance equipment and tools which he needed to care for to protect his investment.  We conclude Mr. Price substantially met this criteria.

B.  The services need not be performed personally.  The compensation judge concluded the employee did not meet the criteria under subpart 2.B. because Mr. Fox expected him to perform a majority of the work personally.  We disagree that the facts support this conclusion.^[3]  The focus of this criteria is not whether Mr. Price did, in fact, personally perform most of the services, but rather whether he was required to do so.  Mr. Price was free to hire assistants without the approval of Mr. Fox and did so on numerous occasions.  Mr. Fox testified it did not matter to him whether Mr. Price personally performed the service or whether he hired someone to do it.  Mr. Fox testified he only wanted the work done and who did the work was not the concern.  (T. 56.)  Mr. Price agreed that Mr. Fox only wanted the work done and was not concerned about whom Mr. Price brought along.  (Ex. 3 at p. 104.)  Given these facts, Mr. Price met the criteria of subpart 2.B.

C.  The laborer holds himself or herself out to the public as available for furnishing a certain type of service on a job basis.  The compensation judge noted that Mr. Price did hold himself out to the public as available for handyman work prior to going to work for Mr. Fox but thereafter did not solicit additional jobs.  Accordingly, the compensation judge determined Mr. Price did not meet the criteria of subpart 2.C.  We conclude the judge misapplied this criteria.  Mr. Price worked for four years doing yard and house maintenance work for a different employer prior to going to work for Mr. Fox.  Mr. Fox’s barber clearly knew Mr. Price was in the yard maintenance business and recommended Mr. Price to Mr. Fox.  The fact that, after obtaining work with Mr. Fox, Mr. Price did not choose to solicit other work does not disqualify him under this criteria.  Further, Mr. Price did occasionally perform work for Mr. Fox’s father and other members of the family.  Finally, Mr. Price gave Mr. Fox his business card which stated “Del’s Fix-It” with his phone number.  The fact that Mr. Price had business cards available is evidence that he held himself out to the public as available for handyman work.  On the facts we conclude Mr. Price met the criteria of subpart 2.C.

D.  The laborer is free to hire assistants and the assistants are the laborer’s own responsibility, that is, the laborer directs them, pays them, and is liable for the payment of taxes on their wages.  The compensation judge determined that although Mr. Price hired assistants, he was only a conduit for their payment and did not pay taxes on their wages.  Accordingly, the compensation judge concluded that Mr. Price did not meet subpart 2.D. of the safe-harbor criteria for an independent contractor.  Again, we disagree with the compensation judge’s legal conclusion.  As discussed previously, Mr. Price was free to hire assistants without the approval of Mr. Fox.  The decision to hire assistants was made by Mr. Price based on the work he wanted to do that day.  Mr. Price supervised and directed their work.  Mr. Price determined the amount to be paid to his assistants and provided a weekly invoice to Mr. Fox which included a charge for the hours worked by his assistants.  Mr. Price was paid in cash and, as their employer, he was responsible for paying the helpers he hired.  Mr. Price met the criteria of subpart 2.D.^[4]

E.  The laborer furnishes tools.  The compensation judge found the employee did not meet the criteria under subpart 2.E. of the rule because Mr. Fox provided the vast majority of the tools used in the performance of the work.  The dissent states that to substantially meet this criteria, the laborer must provide substantially all of the tools to do the job.  We find no support in the criteria for this assertion.  The safe harbor criteria provides only that the laborer furnishes tools; it does not specify any minimum percentage.  It is undisputed that Mr. Price did furnish tools used on the job including hand tools, a leaf blower, shovels, a chainsaw, a gas can, a weed whacker, a fertilizer spreader, jacks, a trailer, and his pickup truck.  Both parties testified that Mr. Price sometimes used Mr. Fox’s tools and sometimes used his own tools.  Whose tools he used the most is beside the point.  Accordingly, Mr. Price does meet this criterion for an independent contractor.

F.  The laborer obtains work by recommendation, advertising in newspapers, or maintaining a business listing in a telephone or service directory.  The compensation judge concluded Mr. Price did not meet the criteria under subpart 2.F. because he was not advertising for business in 2007 when the injury occurred and did not maintain a business listing in a telephone or service directory.  This criteria is not easily applicable in this case, as Mr. Price was semi-retired and receiving a pension and, later, Social Security retirement benefits, while working for Mr. Fox.  The criteria, however, also is met if the laborer obtains work by recommendation.  Mr. Price obtained the job through the recommendation of the barber in Delano, Minnesota.  In addition, the “Del’s Fix-It” business card given to Mr. Fox evidences that Mr. Price was, at some point, advertising for business.  Mr. Price, therefore, meets the criteria of subpart 2.F.

G.  The laborer is responsible only for completion of the job within a certain time and is free to use personal methods and means for doing the work.  Mr. Fox asked that, weather permitting, work not be done on the weekends, but, as a general rule, within very broad parameters, Mr. Price determined the day and time when work would be done, whether a helper was needed, what work needed to be done, and how the work should be done.  The compensation judge found Mr. Price was free to use personal methods and means for doing the work.  On these facts, the compensation judge found the employee did meet the criteria for an independent contractor under subpart 2.G.

H.  The laborer agrees to provide lien waivers upon completion of the job.  The compensation judge found subpart 2.H. of the rule was inapplicable because no lien waivers were required for the nature of the work being performed by Mr. Price.  We agree.  There was no evidence that the work performed for Mr. Fox qualified for a lien under Minn. Stat. § 514.01, et. seq.  Since the criteria is not applicable, we conclude it need not be met to qualify as an independent contractor.

Even if we had not concluded that Mr. Price met all of the safe harbor criteria for an independent contractor, we would nevertheless conclude he was not an employee under the general rules.  The most significant factor in determining the existence of an employment relationship is the right to control the means and manner of the performance of the work.  Hunter, 501 N.W.2d at 624, 48 W.C.D. at 638; Hammes v. Suk, 291 Minn. 233, 190 N.W.2d 478, 26 W.C.D. 43 (1971); Minn. R. 5224.0330, subp. 1.  Mr. Fox was at work and was generally not present during the time that Mr. Price performed his work.  Further, Mr. Fox was the CEO of Lakeland Engineering Equipment Company and was not in the business of providing yard work or snow removal.  Rather, Mr. Fox was simply a homeowner seeking someone to do yard work at his home.  A homeowner seeking home or yard maintenance is entitled to as much control of the details of the work as is necessary to ensure the homeowner obtains the result bargained for from the person providing the work.  That is, the homeowner may control the quality or description of the work without controlling the means or manner by which the person performs the work.  We find that to be the case here.  Mr. Price was hired to perform a job.  Mr. Fox expected the work be performed in a satisfactory manner within the time frame he established.  But, beyond that, Mr. Price determined the means and manner of the performance of the work.

We conclude that Mr. Price substantially met all of the applicable criteria of Minn. R. 5224.0110, subp. 2.  Further, the evidence of control by Mr. Fox of the means and manner of the performance of the work does not support a determination that Mr. Price was an employee.  Accordingly, Mr. Price was an independent contractor, not an employee of Mr. Fox.

The decision of the compensation judge is reversed.

I respectfully dissent from the majority’s opinion in this case.  This case presents one issue on appeal:  Whether Mr. Price was an independent contractor or an employee of Mr. Fox under the workers’ compensation statute on the date of injury, November 12, 2007.  The differences between the majority’s opinion and my dissent stem from the standard of our review and the interpretation of the relevant rule.  The majority considers this case to be a pure question of law reviewable de novo, and determines that Mr. Price met all the criteria for independent contractor under the safe harbor provision of Minn. R. 5224.0110, subp. 2.  I consider this case a mixed question of law and fact; that is, the issues of law are reviewed de novo, but the compensation judge’s factual findings, including her weighing of the evidence as it relates to the specific criteria, are to be reviewed based on a substantial evidence standard.

“[T]he determination of employment status is, ultimately, a legal one.”^[5]  A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers' Compensation Court of Appeals may consider de novo.^[6]  This court has clarified that in a case “with facts which might fit a particular work situation into more than one of the criteria, or where a criterion is partially met, the compensation judge must weigh those facts and the credibility of the witnesses to make the final determination. In such a case, the compensation judge's determination must be given the deference reserved for factfinders under this court's standard of review.”^[7]  Whether all of the criteria for establishing independent contractor status under the safe harbor provision of the rule were substantially met was a question for the compensation judge on remand from this court.^[8]

The “safe harbor criteria” are divided into eight categories identified by letter in subpart 2 of the rule.  The laborer is an independent contractor if all of the criteria listed are substantially met.  If all of the criteria in a rule are not substantially met, the individuals are evaluated under the general administrative rules contained in Minn. R. ch. 5224.

The findings of the compensation judge, as to control over Mr. Price with regard to the work he was performing and as to the expectation that Mr. Price perform the bulk of the work personally, require determination by analyzing the circumstances.  Reviewing this case as a pure question of law allows the majority to substitute their factual determinations, regarding control over Mr. Price and the work he was performing and the expectation that Mr. Price perform the majority of the work personally, for the compensation judge’s determinations of those issues which were based on her review of the testimony and evidence presented at trial.

The compensation judge identified evidence she believed to be relevant in determining whether the requisite control exists and the expectations of the parties.  The weight given to the relevant facts and the credibility of the witnesses are reserved for the finder of fact under substantial evidence review.  I cannot set aside the factual determinations by the compensation judge and join in the majority’s conclusion that Mr. Price met all of the criteria for independent contractor status under the safe harbor provision for laborers under the rule.

I also disagree with the majority’s interpretation of the legal requirements of the various safe harbor criteria.  The majority states the safe harbor criteria in subpart 2.E. does not require analysis beyond the fact that Mr. Price furnished tools.  Under Minn. R. 5224.0110, subp. 2.E., the laborer must substantially meet the criteria of furnishing tools.  The majority appears to conclude that this subpart is met whenever a laborer provides some of his or her own tools, regardless of the extent of the tools that are needed and used regularly that the laborer does not provide.

What it means to substantially meet this requirement to indicate independent contractor status has not been previously decided by this court.  However, the majority would have us believe that the laborer providing any tools at all meets this requirement.  This interpretation is contrary to the language of Minn. R. 5224.0110, subp. 2.E.  Some guidance may be found in long-standing law pertaining to theInternal Revenue Service’s worker classification rules for independent contractors.  Illustrative of this point, the IRS indicates that an independent contractor often has significant investment in facilities or tools.^[9]  The IRS rules are consistent with the compensation judge’s interpretation of this subpart.

Because the words “substantially met” modify all criteria in subpart 2 of Minn. R. 5224.0110, I find that in subpart 2.E., that means the laborer must provide substantially all the tools to do the job.  The rule sets no minimum or maximum percentage to determine under subpart 2.E. if the criteria are substantially met.  Determination of whether or not the criteria are “substantially met” requires an analysis of the circumstances and reasonably allows for the judge to interpret the rule without adding terms.  Here, the compensation judge evaluated and discussed all tools furnished by Mr. Price and Mr. Fox and found the tools were not a significant investment for Mr. Price or a majority of the tools needed on the job.  The judge stated: “The use by Price of his own hand tools, chain saw, and trailer, did not overcome the fact that the tractors, mowers, weed whackers, etc. were supplied by Fox.  If one of these expensive tools broke, Fox replaced it.”^[10]

To follow the majority’s logic, if the laborer provided only one out of the many tools required to do the job, the majority would find that the criteria would be substantially met.  Clearly this would be an untenable result and contrary to the principles of independent contractor law.  Thus, it is my opinion that subpart 2.E. has not been substantially met and I would affirm the compensation judge on this issue.

In addition, I also would affirm the compensation judge on her factual determination that Minn. R. 5224.0110, subp. 2.B. was not met because Mr. Fox expected Mr. Price to perform the job personally.

The majority states “the determination of employment status is, ultimately, a legal issue.”  I agree, and in this case, many facts are undisputed.  However, the parties sharply dispute who had control over the method and manner of performance of work and what Mr. Fox’s expectations were for Mr. Price to perform the bulk of the work personally.  These disputed facts were reconciled by the compensation judge through the testimony of different witnesses.  The compensation judge found persuasive Mr. Price’s testimony that he was expected to perform a majority of the work personally.  On the other hand, Mr. Fox’s statement at hearing that it did not matter to him who performed the work “was not persuasive to the compensation judge that Price’s appearance when work was performed was irrelevant.”^[11]  The expectations of Mr. Fox are what are in question here, and a question concerning the reality of the expectations of the work Mr. Fox required from Mr. Price is ultimately a question of fact for the compensation judge.

The particular facts in this case showed that the working relationship between Mr. Price and Mr. Fox was not cut-and-dried.  The compensation judge’s conclusion that Mr. Price did not substantially meet all of the criteria for independent contractor status under the safe harbor provision for laborers under the rule^[12] was responsive to the findings of fact based on oral or other evidence.  Therefore, the question of whether the criteria substantially met the safe harbor provision would not appear to be subject to de novo review.  Yet that is exactly how the majority opinion reads:

This court has consistently stated that the compensation judge’s decision to accept the testimony on the reality of an alleged event is a matter of witness credibility and a matter uniquely committed to the compensation judge.^[14]  The compensation judge is not only the judge of witness credibility but of the weight of the evidence given to her.  Here, the compensation judge made detailed findings of fact and determined that Mr. Price did not meet all of the criteria for an independent contractor under the safe harbor provision for laborers in the rules.  In essence, the judge assessed the credibility of each witness against the weight of the evidence and arrived at a conclusion as to the ultimate fact.  The primary agreement between Mr. Fox and Mr. Price was for Mr. Price to personally perform services and the facts did not conform to the standard set under subpart 2.B. to reach the safe harbor criteria.  The judge’s conclusions are responsive to the issue in dispute and cannot be ignored.  The majority’s broad statement that the facts do not support the compensation judge’s conclusion that the employee did not meet the criteria in subpart 2.B. because Mr. Fox expected him to perform a majority of the work personally is contrary to this court’s holdings on the compensation judge’s discretion on witness credibility and contrary to the appellate standard of review.  I would affirm the compensation judge under the substantial evidence standard.

Where the safe harbor rules do not apply, the analysis proceeds to a consideration of certain enumerated general criteria pursuant to Minn. R. 5224.0330 and 5224.0340.  This was the analysis performed by the compensation judge, who determined that Mr. Price was an employee rather than an independent contractor under the rules.  In my view, her findings and conclusions were supported by substantial evidence, and I would affirm.