Uninsured Employers' Fund v. Merritt

Gilbert, J., delivered the opinion of the Court. Uninsured Employers’ Fund [the Fund], dissatisfied with the judgment of the Circuit Court for Prince George’s County, affirming an award of the Workmen’s Compensation Commission, appeals. ⁷⁵ The Fund raises the question, “Was the claimant an employee employed within the meaning of the Workmen’s Compensation law, Article 101, and was he employed by an empolyer who was engaged in the building of a private dwelling without pecuniary gain, thereby making said claimant an independent contractor ?” Algie Merritt filed a claim with the Workmen’s Compensation Commission on October 9, 1968, 1 in which he alleged that on August 30, 1968 he was injured, “While descending a ladder from a roof of a garage, the ladder slipped out from under me.” Merritt sustained a fracture of the right heel and lost time from work from the day of the accident to February 3, 1969. In hig claim Merritt had listed two employers, James Cain, Jr. [Cain] and David F. McKay [McKay]. The testimony before the Workmen’s Compensation Commission revealed that Cain, who was engaged in a service station and fuel oil business in Washington, D.C., was the owner of a parcel of ground at Eagle Harbor, Maryland, and that he was desirous of building a home on the property.

He was referred by a friend to McKay. Cain contacted McKay and McKay agreed, according to Cain, that he would “build my house for me.” No agreement was made as to the amount McKay would charge, but it was agreed that McKay would tell Cain at the end of each week how much Cain owed him for that particular week. McKay was usually paid in cash and he in turn would pay Merritt, at the rate of $4.00 an hour, with his own personal check. McKay said he considered himself to be a supervisor and not Merritt’s employer.

As supervisor he felt he had the power to hire and fire other persons on the job. While McKay testified that Cain hired Merritt, both Merritt and Cain stated that it was McKay who did the hiring. McKay would advise Cain as to materials that were needed and sometimes he would order them. There were occasions when materials were billed to what McKay ⁷⁶ described as a defunct construction business that he formerly owned.

McKay explained that the reason the materials were billed to the defunct business was for the purpose of Cain’s obtaining better prices. McKay suggested changes in the building from time to time and directly supervised Merritt. Merritt testified that he received and followed orders from McKay. At one time prior to the accident, Merritt had asked McKay about social security and withholding taxes not being deducted from his wages and McKay told him, “he would take care of it.” After Merritt’s injury, Cain, through McKay, gave Merritt $300.00 and Merritt executed a receipt.

Cain describes this as a gratuity, because Merritt was injured and he felt sorry for him. The Commission found that Merritt was the employee of McKay and ordered the payment of temporary total disability from the date of the accident until February 3, 1969, as well as the payment of the medical bills. Inasmuch as McKay was uninsured, the Fund was called upon to make payment. At a rehearing which was requested by the Fund, et al., the Commission affirmed its previous finding.

An appeal was entered to the Circuit Court for Prince George’s County. No testimony was taken before the lower court, as counsel agreed that the record from the Commission was sufficient. Judge Meloy upheld the Commission. The obvious question is: Whose employee was Merritt —McKay’s or Cain’s, or was he an independent contractor?

In Snider v. Gaultney, 218 Md. 332 at 336 ; 146 A. 2d 869 (1958), the Court of Appeals said: “ ‘Independent contractor’ is not defined in the statute, but has been judicially defined as ‘one who contracts to perform a certain work for another according to his own means and methods, free from control of his employer in all details connected with the performance of the work ex ⁷⁷ cept as to its product or result.’ ” (Citations omitted). McKay instructed Merritt when to report to work and “what kind of work to do at that time, what board to move, what room to build.” McKay kept time sheets or hours on Merritt, and Merritt was paid at an hourly rate. “The fact that a workman is paid by the hour and is not required to complete a definite task is an indication that he is an employee.” Williams Construction Co. v. Bohlen, 189 Md. 576, 582 (1948). We think it patent that Merritt was not an independent contractor. A decision of the Workmen’s Compensation Commission is prima facie correct and the burden of proving otherwise is upon the party attacking the same.

Zentz v. Peters, 11 Md. App. 1 (1971) ; Symons v. Grier & Sons, 10 Md. App. 498 (1970) ; Thompson v. Paul C. Thompson & Sons, 258 Md. 391, 394 (1970) ; Talley v. Dept.