You didn't know he worked for you? He gets comp anyway

You didn’t know he worked for you? He gets comp anyway

July 2, 2012 by Jim Burger

Posted in: In this week's e-newsletter, Latest News & Views, Workers' comp

A North Carolina company is stuck paying comp to a worker it claims it never hired.

Nelson Campos-Brizuela was told by an acquaintance, Felipe Quintero, that he could help with a job pouring concrete at an elementary school.

Campos-Brizuela accepted, showed up for work, and promptly suffered a near amputation of his right hand while trying to clean a concrete pump.

The company Quintero worked for, Rocha Masonry, denied his comp claim, saying Campos-Brizuela wasn’t its employee. Quintero, it said, didn’t have the authority to hire him.

A comp commissioner agreed with the company. But the full commission reversed, and the decision to award benefits was upheld by an appeals court.

Quintero, said the court, had told Campos-Brizuela he’d receive a paycheck from the company. And at the job site Quintero supervised other workers. Plus, the company had occasionally hired others as temporary assistants.

Campos-Brizuela believed he’d been hired, said the court, and he was in fact doing work for the company when he got hurt.

The bottom line, according to the court: An employee is any person “engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully of unlawfully employed.”

The case is Campos-Brizuela v. Rocha Masonry, L.L.C.

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Tags: Campos-Brizuela v. Rocha Masonry

Bill

SHERALROH:

If the company is not held responsible it certainly allows companies to get away with running a business like this. Why wouldn’t every company just pick up day workers, hire illegal aliens, and pay people cash under the table if they didn’t have to follow regulatory laws. Pay the man his money so companies stop doing illegal business.
VS

I read the link at the end of the article. Mr Quintero admitted under oath that he had told his boss that he was going to hire some helpers to do this job, which was sub-contracted out from another contractor, to pour a concrete slab at an elementary school. This is no different than someone using “day laborers”. My opinion is that this looks like a shady company engaged in shady business practices. Quintero was the boss at the site and he was “telling everyone what to do”, which indicates to me that there were probably more of these “helpers” on site than just the injured man. Quintero also directed the injured man to clean the concrete pump, which again shows that he considered the man an employee. I doubt they would have any proper paperwork or documentattion of any kind on these workers. You can’t allow a company who engages in this type of activity to be let off the hook specifically because of these practices.

One last thing, I just googled Rocha’s Masonry LLC and see that they have between 1-4 employees listed on their various profiles (a couple of the profiles just show 2 employees). It’s kind of hard to pour concrete with just 1-4 employees I imagine, especially since his “bosses” weren’t on site.
alecfinn

SHERALROH a voice of reason……..
SHERALROH

What is disturbing to me is that he he was supposedly “hired” and proper paperwork was not done. Was E-Verify used. Probably not. This is a totally wrong ruling. The worker was not hired officially; probably received no orientation or training and no paperwork was provided to the company by him. No WC should be paid.
Roy

Seems like I disagree with most of the claims I read about here, but I have to agree with this one. If he was told he would get paid to help, he is an employee, plain and simple.
cj

makes sense to me… Quintero supervised employees and sounds like he was allowed to ‘hire’ day workers.. key word is ‘hire’ – therefor employed; even if only for a day
VS

Very bizarre, unfortunate, and very avoidable injury and dispute. Was Quintero the foreman (supervisor) of the jobsite? If other helpers have been used this way and received paychecks from the company in the past then the company has been engaged in a very bad practice, which now seems to have come back on them. If Quintero was the supervisor and this was a common practice then he was probably acting within his authority to hire this helper. If he wasn’t the supervisor, then whoever was either didn’t know or didn’t question why an extra employee was at the site that morning, which again could indicate that it was a normal procedure for them.
alecfinn

So WC is paid to the unlawfully employed? That does not sound even a little right…………
Ex: I empty a tray of leftover food from a table at the local malls food court and get hurt. I am to be covered under WC if I think or believe I am employed? The reason I think or believe I am employed even though I have not made out a application…..(perhaps I am a day worker in construction) and happen to be in the mall……. but I think or believe I am employed because I was asked to help by any person employed by the Mall? I believe I am an employee because a person employed in the food court told me I was? That person also said I would get a paycheck and that person was a supervisor?
That concept does not in any way seem right………And I am for an employee that gets hurt at work getting WC………But this………..This is all verbal I know there are folk that get hired off the street but they get WC? Do they pay taxes are their wages even reported? I feel really bad for the man that got hurt but to pay him WC because
“An employee is any person “engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully of unlawfully employed.”
Sounds outrageous and just wrong………Or am I alone with this feeling?