J-King v. Conley

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

J-KING EXCAVATING; ARIZONA VALLEY HOME BUILDERS, LLC
d/b/a J-KING EXCAVATION; J-KING EXCAVATION, LLC d/b/a J-
KING EXCAVATING; BOB MICHAEL ELLIS, Petitioner Employers,

v.

INDUSTRIAL COMMISION OF ARIZONA, Respondent,

AMBER CONLEY, Respondent Employee,

ICA SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent
Party in Interest.

No. 1 CA-IC 24-0025
FILED 02-27-2025

Special Action - Industrial Commission
No. 20223550014
The Honorable Robert E. Trop, Administrative Law Judge

AFFIRMED

COUNSEL

Corl Law Practice PLLC, Chandler
By Robert D. Corl
Counsel for Petitioner Employer

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent ICA
Snow Carpio Weekley PC, Phoenix
By Brian A. Weekley
Co-Counsel for Respondent Employee

Broening Oberg Woods & Wilson PC, Phoenix
By Kelley M. Jancaitis
Co-Counsel for Respondent Employee

Industrial Commission of Arizona, Phoenix
By Scott J. Cooley
Counsel for Respondent Party in Interest

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge David D. Weinzweig joined.

C A T L E T T, Judge:

¶1 In this workers’ compensation case, J-King Excavation, LLC
(“J-King”) argues the Administrative Law Judge (“ALJ”) erred in finding
that Amber Conley (“Conley”) was an employee eligible for workers’
compensation benefits. Because the ALJ correctly concluded Conley was J-
King’s employee, we affirm the award.

FACTS AND PROCEDURAL HISTORY

¶2 We view the evidence in the light most favorable to affirming
the award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105 ¶ 16 (App. 2002).

¶3 Bob Michael Ellis (“Ellis”) is the sole owner of J-King. In May
2022, Ellis interviewed and hired Conley to be a ground worker. Ellis
instructed Conley on her responsibilities, which included watering the
ground at excavation sites to control dust, picking up equipment or tools
for other workers, and cleaning and fueling excavation equipment. Ellis
provided Conley with a truck, company debit card, and the tools and
equipment required for her job. J-King paid Conley per hour on a weekly
basis without payroll or tax deductions.

¶4 In December 2022, Ellis asked Conley to clean a piece of
grading equipment to prepare it for transport. Conley climbed on the

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equipment to clean the back window and fell, sustaining injuries. Conley
filed a workers’ compensation claim, which the Industrial Commission of
Arizona (“ICA”) denied. Conley requested a hearing with an ALJ.

¶5 The ALJ held a hearing where Conley testified that she
believed J-King was her employer and, as her boss, Ellis had the right to
hire and fire her. Ellis testified J-King did not have any employees—only
independent contractors. Ellis also testified Conley’s employment was
“open-ended,” but the job on which she was injured was the last job he had
for her.

¶6 Applying the control test, the ALJ found Conley and J-King
had a regular, open-ended relationship, J-King provided Conley with
equipment necessary to perform her job, Ellis assigned and instructed
Conley on what tasks to perform, J-King paid Conley per hour on a weekly
basis, and Conley used a J-King debit card for supplies. The ALJ also noted
a lack of evidence that Conley worked as an independent contractor on a
regular basis for any other company during the time she worked for J-King.
Finally, the ALJ found Conley’s cleaning and dust control duties were not
incidental to J-King’s business operations because J-King was legally
required to control dust at its excavation sites and clean equipment to
prevent debris from falling off during transport. The ALJ concluded
Conley’s injury arose out of and during an employer-employee relationship
with J-King and therefore found Conley’s claim compensable. At J-King’s
request, the ALJ issued a decision upon review and affirmed the award.

¶7 J-King sought special action review. We have jurisdiction. See
A.R.S. §§ 12-120.21(A)(2), 23-951(A); Ariz. R.P. Spec. Act. 21.

DISCUSSION

¶8 J-King argues the ALJ made factual errors in applying A.R.S.
§ 23-902 and the control test and concluding that Conley was an employee,
not an independent contractor. Whether a worker was an employee is a
mixed question of law and fact. We defer to the ALJ’s factual findings
underlying its determination that a worker was an employee. Danial v.
Indus. Comm’n, 246 Ariz. 81, 83 ¶ 11 (App. 2019). But whether the factual
findings adequately support that the worker was an employee is a question
of law we review de novo. Id.

¶9 To start, we reject J-King’s argument that the ALJ made
factual errors in applying § 23-902 and the control test. J-King argues the
ALJ ignored testimony proving Conley was an independent contractor. To
the contrary, the ALJ’s decisions thoroughly and accurately summarized

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the testimony and evidence. The ALJ did not ignore testimony but instead
found certain testimony more credible—a determination it was entitled to
make as “the sole judge of witness credibility.” Holding v. Indus. Comm’n,
139 Ariz. 548, 551 (1984). Because those credibility determinations were
reasonable, we will not disturb them. See Henderson-Jones v. Indus. Comm’n,
233 Ariz. 188, 191–92 ¶ 9 (App. 2013) (“[T]he ALJ is at liberty to choose
whichever [indicia] he or she finds most credible, and this court will not
disturb the ALJ’s conclusion unless it is wholly unreasonable.”).

¶10 Under Arizona workers’ compensation laws, only employees
injured in the course of employment are eligible for compensation. Danial,
246 Ariz. at 83 ¶ 12. An “employee” is a worker “over whose work the
employer retains supervision or control, and the work is a part or process
in the trade or business of the employer[.]” A.R.S. § 23-902(B). An
independent contractor, on the other hand, is not eligible for workers’
compensation. An independent contractor is a worker who is “not subject
to the rule or control of the business for which the work is done, but is
engaged only in the performance of a definite job or piece or work, and is
subordinate to that business only in effecting a result in accordance with
that business design[.]” A.R.S. § 23-902(C).

¶11 In workers’ compensation cases, we apply the control test to
determine whether a particular worker is an employee or an independent
contractor. See Cent. Mgmt. Co. v. Indus. Comm’n, 162 Ariz. 187, 189–90 (App.
1989). We look “to the totality of the facts and circumstances of each case,
examining various indicia of control.” Home Ins. Co. v. Indus. Comm’n, 123
Ariz. 348, 350 (1979). These indicia include:

[T]he duration of the employment; the method of payment;
who furnishes necessary equipment; the right to hire and fire;
who bears responsibility for workmen’s compensation
insurance; the extent to which the employer may exercise
control over the details of the work, and whether the work
was performed in the usual and regular course of the
employer’s business.

Id. “No one factor is determinative[.]” Munoz v. Indus. Comm’n, 234 Ariz.
145, 150 ¶ 16 (App. 2014).

¶12 Multiple indicia support that Conley was J-King’s employee.
Conley’s relationship with J-King was “open-ended,” not for a specific job
or contract. See Cent. Mgmt. Co., 162 Ariz. at 190 (finding an employee
relationship where a worker’s position was permanent as opposed to being

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hired only for a particular job or piece of work). J-King paid Conley per
hour on a weekly basis. See Swichtenberg v. Brimer, 171 Ariz. 77, 83 (App.
1991) (finding an employee relationship where the worker was paid by the
hour as opposed to being paid by the job). J-King provided Conley with
the tools and equipment needed for her job, including a work truck and
debit card. See id. (finding an employee relationship where the employer
provided all equipment and supplies). J-King was legally required to
control dust at excavation sites and clean dirt and debris off equipment
before transport. So Conley performed her work in the usual and regular
course of J-King’s business. See id. (finding an employee relationship where
a worker performed duties in the usual and regular course of the
employer’s business). J-King instructed Conley how to clean the grading
equipment, the task she was performing when injured. See id. (finding an
employee relationship where the employer gave “specific directions
concerning the very job” where the worker was injured). As Conley’s boss,
Ellis could hire or fire her. Finally, Conley explained that Ellis instructed
her how to perform her duties and Ellis testified he sent his workers job
assignments, which supports that J-King exercised control over the details
of Conley’s work. Under the control test, Conley was an employee.

¶13 J-King argues Conley was injured cleaning equipment on a
Sunday, when J-King is “closed,” and no one is authorized to work. But J-
King’s first instruction to clean the equipment came on Friday afternoon, so
the equipment could be picked up Monday morning. The equipment first
arrived at Conley’s jobsite Sunday morning. As J-King instructed, Conley
worked on cleaning the equipment so it would be ready by Monday
morning. To do so, she climbed onto the equipment to clean the back
window, when she fell.

¶14 Contrary to J-King’s argument, Conley worked on Sunday
because she was not provided with the necessary equipment until Sunday,
and J-King wanted her to finish by Monday morning. So, even if J-King
was “closed” on Sundays, Conley was using equipment that arrived on
Sunday to meet a Monday deadline. This supports that J-King exercised
control consistent with an employee-employer relationship.

¶15 We agree with the ALJ that Conley was an employee eligible
for workers’ compensation when she was injured.

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CONCLUSION

¶16 We affirm the award.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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