FROM THE OFFICE OF WORKERS' COMPENSATION NO. 14-07466,
DISTRICT "EIGHT" Honorable Robert Varnado,
Workers' Compensation Judge
R. Burgos Robert J. Daigre Gabriel O. Mondino George M.
McGregor BURGOS & ASSOCIATES, L.L.C. COUNSEL FOR
Oliver Person ATTORNEY AT LAW, COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Roland L. Belsome, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew-Woods
L. Belsome, Judge
is an appeal from a ruling by the Office of Workers'
Compensation ("OWC"). The OWC ruling determined
that the appellant, Federico Martinez was not entitled to
workers' compensation benefits.
following facts of the case were detailed in a previous
appeal to this court:
Federico Espinoza Martinez was hired to perform work for
Jarislov Rames. Mr. Martinez was lowering a washer/dryer
combination unit from a second floor apartment with the help
of four other people. Mr. Martinez testified that he received
a laceration on his hand when one of the cords used to lower
the unit "just busted or I don't know exactly how it
happened, causing the unit to come down all of the [sic]
sudden." He and the others completed lowering the unit
and then he informed Mr. Rames of his injury. Mr. Rames drove
Mr. Martinez to the emergency room and paid the initial
emergency room fee of $500 to ensure Mr. Martinez received
treatment. Mr. Martinez's laceration required stitches.
When Mr. Martinez arrived to collect his pay, Mr. Rames
deducted a portion of the $500 emergency room fee from Mr.
Martinez's earnings. Mr. Rames informed Mr. Martinez that
he would deduct the remainder of the fee from future
earnings. Mr. Martinez did not speak to Mr. Rames after the
reduction of his pay.
Thereafter, Mr. Martinez filed a Disputed Claim for
Compensation asserting that he was owed workers'
compensation benefits for his injuries. After a hearing on
the issue, the OWC found that Mr. Martinez was an independent
contractor, not an employee of Mr. Rames, and benefits were
appeal to this Court, Mr. Martinez maintained that the OWC
erred by failing to apply the manual labor exception to the
independent contractor doctrine.In that appeal, this Court
remanded the matter to the OWC for a determination on the
manual labor exception. On remand, the OWC found that the
facts of this case did not fall within the manual labor
exception set forth in La. R.S. 23:1021(7).We disagree.
instant appeal, the sole issue before the Court is whether
the facts and circumstances in this case support the
application of the manual labor exception. Appellate
courts' standard of review for the OWC's findings of
fact is manifest error/clearly wrong.
stated in La. R.S. 23:1021(7), an independent contractor is
covered by the provisions of workers' compensation when a
substantial part of his work time is spent performing manual
labor. The Louisiana Supreme Court has held that for an
independent contractor to be covered under the manual labor
exception, it must be shown that a substantial part of his
work is spent performing manual labor in carrying out the
terms of his contract with the principal and the work is
essential to the principal's trade, business, or
occupation. The case law has consistently defined
manual labor as work where the physical element outweighs the
mental element. "The determination of whether a
particular activity constitutes a part of the trade,
business, or occupation of a principal must be decided on the
facts of each case."
Court was presented with similar facts in Steinfelds v.
Villarubia. In that case, Mr. Villarubia was engaged in
several business activities involving a property known as the
Degas House, a historic museum/guest house in New Orleans.
Mr. Villarrubia hired Mr. Steinfelds as a contract laborer to
perform carpentry work at a building on site. While
performing the work, Mr. Steinfelds was injured when he fell
from scaffolding. In Steinfelds, this Court noted
that it is not just the title of independent contractor that
determines if workers' compensation benefits are
available; it is the substance of the relationship between
the contractor and the principal. This Court found that Mr.
Steinfelds was performing manual labor and the manual labor
exception applied because "the repair and renovation of
the buildings was essential to the operation of the various
businesses" Mr. Villarubia was managing. Thus, Mr.
Steinfelds' work was an essential part of Mr.
Villarubia's trade, business, or occupation.
Likewise, in the instant case, Mr. Martinez did carpentry and
maintenance work for Mr. Rames. Mr. Martinez's work was
clearly more physical than mental which meets the criteria
for manual labor. The next inquiry is whether the work being
performed at the time of Mr. Martinez's injury was part
of Mr. Rames' trade, business, or occupation. The record
established that Mr. Rames is in the business of offering
short-term rentals through the website Air B&B. Mr.
Martinez testified that he worked at several apartments owned
by Mr. Rames. On the day of his injury, Mr. Martinez was
moving a washer and dryer from one of Mr. Rames' rental
apartments. Mr. Martinez explained that the scope of his work
that day was to remove the washer and dryer from the
apartment, and to open the wall where the washer and dryer
was previously housed to ...