What Do You Think: Was Company Subject to Workers’ Compensation for Injured Landscapers?

Frank Ferreri

Phoenix, AZ (WorkersCompensation.com) – What makes a worker’s employment “regular” versus “unpredictable” for workers’ compensation purposes?

That question recently came up in an Arizona case involving “on call” landscapers and a truck accident.

Two landscapers were traveling in a pickup truck to work for a landscaping company when they were involved in an auto accident. They went to the emergency room afterward, but neither landscaper experienced serious injuries.

Both received treatment from a chiropractor and filed workers’ compensation claims. The company denied liability, arguing that it did not regularly hire employees and, therefore, was not an employer subject to workers’ compensation liability.

The Industrial Commission of Arizona held a hearing to determine whether the company was an employer under state law.

The landscapers testified before the administrative law judge that they had worked full time for the company for approximately five months prior to the accident, repaired irrigation systems, planted vegetation, installed pavers, were paid weekly in cash, and were supplied with a truck equipped with tools. One of the landscapers kept the truck at his house so that he could pick up the other landscaper and drive to job locations.

On the morning of the accident, the truck had been kept at the landscaper’s house for two weeks. After the accident, the company asked the landscapers to do more work, but they declined because the were recovering from their injuries.

The ALJ determined that the company regularly employed the landscapers, showing that it was a covered employer to whom workers’ compensation liability applied.

The company appealed to court.

Under Arizona law, employers are subject to workers’ compensation law when they have workers or operatives regularly employed in the same business or establishment under contract of hire. The law defines “regularly employed” to include all employments, whether continuous throughout the year, or for only a portion of year, in the “usual trade, business, profession or occupation of an employer.”

However, an employer is not subject to workers’ compensation law in Arizona if it hires “only occasionally and unpredictably.”

Was the company subject to workers’ compensation liability regarding the landscapers?

A. Yes. The landscapers worked and remained “on call” for the company for nearly five months, making their employment “regular” under the law.

B. No. The company hired the landscapers for short-term labor that depended on the requirements of each job.

If you chose A, you agreed with the court in Ramirez Bros Landscaping v. Industrial Commission of Arizona, No. 1 CA-IC 21-0011 (Ariz. Ct. App. 11/16/21, unpublished), which held in the landscapers’ favor by finding that they company had a plan of regular employment for them, bringing them within workers’ compensation coverage.

“The facts show that [the company] had regularly hired [the landscapers] for five months before the accident,” the court reasoned. “In addition, [the company] provided [them] with a truck and tools, showing a lasting relationship with ongoing expectations and responsibilities.”

The court also pointed out that the landscapers worked independently, and not alongside the company’s owner, showing that they weren’t brought on just to help temporarily alleviate his workload.

Instead, the landscapers had regular, predictable employment with the company, and so the court affirmed the ALJ’s conclusion that the company was a covered employer.

This feature does not provide legal advice.