BEFORE ROY NOBLE LEE, DAN LEE and GRIFFIN
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Champion Cable Construction Company, Inc., and United States Fidelity & Guaranty Company, carrier, appeal from a judgment entered by the Circuit Court of Pontotoc County, Mississippi, reversing the Mississippi Workers' Compensation Commission order denying compensation benefits to Turner Monts. The lower court adopted the finding and opinion of the administrative law judge and granted benefits to Monts. Champion assigns two (2) errors in the judgment below.
The appellant, Champion Cable Construction Company, Inc. [Champion] contracted with Byers Communication to run and rig cable systems at Ft. Myers Beach, Florida, and Miami, Florida. In November, 1982, Madison Rowzee, owner of Champion, contacted appellee, seeking help to complete the Ft. Myers Beach project on schedule. Appellee was experienced in laying and rigging cable, and, according to him, Rowzee needed two crews of three men each to lay approximately fifteen (15) to twenty (20) miles of cable in Ft. Myers Beach, Florida, and Rowzee and appellee orally agreed that appellee would be paid ten cents (10 cents) per foot for strand or feeder cable laid, and twelve cents (12 cents) per foot for trunk cable laid; that Monts would use the two trucks he owned for the job; and that Rowzee would supply any other equipment not owned but needed by appellee; and that Rowzee was to furnish general liability insurance coverage and workers' compensation coverage" on all the men. "
Accordingly, Monts gathered the two crews, which included himself as one of the six members. It was his decision as to how the crew members would be paid, and he paid each crew member one and one-half cent (1-1/2 cents) per foot of feeder and strand cable laid, and two cents (2 cents) per foot for trunk cable laid. He was not given any travel allowance, nor was any federal tax or social security tax withheld from the payments made by Champion to him.
When appellee started the Ft. Myers project, a
representative from Byers Communication inspected his crews' work daily and verified the footage of line laid each week. After verification, Champion would wire the payment to Monts in Ft. Myers Beach, Florida. Appellee had no company or company name under which he operated.
Rowzee testified for Champion that appellee had no workers' compensation insurance on his crew members and Rowzee agreed to provide such insurance. Further, that he could have terminated appellee should his work have failed to meet the required specifications on a continuing basis.
Bobby Fortner, one of appellee's crew members, was called as a witness and added that he worked for, and answered to, appellee and that appellee deducted the motel bill from his pay and disbursed the balance due to him each week.
While climbing a pole during work on the Ft. Myers Beach project on December 18, 1982, appellee fell eighteen (18) to twenty (20) feet injuring his back. Subsequently, surgery was performed on him in May and December of 1983 for a herniated disc. Depositions from expert physicians indicated that appellee had not received maximum medical recovery at the time of the hearing below.
The administrative law judge found that appellee was an employee of Champion; that from September 6, 1983, until November 28, 1983, he was temporarily partially disabled and earned $200.00 per week; that prior to the injury, appellee earned an average weekly wage of $750.00; and that appellee was entitled to compensation in the amount of $112.00 per week for temporary partial disability.
On July 12, 1985, a majority of the Workers' Compensation Commission reversed the administrative law judge's order, and found that appellee was a subcontractor and not an employee of Champion. On appeal, the Circuit Court of Pontotoc County reversed the Commission's order and adopted the dissent of the third Commission member, finding appellee to be an employee of Champion entitled to workers' compensation benefits. Thus, the appeal to this Court.
I. THE LOWER COURT ERRED IN FAILING TO APPLY THE SUBSTANTIAL EVIDENCE TEST IN ITS REVIEW OF THE DECISION OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION.
II. THE LOWER COURT ERRED IN REVERSING THE FINDING OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION WHICH FOUND THAT TURNER MONTS WAS A SUBCONTRACTOR
AND NOT AN EMPLOYEE OF CHAMPION CABLE CONSTRUCTION CO., INC.
The two assigned errors are related and will be ...