{ "id": 3458845, "name": "GEORGE LISTER, d/b/a Blackhawk Improvement Company, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hubert P. DeLoose, Appellee); HUBERT P. DeLOOSE, Appellee, v. THE INDUSTRIAL COMMISSION et al. (George Lister, d/b/a Blackhawk Improvement Company, Appellant)", "name_abbreviation": "Lister v. Industrial Commission", "decision_date": "1986-11-06", "docket_number": "Nos. 3-86-0095WC, 3-86-0096WC cons.", "first_page": "286", "last_page": "292", "citations": [ { "type": "official", "cite": "149 Ill. App. 3d 286" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "106 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "187" } ], "opinion_index": 0 }, { "cite": "412 Ill. 279", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2663233 ], "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0279-01" ] }, { "cite": "447 N.E.2d 404", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "406" }, { "page": "406-07" } ], "opinion_index": 0 }, { "cite": "95 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111108 ], "weight": 2, "pin_cites": [ { "page": "80" }, { "page": "80-81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0076-01" ] }, { "cite": "464 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 325", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3428380 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0325-01" ] }, { "cite": "178 N.E.2d 646", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "23 Ill. 2d 106", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2795753 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/23/0106-01" ] }, { "cite": "317 N.E.2d 522", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "58 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2952589 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-2d/58/0155-01" ] }, { "cite": "381 N.E.2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "72 Ill. 2d 454", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5442501 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/72/0454-01" ] }, { "cite": "416 N.E.2d 1078", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "1080" }, { "page": "1080" } ], "opinion_index": 0 }, { "cite": "84 Ill. 2d 14", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046580 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "20" }, { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0014-01" ] } ], "analysis": { "cardinality": 660, "char_count": 14584, "ocr_confidence": 0.748, "pagerank": { "raw": 2.3031884561511695e-07, "percentile": 0.7875995859218047 }, "sha256": "13984076113228d7b89472de630f4d7179fcb44161b97dd4e34dec71732e71d6", "simhash": "1:1ce53d96837997cd", "word_count": 2215 }, "last_updated": "2023-07-14T21:36:15.078878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GEORGE LISTER, d/b/a Blackhawk Improvement Company, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hubert P. DeLoose, Appellee).\u2014HUBERT P. DeLOOSE, Appellee, v. THE INDUSTRIAL COMMISSION et al. (George Lister, d/b/a Blackhawk Improvement Company, Appellant)." ], "opinions": [ { "text": "JUSTICE KASSERMAN\ndelivered the opinion of the court:\nClaimant, Hubert DeLoose, filed an application for adjustment of claim under the Worker\u2019s Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for personal injuries which allegedly arose out of and in the course of his employment with respondent, George Lister, d/b/a Blackhawk Improvement Co. After a hearing conducted on September 15, 1982, the arbitrator awarded the claimant permanent total disability compensation of $114.08 per week for the remainder of his life (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(f)) and $165,610.82 in reasonable and necessary medical expenses (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)). On review the Industrial Commission affirmed the decision of the arbitrator. The circuit court confirmed the decision of the Industrial Commission and awarded petitioner an additional $49,608.22 in medical expenses. The respondent has appealed to this court pursuant to Supreme Court Rule 22(g) (103 Ill. 2d R. 22(g)). We note that although this cause has been stylized as an appeal by respondent and a cross-appeal by claimant, the only party raising an issue on appeal is respondent.\nRespondent\u2019s only contention on appeal is that the Industrial Commission\u2019s finding that claimant was an employee of respondent rather than an independent contractor is contrary to the manifest weight of the evidence.\nThe record indicates that, beginning in 1977, claimant, an aluminum-siding applicator, worked on several siding jobs obtained by respondent, a home-improvement contractor. On October 28, 1977, claimant fell from a ladder while applying siding on one of these jobs. Claimant sustained extensive personal injuries from this fall which rendered him paraplegic. The following evidence is relevant in determining the fundamental issue of whether claimant was an employee of respondent or an independent contractor at the time the injuries occurred.\nRespondent testified that he had operated Blackhawk Improvement as a sole proprietorship for about 12 years. With the exception of a secretary who worked for him for about three years, respondent never withheld income or social security taxes or paid unemployment compensation insurance for any person performing work for his business. Respondent treated persons working for him other than his secretary as \u201csubcontractors\u2019\u2019 who were required to pay their own taxes and insurance.\nAlthough respondent\u2019s business encompassed virtually every type of home improvement, the application of aluminum siding constituted a major portion of his business. Respondent estimated that when claimant was injured, siding application constituted 90% of his business. Respondent testified that six or seven siding applicators were working for him at this time. Respondent considered everyone who worked for him \u201cfull time because I don\u2019t like to switch around no more than I have to.\u201d\nRespondent made each siding applicator sign a \u201csubcontractor\u2019s form\u201d prior to each job. This instrument stated that the siding applicator was to furnish his own tools, equipment, and workmen\u2019s compensation and general liability insurance. According to respondent, this form was used to reduce his cost of doing business by eliminating the obligation to pay social security and unemployment taxes and workers\u2019 compensation insurance premiums. Respondent had claimant sign several of these forms in advance for the sake of convenience.\nWhile \u201csubcontractors\u201d such as plumbers, electricians, carpenters, and roofers submitted bills to respondent, which such subcontractors prepared themselves, siding applicators were paid a certain amount per piece installed (e.g., soffits, gutters, and panels) which, though determined by respondent, was based upon generally accepted rates paid to siding applicators by other home-improvement contractors in the area. When a dispute arose as to the amount of payment, respondent and the siding applicator would settle it between themselves. The assignment of work to all \u201csubcontractors\u201d was respondent\u2019s prerogative. After claimant was injured, respondent, not claimant, determined who would finish the job.\nApparently, all \u201csubcontractors\u201d furnished their own tools. Although it is unclear who was responsible for supplying building materials to the \u201csubcontractors,\u201d it is clear that respondent was solely and exclusively responsible for supplying the materials applied by the siding applicators.\nAlthough siding applicators working for respondent were not required to account for their time, respondent frequently visited each work site to inspect the progress and quality of work. If either the progress or the quality of work failed to meet his approval, respondent would take corrective action. For example, when claimant was behind on the progress of a job, respondent himself helped claimant to complete the job. Respondent stated that he would tell his siding applicators to correct deficiencies he noted in their workmanship and that they would not be hired again if they did not meet his standards of quality and efficiency. Conversely, respondent was apparently most concerned with the cost, rather than the efficiency and quality, of work of \u201csubcontractors\u201d who submitted bills to him.\nSome of respondent\u2019s siding applicators worked in teams; some, like claimant, worked alone. Respondent maintained that teams were paid a lump sum for each job and that the division of this sum was left to the team\u2019s discretion. On one occasion, however, respondent assigned an 18-year-old man to assist on a job on which claimant was working. Claimant related that he had not requested this assistance and that his pay was \u201cdocked\u201d by an amount which he assumed respondent attributed to the labor of the young man. Respondent neither confirmed nor denied claimant\u2019s assertion regarding the amount claimant was paid on this occasion.\nClaimant testified as follows: He had worked as a siding applicator for 20 years prior to the instant fall. Although he worked for several home-improvement contractors during these years, claimant tried to \u201cstay in good\u201d with one contractor at a time. During 1977, he worked exclusively for respondent even though respondent employed him only half the time (approximately 12 jobs). It is apparently conceded that respondent paid claimant $2341.15 during 1977.\nOn one occasion respondent took claimant from his current job site to a prior job site. Respondent instructed claimant to do additional work at the prior job site. On several occasions claimant transported materials to his job site with respondent\u2019s truck. Although claimant was purchasing this truck from respondent prior to the fall, respondent kept title to and possession of the truck.\nAll contractors, including respondent, paid claimant the same piecework rate. No contractors, including respondent, deducted social security or income taxes from claimant\u2019s pay. Most contractors, in-eluding respondent, required claimant to sign a \u201csubcontractor\u2019s form\u201d as a precondition for employment. Claimant admitted that this form purportedly made him a \u201csubcontractor.\u201d\nRespondent asserts that the. instant case may be distinguished from all other siding-applicator cases (Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 416 N.E.2d 1078; Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454, 381 N.E.2d 697; Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155, 317 N.E.2d 522; Greenberg v. Industrial Com. (1961), 23 Ill. 2d 106, 178 N.E.2d 646; Mazur v. Industrial Com. (1984), 124 Ill. App. 3d 325, 464 N.E.2d 721) because the parties in this case clearly understood through the \u201csubcontractor form\u201d that their relationship was that of contractor/subcontractor. Although this understanding is a factor to consider in determining claimant\u2019s status, it does not, as a matter of law, establish such status. See Wenholdt v. Industrial Com. (1983), 95 Ill. 2d 76, 80, 447 N.E.2d 404, 406.\nSince many jobs contain elements of each, there is no clear line of demarcation between the status of employee and independent contractor. (Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 20, 416 N.E.2d 1078, 1080.) It may therefore be necessary to consider a number of factors with evidentiary value, such as right to control the manner in which work is done; method of payment; right to discharge; skill required in the work to be done; who provides tools, materials, or equipment; whether the workmen\u2019s occupation is related to that of the alleged employer; and whether the alleged employer deducted for withholding tax. The right to control work is the single most important factor in determining the parties\u2019 relationship. (Wenholdt v. Industrial Com. (1983), 95 Ill. 2d 76, 80-81, 447 N.E.2d 404, 406-07.) Moreover, the Industrial Commission\u2019s finding after considering these factors will not be disturbed unless the finding is contrary to the manifest weight of the evidence. Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 20, 416 N.E.2d 1078, 1080.\nAs previously noted, the parties provided through written agreement that their relationship was contractor/subcontractor. Furthermore, it is undisputed that respondent did not withhold any taxes from claimant\u2019s pay. These factors favor the determination that there was an independent-contractor status.\nWhile respondent paid \u201csubcontractors\u201d such as plumbers, electricians, carpenters, and roofers in accordance with bills prepared by these \u201csubcontractors,\u201d siding applicators were paid a certain amount per piece which had been established by area home-improvement contractors. Since these contractors, including respondent, set these piecework rates for all siding applicators, and since respondent calculated the number of pieces each applicator installed, the method of payment favors the determination that claimant\u2019s status was as an employee.\nRespondent testified that he reserved the right not to rehire \u201csubcontractors\u201d if they failed to meet his standards of cost, efficiency, or quality. In the case of \u201csubcontractors\u201d who submitted bills, respondent apparently paid close attention to cost. In the case of siding applicators, respondent paid specific attention to efficiency and quality, apparently because he knew his labor cost was fixed by the piecework rate. Although respondent could justifiably refuse to rehire any \u201csubcontractor\u201d working for him, we note that respondent apparently exercised a much greater degree of authority over the individual activities of the siding applicators than he did over the activities of other \u201csubcontractors.\u201d However, as it is not clear that respondent had the right to discharge siding applicators more easily than other \u201csubcontractors,\u201d we must find this factor inconsequential.\nThe parties agree that claimant was a skilled workman at the time he was injured. However, this factor is of little consequence because claimant\u2019s ability to use his skill in a competitive manner was forestalled by the piecework rates for siding installation fixed by the area home-improvement contractors.\nClaimant furnished his own tools for the work he performed; respondent provided the materials. We therefore find that this factor is inconsequential.\nRespondent testified that in 1977, the year claimant was injured, siding application constituted about 90% of his business. Since claimant was working as a siding applicator at the time he was injured, claimant\u2019s occupation was strongly related to respondent\u2019s business. This factor favors the determination that claimant was an employee.\nThe balance of factors thus far is relatively equal. We now consider the degree of control respondent exerted over claimant\u2019s work.\n\u201cAn independent contractor is often defined as one who renders service in the course of a recognized occupation, and who executes the will of the person for whom the work is done with respect to the result to be accomplished, rather than the means by which the result is accomplished.\u201d (Henry v. Industrial Com. (1952), 412 Ill. 279, 283, 106 N.E.2d 185, 187.) Thus, the crucial inquiry is the degree of control respondent exerted over the means by which claimant completed his tasks.\nAlthough claimant was paid piecework and not by the hour, respondent frequently visited his job site to inspect the quality and progress of the work. When claimant\u2019s job was not progressing quickly enough, respondent either helped claimant himself or brought in someone else to help claimant. Whereas teams of siding applicators were paid a lump sum which the team members were to divide among themselves, claimant often worked alone. When respondent brought in an 18-year-old helper to speed the progress of the work, claimant did not split his pay from the job with this young man. Instead, claimant stated that his pay was \u201cdocked\u201d for aid which he did not solicit. Claimant further testified that on one occasion respondent took claimant from his current job site to a prior job site, where claimant performed additional work pursuant to respondent\u2019s instructions. Moreover, it is undisputed (1) that claimant used respondent\u2019s truck to haul materials purchased by respondent to claimant\u2019s job site, (2) that claimant signed several blank \u201csubcontractor\u2019s forms\u201d in advance of work for the sake of convenience, and (3) that both claimant and respondent considered claimant \u201cfull time.\u201d After reviewing this evidence, we conclude that respondent exerted a significant degree of control over the means by which claimant accomplished his work. Consequently, the Industrial Commission\u2019s finding that the balance of factors in the case at bar favors the determination that claimant\u2019s status was that of employee rather than independent contractor is not contrary to the manifest weight of the evidence. The circuit court\u2019s ruling confirming the Industrial Commission\u2019s decision must therefore be affirmed.\nFor the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.\nAffirmed.\nWEBBER, P.J., and BARRY, LINDBERG, and McNAMARA, JJ., concur.", "type": "majority", "author": "JUSTICE KASSERMAN" } ], "attorneys": [ "Hubbard B. Neighbour, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellant.", "Allan Hartsock, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee." ], "corrections": "", "head_matter": "GEORGE LISTER, d/b/a Blackhawk Improvement Company, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hubert P. DeLoose, Appellee).\u2014HUBERT P. DeLOOSE, Appellee, v. THE INDUSTRIAL COMMISSION et al. (George Lister, d/b/a Blackhawk Improvement Company, Appellant).\nThird District (Industrial Commission Division)\nNos. 3\u201486\u20140095WC, 3\u201486\u20140096WC cons.\nOpinion filed November 6, 1986.\nHubbard B. Neighbour, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellant.\nAllan Hartsock, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee." }, "file_name": "0286-01", "first_page_order": 308, "last_page_order": 314 }