JOHN ADAMS, D/B/A ADAMS ROOFING COMPANY, AND ST. PAUL MERCURY INDEMNITY COMPANY, PETITIONERS,
v.
EMERSON F. WAGNER AND FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS
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The Florida Supreme Court granted a writ of certiorari to review the Florida Industrial Commission's decision that a 70-year-old roofer was an employee rather than an independent contractor, reversing the commission's order and reinstating the deputy commissioner's finding of independent contractor status based on substantial evidence supporting that determination.
The Court held that the deputy commissioner's finding of independent contractor status was supported by substantial competent evidence and correct application of law, and therefore could not be disturbed by the full commission, which lacks authority to make its own findings of fact when the deputy has made detailed, supported findings.
“Whether one is an employee is a question of fact to be determined by the deputy, and where such determination is supported by substantial competent evidence and the deputy applies correct principles of law thereto, as we hold he did here, the findings cannot be disturbed.”
Establishes the controlling legal standard that deputy commissioner fact-finding supported by substantial evidence cannot be overturned by the full commission.
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Join FLexlaw to unlock all legal intelligenceEmerson F. Wagner, age 70, suffered severe injuries falling from a roof while applying asbestos shingles on May 17, 1957. Wagner worked with his sons …
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Petitioners seek review of an order of the full commission vacating an order of the deputy commissioner which found the claimant to be an independent contractor rather than an employee.
Emerson F. Wagner, 70 years of age, suffered severe injuries when on or about May 17, 1957, he fell from a roof upon which he had been applying asbestos shingles. Claimant had been working with his sons for the petitioner. The men usually worked as a team and were paid by the completed job.
The deputy commissioner supported his conclusion that the claimant was an independent contractor by cogent, detailed and well prepared findings of fact. He found “[t]he Wagners were not supervised in their work. They were paid by the completed job, that shingle roofing is an art, that the Wagners were not controlled as to their hours of work.” He recited that “Ernest Lee Wagner also testified that he did not make social security deductions for his father and brother and that he did not withhold income tax. * * * John Adams testified * * * that on the occasions when he had shingle roofing to be done he contracted it out by the job * * * that he did not supervise the work that he contracted to the Wagners; that he was interested in and relied upon the end result; that he paid for the work by the job at the conclusion of the work. Whereas, with respect to his own employees he testified that he employed the members of his various crews by the hour; that he paid social security on them and withheld income tax, whereas on the Wagners none of these were done.” These quotations from the deputy’s compensation order will be per*130tinent to the discussion which will follow of the conclusion reached by the full commission overruling the deputy’s order. The deputy commissioner summarized his findings as follows:
“The undersigned Deputy Commissioner finds that Emerson Wagner was a partner or joint adventurer with his sons in the roofing business and that they were independent contractors and not employees of Adams Roofing Company on the basis of the following tests, but not limited exclusively to these tests, as being in favor of independent contractor.
“(a) Adams contracted for the completed job and did not supervise the work.
“(b) The Wagners were hired by the job. The payment was by the completed job.
“(c) The Wagners had no regular hours of employment and were not paid by the hour.
“(d) Their activities on the job were not controlled by Adams.
“(e) Adams relied on the skill of the Wagners without supervision.
“(f) Shingle roofing was specialized work — not the regular roofing work of Adams.
“(g) No deductions for social security or income tax were made by Adams as he did for his employees.
“(h) No substantial equipment was supplied by Adams.
“(i) The Wagners worked as a team on roofing jobs.
“(j) The Wagners divided the money they received for a job equally or proratedly based on the squares each completed.
“(k) The cost and expenses, such as the truck expense of Ernest Lee Wagner, was included in the job expense.”
While on some of the points above mentioned it could be said that the evidence was in dispute, there is competent substantial evidence to support each of the findings. When the matter was thus presented to the full commission for its consideration on review, these findings of fact were conclusive. As a matter of fact, there is no determination of the full commission that any of the facts so found are not supported by competent substantial evidence.1
*131In finding the claimant was an employee rather than an independent contractor, the full commission uses the words, ■“ * * * it appears to us that the claimant is an employee rather than an independent contractor.” In so holding, the full commission has run contra to established compensation practice. The deputy specifically made findings of fact to which the full commission must adhere unless there is no competent substantial evidence in accordance with logic and reason for such adherence.2 The full commission may not make its own finding (if these observations could actually be considered as such) as it did in this case to the effect that, “it appears to us that claimant was an employee * * * ” when the probative value of the evidence was for the deputy commissioner to determine.3
In many cases we have made clear the authority of the full commission does not include that of making a finding of fact especially since the deputy has that exclusive right.4
Whether one is an employee is a question of fact to be determined by the deputy,5 and where such determination is supported by substantial competent evidence and the deputy applies correct principles of law thereto, as we hold he did here, the findings cannot be disturbed.
The writ is granted and the order of the full commission is quashed with directions to reinstate the order of the deputy commissioner.
It is so ordered.
THOMAS, C. J., and ROBERTS, THORNAL and O’CONNELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Aloff v. Neff-Harmon, Inc., 463 So. 2d 291 (Fla. 1st DCA 1984)…ployee whose injury arose out of and in the scope of his employment is ordinarily a question of fact to be decided by the trier of fact, be that judge, jury, or deputy commissioner. E.g., Rogers v. Barrett, 46 So. 2d 490 (Fla.1950); Adams v. Wagner, 129 So. 2d 129 (Fla.1961). Accordingly, it is reversible error to grant a summary judgment in favor of an employer on grounds that chapter 440 provides the exclusive remedy to the employee where ‘an issue of fact exists as to whether plaintiff was in the course an…
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Grillo v. BIG "B" Ranch, 328 So. 2d 429 (Fla. 1976)…chose to believe the admission. However, the Industrial Relations Commission rejected this choice and reversed the order of the Judge. It is clear that the Commission is not permitted to be a trier of fact in proceedings before it. Adams v. Wagner, 129 So. 2d 129 (Fla.1961). By usurping the role of the Judge in making a determination of credibility the Commission ignored the essential requirements of law. Therefore the writ of certiorari is granted, the order of the Commission is quashed and this case [*430]…
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West v. Sampson, 142 So. 2d 74 (Fla. 1962)…able law in reaching his conclusion, or stated another way, that the applicable law required a different conclusion on the facts found by the deputy, the commission is without authority to do what it did here. The case of Adams v. Wagner, Fla.1961, 129 So. 2d 129, is comparable to the case now before us. In that case the question in issue was whether a claimant was or was not an employee. The deputy held the claimant not to be an employee and the full commission, without' determining whether the order was su…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- US Cas. Co. v. Md. Cas. Co., 55 So.2d 741 (Fla. 1951)
- Hampton Hardy v. City OF Tarpon Springs, 81 So. 2d 503 (Fla. 1955)
- K. M. Magarian (Claimant) v. S. Fruit Distribs. (Employer) & Nat'l Cas. Ins. Co. (Carrier), 146 Fla. 773 (Fla. 1941)
- City Ice & Fuel Div. v. Smith, 56 So. 2d 329 (Fla. 1952)
- Peterson v. Highland Crate Coop., 156 Fla. 539 (Fla. 1945)
- Wiedman v. Daryl Prods. Corp., 127 So. 2d 448 (Fla. 1961)
- Patton Seafood Co. v. Glisson, 38 So.2d 839 (Fla. 1949)
- Blackman & Huckaby Enters. & Cent. Sur. & Ins. Corp. v. Jones, 104 So. 2d 667 (Fla. 1st DCA 1958)
- Rainsford v. McARTHUR Dairies, 108 So. 2d 914 (Fla. 3d DCA 1959)
- Marsh v. Seacord & Sankin, 93 So. 2d 902 (Fla. 1956)