Casual Employment Under Maryland Workers Compensation

STATEMENT OF FACTS

1. On or about September 15, 2013 the Plaintiff, Peter Stevens alleges that while working in Frederick on a painting job for Styles Painting and Remodeling, Inc. he slid off the roof and fell twelve feet to the ground thereby injuring his back and shoulder. (see attached workers’ compensation claim form and Workers Compensation transcript page 18 lines 23-25 and page 19 lines 1-6) Mr. Stevens explained how he was hurt (transcript page 18 lines 23 through 24, page 19 lines 1 through 4) when he states he was spraying the three car garage and as I was going toward the peak of the three car garage my feet came out in front of me and fell off the three car garage and I landed on the ground.
2. That a hearing was held before the Workers’ Compensation Commission on May 15, 2014 at which time the following issues were raised.
a) Was the claimant a covered employee?
b) Did the employee sustain an accidental personal injury arising out of and in the course of his employment?
c) Is the disability of the employee the result of the accidental personal injury arising out of and in the course of his employment?

After a lengthy hearing the Commission found on 5-27-14 that the Claimant, Peter Stevens was a covered employee of Styles Painting and Remodeling, Inc. and further found that the claimant sustained an accidental injury arising out of and in the course of his employment on September 5, 2013, that the disability to the claimant’s back is the result of the accidental injury.
3. That an Appeal of the decision of the Workers’ Compensation Commission was timely filed on June 23, 2014. That Motion for Summary Judgment was filed on or about January 5, 2015 by the Uninsured Employers Fund alleging that they are entitled to a Motion for Summary Judgment as a matter of law on the issue that the claimant was a casual employee at the time of the accident and therefore is not entitled to workers’ compensation benefits under Labor and employment Article 9-104(b).
4. That Peter Stevens testified at the hearing on May 15, 2014. At the hearing the parties agreed that the correct name of the employer was Styles Painting and Remodeling, Inc. (transcript page 6 starting on line 7 through line 10.) The claimant testified that he originally met the employer when he walked into a Lowes to buy paint, I see Mr. Styles at the counter I explained to him that I was looking for work through the winter to get me through the winter and he asked for a phone number. (transcript page 11 line 6 through line 10) Subsequently the owner of the company Mr. Styles called the claimant, Peter Stevens and told him “I am hiring you to come and paint” (transcript page 12 line 3 through line 11) Mr. Styles told Mr. Stevens that he would be paid $15.00 per hour. (transcript page 12 lines 21 through 22) Mr. Styles told Mr. Stevens that he would be doing the job as painter. (transcript page 12 lines 25 through transcript page 13 line 1) Mr. Stevens testified that he started working August 5. (transcript page 13 lines 5 through 18) Mr. Stevens was asked where the painting took place and he stated the painting was in Smithsburg. (transcript page 14 lines 18 through 19) Mr. Stevens testified that his wife would drop him off every day at a Park and Ride and then he would be picked up by Styles Painting and was transferred from the parking lot to the job site and then at the end of the day the employer would provide him transportation to the outlets in Hagerstown where his wife would pick him up and take him home. (transcript page 14 lines 23 through 25, transcript page 15 lines 1 through 17) Mr. Stevens work at the job site included painting a three car garage, as well as a barn for people named Julie and Brett Strausser. (transcript page 15 lines 13 through 17) Mr. Stevens worked for the employer for approximately a month prior to 9-15-13. (transcript page 16 lines 8 through 12) Mr. Stevens stated he had not worked on any other job site during the time he worked for Styles. (transcript page 16 lines 13 – 15) Mr. Stevens stated he did not provide the equipment for the job site he actually used. Mr. Stevens stated the ladders to climb on the barn, the paint, as well as the tools and the house were provided by Styles Painting. (transcript page 16 lines 20 through 25, transcript page 17 lines 1 through 2)
Mr. Stevens was asked on page 31 whether Mr. Styles had told him that he could not guarantee him permanent work and Mr. Stevens testified that he did not recall Mr. Styles telling him that. (transcript page 31 lines 16 – 18) Further Mr. Stevens did not recall whether the work was to be on a day to day basis. (transcript page 31 lines 19 through 21) Mr. Stevens testified that he was paid $15.00 an hour and he worked forty hours a week. (transcript page 31 lines 23 through 24) Mr. Stevens was asked where he had been working prior to August of 2013. Mr. Stevens testified that he had been working for himself doing painting and that he had done painting for the last eight years on his own. Mr. Stevens testified that he had his own business on and off and that he would typically work for himself during the summer and then work with another company like Styles Painting during the rest of the year. (transcript page 40 lines 11 – 25) Mr. Stevens testified (transcript page 41 lines 15 through 20) that when he did work on his own he had no employees and he would obtain work by word of mouth. Mr. Stevens admitted that on the day that he met Mr. Styles in Lowes that he was buying paint for a job that he already had. (transcript page 42 lines 12 through 14).
The next person called to testify in the case was Julie Strausser who was the homeowner of the house located at 4118 Garfield Road that was being painted by the claimant for Styles Painting and Remodeling, Inc. (transcript page 45 lines 21 through 25, transcript page 26 lines 1 – 14) The parties stipulated that Styles Painting and Remodeling, Inc was working on Ms. Strausser’s house. (transcript page 46 lines 11-18. Ms. Strausser testified that the job had lasted two to three months prior to the date that the claimant fell (transcript page 47 lines 13 through 16) Ms. Strausser further testified that the job was going to continue well past the date
that Mr. Stevens fell off the roof. (transcript page 47 lines 16 through 19) Ms. Strausser stated she did recall that Mr. Stevens was on the job every day for at least thirty days prior to the accident. (transcript page 53 lines 13 through 16)
Finally the last witness that was called to testify in this case is David Styles who was the owner of Styles Painting and Remodeling, Inc. (transcript page 66 lines 14 – 17) and (transcript page 67 lines 10 through 14) Mr. Styles testified he originally met Mr. Stevens at a paint counter at Lowes. Mr. Stevens approached Mr. Styles looking for, like he said, work, extra work. So we decided to exchange numbers. (transcript page 67 lines 10 through 17) Mr. Styles described specific limitations that he put on Mr. Stevens including that he was not to be on ladders or roofs or any height due to his diabetes. (transcript page 68 lines 15 through 17) Mr. Styles stated that Mr. Stevens was on a trial basis and he didn’t know what he would be capable of doing and it was a periodic thing doing little jobs here and there that I could help him with during the winter months. (transcript page 68 lines 21 through 23) On transcript page 70 Mr. Styles testified that he did not hire Mr. Stevens on a permanent basis. (transcript page 70 lines 3 through 7)
ARGUMENT
Based upon the fact that Styles Painting and Remodeling, Inc. was regularly in the painting and contracting business, that Peter Stevens was hired to do painting for a job that Styles Painting and Remodeling, Inc. had contracted with Julie and Brett Strausser to perform, and finally since the work Peter Stevens performed for Mr. Styles had lasted for thirty days and if Peter Stevens had not been hurt would have continued considerably longer and based upon the case of Winters v. Payne 13 Md App 327, 282 A2nd 807(1971) which facts are very similar to the facts in our case, Peter Stevens clearly was not a casual employee and Peter Stevens is entitled to a judgment as a matter of law.
Motions for summary judgment are governed by MARYLAND RULE 2-501, which provides that, “the court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter
of law.” [***5] MARYLAND RULE 2-501(e) (1998). See also Bagwell v. Peninsula Regional Medical Ctr., 106 Md. App. 470, 488, 665 A.2d 297 (1995), cert. denied, 341 Md. 172, 669 A.2d 1360 (1996) (holding trial court to same requirements as MD. RULE 2-501). In making its determination, the circuit court must view the facts and all inferences from those facts in the light most favorable to the non-moving party. Brown v. Wheeler, 109 Md. App. 710, 717, 675 A.2d 1032 (1996). Even when there is a dispute as to the facts, if resolution of that factual dispute is not material to [*221] the controversy, such dispute does not prevent the entry of summary judgment. Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 8, 327 A.2d 502 (1974). A material fact is one that will affect the outcome of the case. Id. Cheney v. Bell Nat’l Life Ins. Co., 315 Md. 761, 766, 556 A.2d 1135 (1989). Young v. Allstate Ins. Co., 120 Md. App. 216, 221 (Md. Ct. Spec. App. 1998)
On appeal, the standard for review by the appellate court is whether the trier of fact misconstrued the law applicable to this case. The decision of the Commission is presumed to be prima facie correct and the burden of proof is on the party challenging the decision on appeal. See Md. LABOR AND EMPLOYMENT Code Ann. § 9-745(b). In appeals involving the issue of accidental injury, the reviewing court has a very broad authority notwithstanding the prima facie correctness of the Commission’s decision and this authority extends to both findings of fact and applicable law. Montgomery Ward and Company v. Bell, 46 Md. App. 37, 41, 415 A.2d 636, 638 (1980).
In McElroy Truck Lines v Pohopek 375 Md 574, 826 A2nd 474 (2003), this Court has considered the term, “casual employee” in a number of cases, it has, as have courts generally, “refrained from giving a definition… which must govern in all cases.” Hygeia Ice & Coal Co., 152 Md. at 238, 136 A. at 551. See Wood v. Abell, 268 Md. at 221, 300 A.2d at 669. Instead, we have consistently held that the decision in any case was to be determined by “its peculiar facts and circumstances.” Id. (quoting Hygeia at 238, 136 A. at 551). What has resulted has been the development of “an elastic test for determining whether an employee is `casual’ or `regular,'” with the factors to be considered being the nature of the employer’s work, the scope and purpose of the hiring and the duration of the employment, Wood at 223, 300 A.2d at 670, “whether it is occasional, incidental, accidental, or a usual concomitant of the employer’s business.” Moore at 53, 187 A. at 894. See Clayburn at 337, 211 A.2d at 731. This Court has held, where the essential terms and manner of employment is undisputed, see Clayburn at 337, 211 A.2d at 731, that the worker has been hired to perform a single service on a
single or particular occasion that the employment was casual. Lupton at 450-51, 217 A.2d at 264. See Wood at 223, 300 A.2d at 670; East at 540, 114 A.2d at 823;
Moore 171 Md. at 53, 187 A. at 893-94; Marvil v. Elliott, 164 Md. 659, 165 A. 822 (1933).
In Wood v. Abell 300 A. 2d 665, 268 Md. 214 – Md: Court of Appeals, 1973, the worker was hired to help prepare the local fairgrounds for an upcoming event. Aside from the fact that he was to do various odd jobs as required by the county fair association and would be paid by the hour, there was “[n]o definite understanding … concerning the duration of their employment, but it was generally expected that [his] services would be needed for approximately one or two weeks. Clearly, no decision was reached that [he] would be employed in the future or that the job[ ] would be continuous.” 268 Md. at 217, 300 A.2d at 667. We noted also, quoting the testimony of the general manager of the county fair association, that the worker was hired to do odd jobs, on an indefinite basis, “like on call.” Id. at 224, 300 A.2d at 670. In Peter Stevens case, he was hired to paint and did so for 30 days until he fell off the roof. Further he expected to at least continue long enough to complete the job which was to be at least another 30 days and hoped the job would continue for the entire winter. He worked a full 40 hour schedule.
Lupton v. McDonald 217 A. 2d 262, 241 Md. 446 – Md: Court of Appeals, 1966 involved an injury to a worker who had been hired to “help 482*482 finish the job” that the employer’s previous employee had abandoned. 241 Md. at 449, 217 A.2d at 264. The
evidence was undisputed that the duration of the job was short, no more than one day, and that there was no prior relationship between the employer and the worker. Concluding that the worker was a casual employee, the Court noted that “[t]he nature of the work was temporary, the duration of the employment was only for a day, and it was occasional and incidental.” Id. at 450, 217 A.2d at 264. The Court rejected the argument that the scope and purpose of the hiring must be considered, along with duration and regularity of service, in determining whether the employment was casual, explaining:”But the scope and purpose of Lupton’s hiring by Milburn was only to complete the work which Lupton’s predecessor had left unfinished; the hiring was confined to completing a specific job on a particular piece of land which might `possibly’ take a day. Lupton also refers to the definition of casual employment given in 1 Larson, Workmen’s Compensation, § 51.00 (1965), that `Employment is casual when it is irregular, unpredictable, sporadic and brief in nature.’ Here, the employment was not only irregular but for a single occasion; Milburn had never employed Lupton before and had no plans to engage him for the future. It was unpredictable and sporadic, in that Lupton was only hired because Marx, who had originally been engaged by Milburn to do the work, had left the job. The hiring was clearly brief in nature.”Id. at 451, 217 A.2d at 265. In the Peter Stevens situation, the work for Styles Painting and Remodeling, Inc. was expected to be substantially longer than one day and was either sporadic, unpredictable or irregular.
East v. Skelly 114 A. 2d 822, 207 Md. 537 – Md: Court of Appeals, 1955 and Moore v. Clarke 171 Md. 39, 187 A. 887 (1936) both involved jockeys and, in both, the Court concluded, as a matter of law, that the jockeys were casual employees. Peter Stevens worked 40 hours every week for 30 days and would have continued if he had not fallen off the roof. In Moore v. Clarke 171 Md. 39, 187 A. 887 (1936), the jockey, who was regularly employed by a trainer to ride that trainer’s horses, was hired solely to ride a horse in a race, by the horse’s owner, with whom he had no on-going relationship. Explaining our decision, we said:”In this case the employment extended over a period of but a few minutes at most, and while it was a part of a business in which the employer was regularly engaged, it was single isolated, complete in itself, was connected with no past or future employment, and when it was finished all contractual relations between the employer and the employee ceased. It was incidental and fortuitous in the sense that, while the employer must have employed someone to ride her horse, she was under no obligation to employ Hanford, and that while his business was riding horses in races, he was, until she employed him for that service, under no obligation to ride her horse in that race, or indeed to ride in it at all. The distinction between a casual employment and a regular employment is illustrated by his relation to Burch, by whom he was employed at a fixed monthly compensation to ride Burch’s horses, when requested by Burch, in any race in which they were entered, and his relation to Mrs. Clarke, by whom he was employed for a single race.”171 Md. at 54, 187 A. at 894. In Peter Stevens case, Mr. Stevens worked full time for 30 days and would have likely worked until the job was completed.
The jockey in East v. Skelly 114 A. 2d 822, 207 Md. 537 – Md: Court of Appeals, 1955 was
a free lance jockey, who had ridden horses for the same owner some ten or twelve times during a six or seven month period, or about two percent of the races he had ridden during that time frame. 207 Md. at 539, 114 A.2d at 823. We noted “a complete analogy” between that case and Moore v. Clarke 171 Md. 39, 187 A. 887 (1936)., which we explained, as follows:”The jockey in the earlier case was a contract rider for a well known trainer of a public stable. As is usually the case, he was free to ride in any race in which his employer did not have a horse entered. In the race in which he was killed, he was doing that, and riding for a trainer for whom he had ridden a number of times during the meet and for whom, but for the accident, he would have presumably ridden in the future. The methods of employment, the methods of payment and all significant facts are the same in the two cases.”Id. at 541, 114 A.2d at 823-24. Accordingly, we reached the same result, holding that the jockey was a “casual employee.” Peter Stevens case is distinguished since he worked 40 hours each week for a month until hurt. In East v. Skelly 114 A. 2d 822, 207 Md. 537 – Md: Court of Appeals, the jockey rode several times for the same owner however each ride was only minutes.
In Marvil v. Elliott 164 Md. 659, 665, 165 A. 822, 824, a carpenter, hired to remove shingles from the eaves of a building, was injured when he fell from a ladder. Addressing the question presented, whether the injured worker was entitled to an award of workers’ compensation as an employee, the Court opined:”In the present case, the appellee was allowed by a property owner for whom he was working to be engaged temporarily by a contractor in charge of other work on the same premises. Upon the completion of the task to which the appellee was thus assigned, and which would probably have required not more than two or three hours for its performance, he was to resume his work for the first employer. The brief service he was undertaking to render for the contractor had no relation to any engagement between them in the past or future. It was limited to a particular occasion beginning and ending within a short portion of a single day. In view of its restricted scope and purpose, it must be regarded as casual within the meaning of the Maryland statute.”164 Md. at 665, 165 A. at 824. The Peter Stevens employment was for 30 days and 40 hours per week.
These cases are to be contrasted with those in which the Court concluded that the employment was “regular,” not “casual.” Clayburn v. Soueid, Inc., 239 Md. at 337, 211 A.2d at 731; State Accident Fund v. Jacobs, 134 Md. 133, 106 A. 255 (1919). In Clayburn v. Soueid, Inc. we explained why the worker in that case was not a “casual employee” and, thus, a “regular” one:”The work which Clayburn performed for Soueid was essential to Soueid’s business of building houses. Soueid sub-let the work of building the houses, but engaged laborers, of whom Clayburn was one, in the cleaning of the houses after they were built, laying drain, leveling the ground, moving material from one location to another, and general laborer’s work. This work was necessary in connection with each of the houses Soueid was building. Clayburn was taken by Soueid from one location to another and always worked under Soueid’s personal direction. The
work was not seasonal, except in the sense that, being largely performed out of doors, the weather had to be favorable. The work did not have to be performed continuously, but it was necessary at certain stages of each building operation, and Soueid built
house steadily. Clayburn testified, without contradiction, that after Soueid first engaged him from the labor pool, Soueid told him he would give him a steady job, and Clayburn said that this was what he was looking for. After a few days, Soueid raised Clayburn’s pay, and called for him, not at the place where the other men, in a labor pool, awaited day’s employment, but at another location previously agreed upon between the two men. During the entire period, Clayburn worked for no one except Soueid, except for a day or two between April 3 and 8, when Soueid had said he would be out of town. The evidence is clear that Clayburn’s employment by Soueid was steady and pursuant to a continuing and individually arranged agreement. Id. at 340, 211 A.2d at 732-33.
The Court relied on Jacobs, in which the worker, a farmer and a teamster, was hired early in the canning season “to work for [the employer] at such times as I might need him, and he promised to help me out at all such times as I might call upon him.” 134 Md. at 134, 106 A. at 255. Receiving during the season, “the same wages paid all the time,” the worker had been called on repeatedly for hauling, which he did. Id. We
concluded that the worker was not a “casual employee.” Noting that the determination of the nature of an employment relation must be made “with principal reference to the scope and purpose of the hiring rather than with sole regard to the duration and regularity of the service,” id. at 135, 106 A. at 255, we observed:”One who enters into a contract of employment for an entire season is not a casual employee merely because
he may be required to work for only a short and irregular periods. When there is a continuing engagement to serve the employer in his business at such times as the particular and essential service may be needed, the employment is not `casual’ according to any of the judicial definitions of that term. In this case the service required and rendered was occasional, but it was in pursuance of an engagement covering the whole of the working season at the employer’s plant.”Id. at 135, 106 A. at 255-56. We held that the worker was injured, and his death therefore resulted from, engaging in work that was a necessary part of the employer’s business, work that was done “under an employment which was not limited to the hauling then in progress, but applied to every recurring occasion for such assistance during the whole of one of the annual productive periods of the employer’s enterprise.” Id. at 136, 106 A. at 256. In the Peter Stevens case, he requested employment for the winter and it appeared the employer was making an effort to accommodate that request, and he in fact was working and would have continued to work if not hurt.
We may glean from the foregoing that where the facts and the circumstances of a given case reveal that the undertaking by the worker, on behalf of the employer, is not pursuant to an agreement providing for a continuous employment relationship, is of short duration and/or is temporary or sporadic, the employment, and therefore the employee, is “casual.” On the other hand, where the facts and circumstances reveal an agreement or arrangement, continuous in nature, calling for the worker to work for the employer, as and when the particular and essential requirements of the business demand, the employment, and therefore the employee, is not “casual.” And this is true whatever the duration or nature of any one or more of the component undertakings. McElroy Truck Lines v Pohopek 375 Md 574, 826 A2nd 474 (2003) In summary the elements the appellate courts look at in order to distinguish between casual and regular employment are, the nature of the employer’s work, the scope and purpose of the hiring and the duration of the employment, Wood at 223, 300 A.2d at 670, “whether it is occasional, incidental, accidental, or a usual concomitant of the employer’s business.” The purpose of requiring these three elements is clear. If the employer is not in an ongoing business, and hires someone for a couple of days to do a small amount of work that is not usually in the course of the regular business of the employer, it is not reasonable or practical to require employer to purchase workers compensation insurance. On the other hand if the employer is regularly in a certain business and hires someone for a brief period and if the employee is doing the regular work that the employer regularly performs, then it is not unreasonable to expect that the employer would provide workers compensation coverage.
Our Peter Stevens case facts are almost identical to the facts in Winters v. Payne 13 Md App 327, 282 A2nd 807(1971). In that case the Court of Special Appeals held, “While it is true that the claimant’s employment was for an indefinite duration and conceivably would have continued for no more than a few days or weeks, this, alone, does not compel a finding that the employment was casual. We think it clear that the employment of the claimant as a painter was within the scope of the employer’s business and, at the time of the injury, his service 337*337 was concomitant to and in furtherance of the employer’s regular, although part-time, business. Under the circumstances, we have no reason to disturb the finding of the lower court that the claimant was not a casual employee within the meaning of the Workmen’s Compensation Act.”
Looking at the three elements required by the McElroy Truck Lines v Pohopek 375 Md 574, 826 A2nd 474 (2003) case, the facts in our case provide support the Peter Stevens was a regular employee and not a casual employee.
Duration element-All of the cases cited above finding casual employment were for employment for a couple of days.
Peter Stevens worked on the job for thirty days before he was hurt and if he was not hurt he probably would have been there for another month before the job was complete. Mr. Stevens was looking for a job that would last through the entire winter. The claimant testified that he originally met the employer when he walked into a Lowes to buy paint, I see Mr. Styles at the counter I explained to him that I was looking for work through the winter to get me through the winter and he asked for a phone number.(transcript page 11 line 6 through line 10) Subsequently the owner of the company Mr. Styles called the claimant, Peter Stevens and told him “I am hiring you to come and paint” (transcript page 12 line 3 through line 11), Mr. Styles told Mr. Stevens that he would be doing the job as painter. (transcript page 12 lines 25 through transcript page 13 line 1) Mr. Stevens testified that he started working August 5. (transcript page 13 lines 5 through 18) Mr. Stevens was asked where the painting took place, Mr. Stevens work was at the job site included painting a three car garage, as well as a barn for people named Julie and Brett Strausser. (transcript page 15 lines 13 through 17), Mr. Stevens stated he had not worked on any other job site during the time he worked for Styles.(transcript page 16 lines 13 – 15) , Mr. Stevens stated he did not provide the equipment for the job site he actually used. Mr. Stevens stated the ladders to climb on the barn, the paint, as well as the tools and the house were provided by Styles Painting,. (transcript page 16 lines 20 through 25, transcript page 17 lines 1 through 2) , Mr. Stevens was asked on page 31 whether Mr. Styles had told him that he could not guarantee him permanent work and Mr. Stevens testified that he did not recall Mr. Styles telling him that. (transcript page 31 lines 16 – 18) Further Mr. Stevens did not recall whether the work was to be on a day to day basis. (transcript page 31 lines 19 through 21), Mr. Stevens testified that he had his own business on and off and that he would typically work for himself during the summer and then work with another company like Styles Painting during the rest of the year. (transcript page 40 lines 11 – 25) Mr. Stevens testified (transcript page 41 lines 15 through 20) that when he did work on his own he had no employees and he would obtain work by word of mouth. , Ms. Strausser testified that the job had lasted two to three months prior to the date that the claimant fell (transcript page 47 lines 13 through 16) Ms. Strausser further testified that the job was going to continue well past the date that Mr. Stevens fell off the roof. (transcript page 47 lines 16 through 19) Ms. Strausser stated that Mr. Stevens did recall that Mr. Stevens was on the job every day for at least thirty days prior to the accident. (transcript page 53 lines 13 through 16) . Based upon these facts, the duration of employment in our case was clearly sufficient to be a regular employment as opposed to a casual employment.
Nature of employers work element- Mr. Styles was the owner of a company that did painting and remodeling. At the workers Compensation hearing, The next person called to testify in the case was Julie Strausser who was the homeowner of the house located at 4118 Garfield Road that was being painted by the claimant and Styles Painting and Remodeling, Inc. (transcript page 45 lines 21 through 25, transcript page 26 lines 1 – 14) The parties stipulated that Styles Painting and Remodeling, Inc was working on Ms. Strausser’s house.(transcript page 46 lines 11-18. Finally the last witness that was called to testify in this case is David Styles who was the owner of Styles Painting and Remodeling, Inc. (transcript page 66 lines 14 – 17).Clearly it was the nature of the employers work in this particular case to do painting and remodeling and that is what Mr. Stevens was hired to do.
The scope and purpose of the hiring element- Subsequently the owner of the company Mr. Styles called the claimant, Peter Stevens and told him “I am hiring you to come and paint” (transcript page 12 line 3 through line 11), Mr. Styles told Mr. Stevens that he would be doing the job as painter. (transcript page 12 lines 25 through transcript page 13 line 1) Mr. Stevens testified that he started working August 5. (transcript page 13 lines 5 through 18) Mr. Stevens was asked where the painting took place, Mr. Stevens work was at the job site included painting a three car garage, as well as a barn for people named Julie and Brett Strausser. (transcript page 15 lines 13 through 17), Mr. Stevens stated the ladders to climb on the barn, the paint, as well as the tools and the house were provided by Styles Painting,. (transcript page 16 lines 20 through 25, transcript page 17 lines 1 through 2) ,Clearly Mr. Stevens was hired to help Mr. Styles company complete the work contracted for at the Strausser house which was part of the normal business of the employer in this case.
When an employer hires an employee whether it is initially expected to last for a few days or an indefinite period, ultimately there is no way to forecast how long the employment relationship will last. An employer can intend to hire someone permanently and fire him the next day or he can intend to hire someone to fill in for a couple of days and then realize he is better than all of his other employers. Therefore, if the employer is regularly in a certain business and hires an employee to further said business then that employer is in a position to provide workers compensation insurance quicker than the employer who has never done work in this field before and the work will only last for a couple of days. As the McElroy Truck Lines v Pohopek 375 Md 574, 826 A2nd 474 (2003) case states, the test for regular vs casual employment is elastic, it seems clear that under the facts of the Peter Stevens case, the employer intended the employment to be regular and not casual. The duration while uncertain was long enough when you combine it with the facts for the other elements, to be regular, not casual.
CONCLUSION
Based upon the uncontroverted facts that Styles Painting and Remodeling, Inc. was regularly in the painting and contracting business, that Peter Stevens was hired to do painting for a job that Styles Painting and Remodeling, Inc. had contracted with Julie and Brett Strausser to perform, and finally since the work already had lasted for thirty days and if Peter Stevens had not been hurt would have lasted considerably longer and based upon the case of Winters v. Payne 13 Md App 327, 282 A2nd 807(1971) which facts are very similar to the facts in our case, Peter Stevens clearly was not a casual employee and Peter Stevens is entitled to a judgment as a matter of law.

 



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