Percy v. daniele/special Fund
1 CA-IC 16-0021
| Ariz. Ct. App. | Mar 7, 2017Background
- From 2012, Klarra Daniele performed as a model/performer for Richard Percy’s business (Femwrestlingrooms.com), producing custom female wrestling videos for clients.
- On February 2, 2015, Daniele was injured during a wrestling technique while filming; she later applied for workers’ compensation benefits.
- At the time of injury Percy was an uninsured employer; the Industrial Commission denied benefits and a hearing followed on whether Daniele was an employee or independent contractor.
- At hearing, testimony showed Percy owned equipment (ring, cameras, costumes), supervised and directed shoots (scripts, timing, editing), hired/fired performers, and taught techniques; Daniele worked steadily and discussed going full-time.
- The ALJ found, based on the totality of circumstances and the right-to-control factors, that Daniele was an employee; the ALJ’s award was summarily affirmed and this appeal followed.
Issues
| Issue | Plaintiff's Argument (Percy) | Defendant's Argument (Daniele / SFD) | Held |
|---|---|---|---|
| Whether Daniele was an employee or independent contractor | ALJ misweighed factors; more indicia support independent-contractor status (piecemeal work, independence, duration irrelevant) | Daniele was an employee because Percy retained and exercised control over work details and it was in his regular business | Affirmed: ALJ correctly applied totality-of-circumstances and found employee status |
| Whether ALJ should draw negative inference from Daniele’s failure to produce tax returns | Percy: nondisclosure warrants negative inference | Daniele / SFD: issue not developed at hearing; record closed and no discovery/compel sought | Held: No negative inference; issue not raised at hearing and procedural rules prevented post-hoc adverse inference |
Key Cases Cited
- Young v. Indus. Comm’n, 204 Ariz. 267, 63 P.3d 298 (App. 2003) (appellate deference to ALJ factual findings; de novo review of law)
- Lovitch v. Indus. Comm’n, 202 Ariz. 102, 41 P.3d 640 (App. 2002) (consider evidence favorably to uphold ALJ award)
- Home Ins. Co. v. Indus. Comm’n, 123 Ariz. 348, 599 P.2d 801 (1979) (right-to-control determines employee vs. independent contractor; lists indicia)
- Munoz v. Indus. Comm’n, 234 Ariz. 145, 318 P.3d 439 (App. 2014) (no single factor dispositive; totality of circumstances review)
- Henderson-Jones v. Indus. Comm’n, 233 Ariz. 188, 310 P.3d 976 (App. 2013) (workers’ compensation statutes construed liberally but not beyond facts and law)
- Perry v. Indus. Comm’n, 112 Ariz. 397, 542 P.2d 1096 (1975) (appellate court will not reweigh evidence presented to ALJ)