In this workers’ compensation case, the appellant raises two issues for reversal. First, that the appellant had an insufficient number of employees in order to subject it to the requirements of the Workers’ Compensation Act and second, that the Commission erred in finding that the appellee was entitled tо temporary total disability benefits exclusive of certain days on which she worked.
The evidence reflects that two couples, Mr. and Mrs. Campbell and Mr. аnd Mrs. Denham, were the owners of all the stock in Mountain Valley Superette, Inc. They owned twenty-five shares each out of a total of one hundred outstаnding shares. The evidence reflected that all of the stockholders worked in the daily operation of the corporation, and that appellee was employed to work two days a week in order that one couple could be off every other week. Appellee also workеd when any of the stockholders were ill. Mr. Campbell testified that none of the stockholders received any salary from the corporation and that thе only income received from the corporation was in the form of dividends, which were declared on a monthly basis. The evidence further reflects that Mountain Valley Superette, Inc. was a corporation that elected tax treatment under § 1371 et. seq. of the Internal Revenue Code. Such corporations are commonly referred to as subchapter “S” corporations and are taxed as if their income was partnership income. Arkansas Statutes Annotated § 81-1302 (a) (Repl. 1976) defines “employer” as any individual, partnership, association, or corporation carrying on any employment. Under Ark. Stat. Ann. § 81-1302 (c) (1) (Repl. 1976), “employment” is defined as:
Every employment carried on in the State in which three (3) or more employees are regularly employed by the same employer in the course of business or businesses. . .
The question of whether the employer has the minimum number of employees in order to subject that employer to the requirements of the Workers’ Compensation Act is a factual determination for the Commission. Stewart v. Cosby-Parsons Quarter Horse Ranch,
Arkansas Statutеs Annotated § 81-1302 (Repl. 1976) defines “employee” as any person employed in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but it excludes a person whose employment is casual and not in the course of the emрloyer’s trade or business.
In the case at bar, the stockholders who created the corporation in order to enjoy the advantages from its existence as a separate legаl entity are asking that its existence be disregarded where it works a disadvantage to them. They ask us to treat the corporation as if it were a partnership. The corporate structure cannot be so lightly disregarded. A corporation is a legal entity separate and apart from its stockholders. Shipp v. Bell & Ross Enterprises, Inc.,
The only real difference in this case and that of Aerial Crop Care, Inc. v. Landry,
In the case at bar, the stockholders took an active part in the principal operation of the corporation. The corporation’s income was dependent on the services provided by the stockholders. Although it is true that the stock ownership determined the share of profits payable to each of the stockholders, it is obvious that the monies which they received as dividends from the corporation bore a direct relationship to the work performed by each of the stockholders.
We hold that the Commission was correct in finding that the appellant had a sufficient number of employees so as to subject it to the requirements of theJWorkers’-Com-pensation Aсt and therefore, we find no merit to appellant’s first point.
Appellant also argues that there is no substantial evidence to support a finding that the аppellee was temporarily and totally disabled from January 23, 1978, through December 11, 1979. The record reflects that appel-lee’s condition had not changed during the period in which the Commission found her to be temporarily and totally disabled, but that she had worked for a short period of time as a cashiеr in a restaurant and that she had been compensated for sitting with an elderly individual. The Commission directed that the appellant be credited for each day of gainful employment of the appellee, at the rate of one-seventh (1/7) of the appellee’s weekly benefit rate. Appellаnt argues on appeal that the fact that appellee returned to work demonstrated that she was not temporarily and totally disabled.
Appellee was released from medical treatment by Dr. DuBose Murray on December 11, 1979. The administrative law judge found that appellee had a permаnent partial disability of twenty per cent to the right elbow and ten per cent to the left elbow. Thus, appellee’s injury was a scheduled one. Ark. Stat. Ann. § 81-1313 (c) (Rеpl. 1976). Appellee was entitled to temporary total disability benefits from the date of injury through the end of the healing period. International Paper Cо. v. McGoogan,
There was conflict in the testimony as to the type of work that the appellee did at the restaurаnt and also as to the amout of time she spent working there following her injury. After reviewing the testimony, we are of the opinion that the full Commisson was correct in finding that appellee was temporarily and totally disabled from January 23, 1978, through December 11, 1979.
Affirmed.
Notes
This statute was amended by Act 119 of 1979 and Act 290 of 1981.