Ramirez Bros v. Special fund/ortega/diaz

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE RAMIREZ BROS LANDSCAPING DBA RAMIREZ BROS LANDSCAPING, FERNANDO RAMIREZ, Petitioner Employer, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, MARIO ORTEGA, LUIS I DIAZ, Respondent Employees, SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent Real Party in Interest. No. 1 CA-IC 21-0011 FILED 11-16-2021 Special Action - Industrial Commission ICA Claim No. 20190-0590269 Claim No. 20200-910025 Carrier Claim No. NONE The Honorable Marceline A. Lavelle, Administrative Law Judge AWARD AFFIRMED COUNSEL Zazueta Law, PLLC, Scottsdale By Fabian Zazueta (argued), Garrett Respondek Counsel for Petitioner Employer Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent Nunez Law Firm, PLLC, Phoenix By Jason H. Forcier Counsel for Respondent Employees Industrial Commission of Arizona, Phoenix By Scott J. Cooley Counsel for Respondent Real Party in Interest MEMORANDUM DECISION Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding Judge Peter B. Swann and Judge David D. Weinzweig joined. M c M U R D I E, Judge: ¶1 Fernando Ramirez (“Ramirez”), doing business as Ramirez Bros. Landscaping (“Ramirez Bros.”), brings this special action review challenging an Industrial Commission of Arizona (“ICA”) Award that found Ramirez Bros. subject to Arizona workers’ compensation liability. Because the evidence shows that Ramirez Bros. regularly employed workers in conducting its business, we affirm the award. FACTS AND PROCEDURAL BACKGROUND ¶2 We view the facts in a light most favorable to sustaining the Award. Salt River Project v. Indus. Comm’n, 128 Ariz. 541, 544–45 (1981). Ramirez Bros. is a sole proprietorship of Fernando Ramirez that provides landscaping maintenance and other landscaping-related services to clients. Ramirez sometimes hired workers to help Ramirez Bros. 2 RAMIREZ BROS v. SPECIAL FUND/ORTEGA/DIAZ Decision of the Court ¶3 In February 2019, Mario Ortega and Luis Diaz traveled in a pickup truck to work for Ramirez when they were involved in an auto accident. They went to the emergency room afterward, but the men suffered no serious injuries. Later, they received treatment from a chiropractor. They both filed workers’ compensation claims. Ramirez denied liability under workers’ compensation law, arguing that he did not regularly hire employees and was, therefore, not an employer subject to workers’ compensation liability. ¶4 The ICA held a hearing to determine whether Ramirez was an employer as prescribed in A.R.S. § 23-902(A), which provides that [e]mployers subject to this chapter are . . . every person who employs any workers or operatives regularly employed in the same business or establishment under contract of hire . . . . For the purposes of this subsection, “regularly employed” includes all employments, whether continuous throughout the year, or for only a portion of the year, in the usual trade, business, profession or occupation of an employer. An employer is not subject to the Workers’ Compensation Act if it “hires only occasionally and unpredictably.” Donahue v. Indus. Comm’n, 178 …

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