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State ex rel. WFAL Constr. v. Buehrer

Court: Ohio Court of Appeals
Date filed: 2013-12-24
Citations: 2013 Ohio 5700
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[Cite as State ex rel. WFAL Constr. v. Buehrer, 2013-Ohio-5700.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio ex rel. WFAL Construction,              :

                Relator,                              :
                                                                      No. 12AP-996
v.                                                    :
                                                                   (REGULAR CALENDAR)
Steve Buehrer[,] Administrator                        :
Bureau of Workers' Compensation,
                                                      :
                Respondent.
                                                      :




                                           D E C I S I O N

                                  Rendered on December 24, 2013


                William W. Johnston, for relator.

                Michael DeWine, Attorney General, and John R. Smart, for
                respondent.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, P.J.
        {¶ 1} Relator, WFAL Construction, commenced this original action in mandamus
seeking an order compelling respondent, Administrator of the Ohio Bureau of Workers'
Compensation, to vacate the September 18, 2012 order that denied relator's protest of
audit findings for the period January 1 through December 31, 2009, and to enter an order
granting relator's protest.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that there
No. 12AP-996                                                                                          2

was some evidence supporting the administrator's decision that at least 10 of the 20
statutory    factors   had     been    satisfied,   which     indicated     the   existence     of   an
employee/employer relationship between relator and those performing construction work
on relator's behalf. Therefore, the magistrate determined that the administrator did not
abuse his discretion and the magistrate has recommended that we deny relator's request
for a writ of mandamus.
        {¶ 3} Relator has filed objections to the magistrate's decision.1               We interpret
relator's brief as asserting three objections. In its first objection, relator contends that the
magistrate erred in finding some evidence to support the administrator's determination
that persons performing construction work were required to comply with instructions
from relator, which is identified as statutory factor No. 1. Relator argues that because
Paul Hendershot (an employee of Ohio Fresh Eggs and not relator) was the sole on-site
supervisor for the project, only he controlled the manner and method of performing
services.   However, relator ignores testimony from Gary Buyer (relator's owner and
principal) that he too provided instructions that workers were required to follow.
Therefore, we agree with the magistrate that there was some evidence supporting the
administrator's determination that the first statutory factor was satisfied. Accordingly, we
overrule relator's first objection.
       {¶ 4} In its second objection, relator contends that there was no evidence to
support the administrator's finding that factor Nos. 2, 6, and 8 were satisfied. Relator
contends that only arguments from the administrator's counsel were noted by the
magistrate as supporting the administrator's findings. We disagree.
       {¶ 5} Factor No. 2 considers whether the persons performing the construction
work are integrated into the regular functioning of relator's business. It is undisputed
that the workers at issue performed the vast majority of the construction work for relator's
business during the audit year in question. Relator points to nothing in the record that
contradicts this basic fact. Therefore, there is some evidence that these workers are


1
  We note that relator has also filed a reply brief in response to the administrator's memorandum contra
relator's objections. Relator adds objections and arguments in its reply that are not contained in its
original objections. This court's rules do not permit such a filing. Therefore, we will not consider the
objections and arguments contained therein. Respondent's December 2, 2013 motion to strike is granted
to that extent.
No. 12AP-996                                                                               3

integrated into the regular functioning of relator's business, thereby satisfying factor No.
2.
          {¶ 6} Factor No. 6 considers whether the persons performing the construction
work were paid for their services on a regular basis, such as hourly, weekly, or monthly.
Relator contends there is no evidence to support this statutory factor. We disagree.
          {¶ 7} Gary Buyer testified that he paid at least some of these workers weekly.
Citing this same testimony, the stipulation submitted to the magistrate also indicates that
at least some of these workers were paid weekly based on hours worked. Therefore, there
is some evidence supporting the administrator's determination that statutory factor No. 6
has been met.
          {¶ 8} Factor No. 8 considers whether the workers realize a profit or suffer a loss
as a result of the services provided. Relator claims there was no evidence to establish this
factor.    Again, we disagree.    There was evidence that at least some of the workers
performing services for relator were paid for their labor on a regular basis based on the
hours they worked. Workers that are paid hourly for their labor are not at risk of a
financial loss. Therefore, the administrator did not abuse its discretion in finding that
factor No. 8 was satisfied.
          {¶ 9} Because there is some evidence to support the administrator's decision, the
magistrate correctly found that the administrator did not abuse his discretion in finding
that factor Nos. 2, 6, and 8 were satisfied. Therefore, we overrule relator's second
objection.
          {¶ 10} In its third and final objection, relator contends that the magistrate erred
when he found some evidence to support the administrator's determination that factor
No. 10 was satisfied. Factor No. 10 considers whether the workers at issue have the right
to end the relationship with relator without incurring any contractual liability. Relator
argues that because there is no written contract between relator and these workers, this
factor cannot be satisfied.
          {¶ 11} Relator's argument is flawed because relator misconstrues the meaning of
factor No. 10. This factor does not require a written contract. An agreement to provide
labor in exchange for money is a contract even though not in writing. Factor No. 10
indicates that if a worker would be liable for terminating the working relationship based
No. 12AP-996                                                                                4

upon a contract, it might support a determination that the worker was an independent
contractor and not an employee. If, on the other hand, a worker would not incur any
contractual liability for ending the relationship, it might suggest an employer/employee
relationship.
       {¶ 12} Here, there is no evidence that the workers at issue would be personally
liable for breach of contract if they ended the working relationship with relator.
Therefore, the administrator did not abuse its discretion in finding that workers would
not incur contractual liability for ending the relationship, thereby satisfying factor No. 10.
Accordingly, we overrule relator's third objection.
       {¶ 13} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus
                                                   Respondent's motion to strike granted;
                                          objections overruled; writ of mandamus denied.

                           CONNOR and O'GRADY, JJ., concur.
No. 12AP-996                                                                            5

                                      APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel. WFAL Construction,     :

             Relator,                        :
                                                                 No. 12AP-996
v.                                           :
                                                            (REGULAR CALENDAR)
Steve Buehrer[,] Administrator               :
Bureau of Workers' Compensation,
                                             :
             Respondent.
                                             :


                         MAGISTRATE'S DECISION

                            Rendered on September 13, 2013


             William W. Johnston, for relator.

             Michael DeWine, Attorney General, and John R. Smart, for
             respondent.


                                    IN MANDAMUS

      {¶ 14} In this original action, relator, WFAL Construction ("WFAL" or "relator")
requests a writ of mandamus ordering respondent, Administrator of the Ohio Bureau of
Workers' Compensation ("administrator"), to vacate the September 18, 2012 order of the
administrator's designee that affirms the July 26, 2012 order of the adjudicating
committee that denies relator's protest of audit findings for the period January 1 through
December 31, 2009, and to enter an order granting relator's protest.
Findings of Fact:
      {¶ 15} 1. WFAL is a sole proprietorship owned by Gary Buyer. In 2009, WFAL
contracted with Ohio Fresh Eggs ("OFE") to repair some storm damaged barns.
No. 12AP-996                                                                               6

         {¶ 16} 2. In early 2010, WFAL was audited by respondent for the period January 1
through December 31, 2009. Auditor Penny J. Young of the Ohio Bureau of Workers'
Compensation ("bureau") Underwriting and Premium Audit Department conducted the
audit.
         {¶ 17} 3. In her July 2010 audit report, Young determined that the persons hired
by Buyer to perform the work for OFE were Buyer's employees and not independent
contractors. Buyer had not reported to the bureau the payroll relating to those he had
hired to perform the work at OFE. Consequently, the audit report indicated that WFAL
owed back premiums for calendar year 2009.
         {¶ 18} 4. During the audit, Young completed bureau form UA-2 captioned
"Independent Contractor/Employee Questionnaire." The form presents 20 questions
requiring a "yes" or "no" answer. The questions on the form track the criteria listed at
R.C. 4123.01(A)(1)(c).     The form is used to determine whether a "person" is an
independent contractor or an employee of the bureau's risk. On the form completed by
Young on March 22, 2010, 15 questions were answered "yes" and 5 questions were
answered "no."
         {¶ 19} 5. In July 2010, WFAL filed a protest of the audit findings for calendar year
2009.
         {¶ 20} 6. On July 26, 2012, WFAL's protest was heard by the bureau's three-
member adjudicating committee. On August 30, 2012, by unanimous vote, the committee
mailed an order denying the protest.
         {¶ 21} The committee's order explains:
                Background Facts and Issues Presented:                 The
                employer is protesting audit findings for the period
                January 1, 2009 to December 31, 2009. The employer
                objected to the pick up of wages for workers considered by
                the employer to be independent contractors.

                ***

               Employer's Position:
               The employer's representative stated a 1999 audit was
               completed by a Bureau auditor. That audit was a "no
               findings" audit. The audit did not pick up the independent
               contractors. The employer had signed contracts with the
               independent contractors. In 2009, the audit reversed the
No. 12AP-996                                                               7

           1999 audit and picked up all subcontractors as employees.
           The IRS has audited the employer and did not pick up the
           independent contractors. The workers also carried their own
           workers compensation coverage. The company is a framing
           contractor. The independent contractors are carpenters who
           work for other contractors as well. The employer provides no
           tools and equipment to the independent contractors. The
           materials are not provided by the employer. There are lead
           carpenters who make sure the work is properly done. Mr.
           Buyer does not own the worksites. The only supervision done
           was to inspect the finished product.

           Bureau's Position:
           The Bureau's representative stated the employer was
           working at an egg farm that was damaged in a storm. This
           employer did some roofing and sheet metal work in 2009.
           The workers had to sign a timesheet. The workers were paid
           weekly. The workers do not invoice the employer. The
           independent contractors picked up did not have their own
           workers compensation coverage. Mr. Buyer had a ledger
           which the Bureau used to determine wages. Mr. Buyer does
           go out to the work site to check work progress. He doesn't do
           the work personally. On the questionnaire, the employer met
           15 of the 20 criteria. The workers had to follow instructions
           from WFAL. Some workers were skilled labor. Workers were
           paid and supervised by WFAL. Workers could not
           subcontract the work to other subcontractors. General
           contractor provided materials. Employer can hire and
           discharge the workers.

           Findings of Fact and Conclusion of Law:
           The Committee considered all of the testimony at hearing, as
           well as the various documents provided by all parties and
           found that for purposes of the period that was audited, the
           following factors demonstrate an employee/employer
           relationship. 1) The individuals were required to comply with
           instruction from either the owner or an onsite lead
           carpenter; 2) the services provided by these workers are
           integrated into the regular functioning of this employer as
           they do all of the work; 3) the named persons on the various
           timesheets and logs performed the work personally; 4) the
           individuals were paid by the employer; 5) records that were
           available to the auditor showed that the same workers
           performed work repeatedly for the employer; 6) the
           individuals were paid for the specific number of hours
           worked on a weekly basis; 7) as the employer had a
           supervisor or foreman on the worksite if he was not present
No. 12AP-996                                                                        8

             himself, the Committee finds that the order of work was
             determined by the employer; 8) given the hourly payments,
             the workers would not realize a profit or loss as a result of
             the services provided; 9) the employer has the right to
             discharge any of these individuals; and 10) there is no
             indication that any of the individuals would incur liability if
             the relationship ended.

             The Committee recognizes that there are certain factors that
             might support independent contractor status in this case
             including: 1) These workers may not have any particular
             training; 2) are not required to work particular hours; 3) are
             not required to devote full time to the business of the
             employer; 4) furnish some of their own tools; 5) do not incur
             expenses that are reimbursed by the employer; and 6) may
             do similar work for others.

             The Committee is not prepared to find that where the work is
             performed and that the property owner provides materials
             would be at all determinative in this case. Specifically,
             whether employee or independent contractor, it is obvious
             that construction work will be performed at the property site.

             Finally, the Committee notes that in 2009 a small medical
             only claim was filed against this risk. The bureau's Audit
             Policy provides that if an employer does not appeal a claim
             allowance for a 1099 recipient and the claim is allowed, the
             auditor must pick up the wages. In 2010, a more significant
             lost-time claim that was contested by the employer was
             ultimately allowed by both a DHO and an SHO, who found
             the individual was an "employee" for workers' compensation
             purposes.

             Based upon all the foregoing, the employer's protest is
             DENIED and the audit findings upheld. The workers met at
             least ten of the criteria specified under RC 4123.01(A)(1)(c)
             as specifically enumerated above. The Committee also notes
             that any changes made by the employer post audit would not
             impact the period at issue.

(Emphasis sic.)

      {¶ 22} 7. WFAL administratively appealed the order of the adjudicating committee
to the administrator's designee pursuant to R.C. 4123.291.
No. 12AP-996                                                                         9

       {¶ 23} 8. Following a September 18, 2012 hearing that was recorded and
transcribed for the record, the administrator's designee mailed an order on October 11,
2012 that affirms the order of the adjudicating committee. The September 18, 2012 order
of the administrator's designee explains:
              At issue before the Administrator's Designee was the
              employer's protest of audit findings for the period January 1,
              2009, to December 31, 2009. Specifically, the employer
              objected to the inclusion of payroll for workers the employer
              considered independent contractors.

              ***

              The Administrator's Designee adopts the statement of facts
              contained in the order of the Adjudicating Committee.

              Based on the testimony and other evidence presented at the
              hearing, the Administrator's Designee affirms the decision,
              findings, and rationale set forth in the order of the
              Adjudicating Committee.

       {¶ 24} 9. On November 28, 2012, relator, WFAL Construction, filed this
mandamus action.
Conclusions of Law:
       {¶ 25} R.C. 4123.01 defines "employee" for purposes of the workers' compensation
system.
       {¶ 26} R.C. 4123.01(A)(1)(c) sets forth 20 criteria to be used in determining
whether a person who performs labor or provides services pursuant to a construction
contract is an employee or an independent contractor.
       {¶ 27} R.C. 4123.01(A)(1)(c) states:
              Every person who performs labor or provides services
              pursuant to a construction contract, as defined in section
              4123.79 of the Revised Code, if at least ten of the following
              criteria apply:

              (i) The person is required to comply with instructions from
              the other contracting party regarding the manner or method
              of performing services;

              (ii) The person is required by the other contracting party to
              have particular training;
No. 12AP-996                                                                  10

           (iii) The person's services are integrated into the regular
           functioning of the other contracting party;

           (iv) The person is required to perform the work personally;

           (v) The person is hired, supervised, or paid by the other
           contracting party;

           (vi) A continuing relationship exists between the person and
           the other contracting party that contemplates continuing or
           recurring work even if the work is not full time;

           (vii) The person's hours of work are established by the other
           contracting party;

           (viii) The person is required to devote full time to the
           business of the other contracting party;

           (ix) The person is required to perform the work on the
           premises of the other contracting party;

           (x) The person is required to follow the order of work set by
           the other contracting party;

           (xi) The person is required to make oral or written reports of
           progress to the other contracting party;

           (xii) The person is paid for services on a regular basis such as
           hourly, weekly, or monthly;

           (xiii) The person's expenses are paid for by the other
           contracting party;

           (xiv) The person's tools and materials are furnished by the
           other contracting party;

           (xv) The person is provided with the facilities used to
           perform services;

           (xvi) The person does not realize a profit or suffer a loss as a
           result of the services provided;

           (xvii) The person is not performing services for a number of
           employers at the same time;

           (xviii) The person does not make the same services available
           to the general public;
No. 12AP-996                                                                           11

              (xix) The other contracting party has a right to discharge the
              person;

              (xx) The person has the right to end the relationship with the
              other contracting party without incurring liability pursuant
              to an employment contract or agreement.

       {¶ 28} By enactment of the statute, the legislature intended to substitute a
statutory test for the traditional common-law standard. Slauter v. Klink, 2d Dist. No.
18150, (Aug. 18, 2000).
       {¶ 29} Here, the adjudicating committee analyzed the 20 criteria set forth in the
statute and determined that at least 10 of the criteria were met showing the existence of
an employee/employer relationship. The committee also determined that 6 of the criteria
might support independent contractor status.
       {¶ 30} Here, relator challenges the committees findings on the 10 criteria used to
support an employee/employer relationship. If relator can successfully challenge even
one of the criteria, the bureau's final determination is flawed. Slauter.

        Statutory Criteria i—Corresponding to Committee Factor No. 1
       {¶ 31} R.C. 4123.01(A)(1)(c)(i) provides:
              The person is required to comply with instructions from the
              other contracting party regarding the manner or method of
              performing services.

       {¶ 32} As to Factor No. 1, the committee held:
              The individuals were required to comply with instruction
              from either the owner or an onsite lead carpenter.

       {¶ 33} According to relator, the committees finding is not supported by the
evidence. WFAL points to Buyer's hearing testimony:
              Q. Did you tell the people at the egg farm how to do what you
              wanted them to do or the method that they would have to
              use to do it?

              A. No. They would tell me. The supervisor, Paul Hendershot.

              Q. Who is Paul Hendershot?

              A. He was Ohio Fresh Eggs construction supervisor.
No. 12AP-996                                                                           12


              Q. He did not work for you?

              A. No, he did not.

              Q. He was their construction supervisor on this job site?

              A. Yes.

(Tr. 7-8.)

       {¶ 34} WFAL also points to Young's hearing testimony:

              Q. Penny, do you have any evidence that Paul Hendershot
              did not instruct these people as to what they were supposed
              to do?

              A. I was not on the job site, no.
              Q. Okay. And in your opening statement you said that the
              egg farm, Ohio Fresh Eggs, let's make sure I do it right,
              supplied the materials and the on-site supervisor, was that
              Paul Hendershot?

              A. I'm just basing that off of what Gary said was that Paul
              Hendershot was the supervisor for the egg farm.

(Tr. 29.)

       {¶ 35} According to relator, it is undisputed that Buyer provided no instruction
regarding the manner or method of performing services and that only OFE provided
instructions through its construction supervisor Paul Hendershot who was an employee of
OFE. (Relator's brief, at 11.)
       {¶ 36} Here, the bureau points out that, during the hearing, Young testified:
              So WFAL was contracted to provide the labor and then Ohio
              Fresh Eggs bought all of the materials and they had an on-
              site supervisor. WFAL was given a work order, which the
              people were supposed to follow in order to get that barn
              ready for the next project.

(Tr. 22.)

       {¶ 37} In her audit report, Young states "1) individual is to follow instruction on
work order provided to Gary Buyer."
No. 12AP-996                                                                       13

      {¶ 38} Moreover, at the hearing, Buyer testified:
               Q. You heard the allegation that you gave the instructions of
               these people as to what they're to do. What was the truth,
               what was the fact, who told them what to do and when to do
               it?

               A. Well, it would be the egg farm would tell me -- he would
               tell all of us, like, Paul would come some days and be
               wanting of something. I would be on another site. Paul
               would come and say, well, we have a crisis in this barn, the
               roof caved in. He would pull my guys off and go fix that.

               Q. So he would talk to your guys?

               A. Yes.

               Q. And tell them what to do?

               A. Yes, as if they worked for him.

               Q. And other times he would call you and say --

               A. Yes, and I would have to direct.

               Q. He would like your people to do something?

               A. Yes.

               Q. All right. So he was not disinvolved here, he was actively
               involved with this?

               A. As much as I was, yes.

               Q. He was the on-site supervisor for Ohio Fresh Eggs?

               A. Yes.

(Tr. 32-33.)

      {¶ 39} Respondent administrator is the exclusive evaluator of the weight and
credibility of the evidence. In mandamus, this court does not reweigh the evidence for
respondent.
      {¶ 40} Clearly, the evidence and testimony cited by both relator and respondent
can be easily reviewed as supportive of a finding that both Buyer and Hendershot
No. 12AP-996                                                                          14

instructed the workers regarding the manner or method of performing services.
Accordingly, the committee's finding that statutory criteria i was met is supported by
some evidence and relator's challenge here must fail.

       Statutory Criteria iii—Corresponding to Committee Factor No. 2
       {¶ 41} R.C. 4123.01(A)(1)(c)(iii) provides:
              The person's services are integrated into the regular
              functioning of the other contracting party.

       {¶ 42} As to Factor No. 2, the committee held:
              [T]he services provided by these workers are integrated into
              the regular functioning of this employer as they do all of the
              work.

       {¶ 43} According to relator, the committee finding is not supported by the
evidence. WFAL points to Buyer's hearing testimony:
              Q. No. iii, "The person's services are integrated into the
              regular functioning of the other contracting party." Do you
              integrate people who work with you into your regular
              functions?

              A. No, I do not. It is an as-needed basis.

              Q. Okay. Like, for example, if you hire somebody who does
              insulation and the insulation work is done, then do you move
              them over to a painter or a carpenter?

              A. No, they're job specific.

(Tr. 8-9.)

       {¶ 44} Here, the bureau points to the finding of the adjudicating committee that
the workers hired by Buyer "do all of the work." (Respondent's brief, at 8.) That is, the
workers performed all the tasks required under WFAL's contract with OFE. According to
the bureau:
              At hearing, no evidence was offered to the contrary. When
              asked, Buyer misunderstood this question and instead
              answered that his workers were job specific—he would not
              hire someone to install insulation then have them paint.
No. 12AP-996                                                                            15

(Respondent's brief, at 8.)

       {¶ 45} The magistrate agrees with the bureau's position. Buyer's testimony that
each worker had a specific job is not responsive to the issue. Accordingly, the committee's
finding that statutory criteria iii was met is supported by some evidence, and relator's
challenge here must fail.

           Statutory Criteria iv—Corresponding to Committee Factor No. 3
       {¶ 46} R.C. 4123.01(A)(1)(c)(iv) provides:
                The person is required to perform the work personally.

       {¶ 47} As to Factor No. 3, the committee held:
                [T]he named persons on the various timesheets and logs
                performed the work personally.

       {¶ 48} According to relator, the committee finding is not supported by the
evidence. WFAL points to Buyer's hearing testimony:
                Q. Okay. Then No. iv, "The person is required to perform the
                work personally." When you ask somebody to paint, do you
                say I want only this person to paint or do you ask them to
                bring somebody who can paint? How does that work?

                A. They can bring as many people as they need. Osman is
                actually my painter and insulator that I use.

                Q. When you use Osman, do you say only Osman can do this
                job?

                A. No, I don't.

                Q. Can he bring or substitute somebody else instead of
                himself?

                A. Yes.

                Q. Can he bring some other people to do it?

                A. And he has done.

(Tr. 9.)
No. 12AP-996                                                                           16

       {¶ 49} As the bureau points out here, the audit found that "4) [i]ndividuals cannot
sublet their job to others—they are paid hourly to do labor themselves."
       {¶ 50} Also, the record contains a document captioned "WFAL's Supplemental
Answers to '20 Questions.' " In that document, WFAL states:
              A contract laborer may, with approval from WFAL substitute
              itself when necessary, but the new contract laborer should
              have the requisite capabilities.

       {¶ 51} In the magistrate's view, given that a substitution required WFAL's
approval, the adjudicating committee could hold that the work was to be done personally
by the workers hired by Buyer. Thus, the committee's finding that criteria iv was met is
supported by some evidence and relator's challenge here must fail.

        Statutory Criteria v—Corresponding to Committee Factor No. 4
       {¶ 52} R.C. 4123.01(A)(1)(c)(v) provides:
              The person is hired, supervised, or paid by the other
              contracting party.

       {¶ 53} As to Factor No. 4, the committee held:
              [T]he individuals were paid by the employer.

       {¶ 54} Relator concedes that evidence supports the committee's finding as to
Factor No. 4. (Relator's brief, at 13.) Accordingly, the magistrate finds that statutory
criteria v is supported by the record.

       Statutory Criteria vi—Corresponding to Committee Factor No. 5
       {¶ 55} R.C. 4123.01(A)(1)(c)(vi) provides:
              A continuing relationship exists between the person and the
              other contracting party that contemplates continuing or
              recurring work even if the work is not full time.

       {¶ 56} As to Factor No. 5, the committee held:
              [R]ecords that were available to the auditor showed that the
              same workers performed work repeatedly for the employer.

       {¶ 57} According to relator, the committee finding is not supported by the
evidence. WFAL points to Buyer's hearing testimony:
No. 12AP-996                                                                           17

               Q. Do you say like to Osman that he'll work for you no matter
               what or even if there is not -- it says, "or contemplates
               continuing or recurring work even if the work is not full
               time." How does that work?

               A. I don't understand that one.

               Q. Okay. Is he free to work for somebody else?

               A. Yes. Definitely. And he does.

               Q. So when he's not doing work for you, he's working for
               other people?

               A. Yes.

               Q. Okay. How about other people that were on that egg farm
               job, when they didn't have work for you, did you say stay
               with me, I'll find something or do they go on their own and
               find something on their own?

               A. No, they were all free to go. When I run out of work or
               something happened and we couldn’t' work, they would go
               elsewhere.

(Tr. 10-11.)

       {¶ 58} Here, the bureau points to Buyer's testimony:
               A. A lot of them did work for me because I paid every week
               and I had a lot of work at the time.

(Tr. 18.)

       {¶ 59} Also, Buyer testified that the workers he hired did not have workers'
compensation coverage during the period of the audit.
       {¶ 60} According to relator, the bureau presented no evidence to contradict Buyer's
testimony. However, that Buyer paid his workers every week indicates that his workers
worked for him repeatedly. Thus, the committee's finding that statutory criteria vi was
met is supported by some evidence, and relator's argument must fail.

       Statutory Criteria xii—Corresponding to Committee Factor No. 6
       {¶ 61} R.C. 4123.01(A)(1)(c)(xii) provides:
No. 12AP-996                                                                    18

               The person is paid for services on a regular basis such as
               hourly, weekly, or monthly.

       {¶ 62} As to Factor No. 6, the committee held:
               [T]he individuals were paid for the specific number of hours
               worked on a weekly basis.

       {¶ 63} According to relator, the committee finding is not supported by the
evidence. WFAL points to Buyer's testimony:
               Q. How did you pay these people?

               A. Mostly -- well, I paid every week, but some were hourly,
               some were by man hour and some were contracted.

               Q. When it's contracted, is that a flat fee?

               A. Yes.

               Q. When you do a flat fee, does somebody give you a bid and
               say, I'll do this work for x amount of dollars?

               A. Yes.

               Q. Is that how it works?

               A. Yes.

               Q. If it actually takes them more time than the bid, what
               happens with that?

               A. Then they would lose money.

               Q. Okay.

               A. From their original bid.

               Q. If they underbid, that responsibility for the difference is
               theirs?

               A. Yes. I couldn't pay them any extra. There's only X amount
               of dollars to work with.

(Tr. 15-16.)
No. 12AP-996                                                                                19

       {¶ 64} According to relator, the bureau "did not consider the flat fee contracts or
flat weekly payments. The BWC ignored this evidence and ruled that everyone was paid
by the hours worked." (Emphasis sic.; Relator's brief, at 15-16.)
       {¶ 65} In response, the bureau asserts here that "WFAL concedes it hires and pays
the workers weekly, based on hourly wages and based on time sheets, not invoices.
(Respondent's brief, at 10.)
       {¶ 66} Assuming, that "some" of the workers hired by WFAL "were contracted" as
Buyer testified, nevertheless, WFAL does concede that, other than the contract workers,
the hired workers were paid weekly based on hours worked, as submitted on time sheets,
not invoices. Thus, there was clearly some evidence to support the committee's finding
that "6) the individuals were paid for the specific number of hours worked on a weekly
basis." Relator's challenge here to the committee's finding as to Factor No. 6 must fail.

        Statutory Criteria x—Corresponding to Committee Factor No. 7
       {¶ 67} R.C. 4123.01(A)(1)(c)(x) provides:
                The person is required to follow the order of work set by the
                other contracting party.

                As to Factor No. 7, the committee held:
                [A]s the employer had a supervisor or foreman on the
                worksite if he was not present himself, the Committee finds
                that the order of work was determined by the employer.

       {¶ 68} Relator contends that the committee finding is not supported by the
evidence.      Relator points out that it was undisputed that Paul Hendershot was the
supervisor on the job for OFE. Relator also points to Buyer's testimony:
                Q. Who set the order of work?

                A. That would be Ohio Fresh Egg, Paul Hendershot.

                Q. Did you set the order of work?

                A. No. Paul would tell me what needed to be done and when
                it needed to be done by.

(Tr. 13-14.)
No. 12AP-996                                                                              20

       {¶ 69} The bureau disagrees with relator's contention. Here, the bureau points out
that the audit found that "1) [i]ndividual is to follow instruction on work order provided to
Gary Buyer." Also, auditor Young testified "WFAL was given a work order, which the
people were supposed to follow in order to get that barn ready for the next project." (Tr.
22.)
       {¶ 70} During the hearing before the committee, bureau legal advisor Richard
Blake argued:
                The egg farm would give [Buyer] instructions and then he
                would give instructions to the people that he hired. They
                didn't just service in a vacuum and there was no interaction
                between the two. You know, there may be varying degrees of
                control with each of these people, but at the end of the day,
                [Buyer] was the one, he said he could hire and fire. He
                required them to do certain kind of duties. So with respect to
                this first thing, they weren't taking their instructions directly
                from the egg farm. They were hired by him and they were
                brought in to follow the parameters that were set forth by
                him.

(Tr. 24-25.)

       {¶ 71} Also, Buyer testified, as previously noted, that Hendershot would "pull my
guys off and go fix that" when there was a "crisis" such as when a barn roof caved in. (Tr.
32-33.)
       {¶ 72} It is the bureau that weighs the evidence. Even if it can be argued that the
evidence was subject to interpretation, there was some evidence supporting the
committee's finding as to Factor No. 7. Thus, relator's argument must fail.

       Statutory Criteria xvi—Corresponding to Committee Factor No. 8
       {¶ 73} R.C. 4123.01(A)(1)(c)(xvi) provides:
                The person does not realize a profit or suffer a loss as a result
                of the services provided.

       {¶ 74} As to Factor No. 8, the committee held:
                [G]iven the hourly payments, the workers would not realize a
                profit or loss as a result of the services provided.
No. 12AP-996                                                                        21

       {¶ 75} Relator challenges the committee's finding by pointing to evidence of the
arrangement between WFAL and Osman Rodriguez. Relator points to the testimony of
Buyer's regarding Osman Rodriguez:
               Q. A man like Osman, if he bids on a job and it takes him
               longer, he would eat the difference; is that correct?

               A. Yes, it is.

               Q. So he would suffer a loss?

               A. Yes.

               Q. If he bids on it and gets it done quicker, does he pay you
               back any money?

               A. No, it's a set price.

(Tr. 17-18.)

       {¶ 76} Relator also points to the testimony of Osman Rodriguez who was called to
testify by WFAL. In its brief, WFAL summarizes the testimony:
               Mr. Rodriguez testified: 1) that he owns his own company; 2)
               that he supplied his own tools and equipment; 3) that he
               works for other people besides WFAL, such as Aguilar
               Painting; 4) that he bids on jobs and suffers the loss if he
               bids too low and makes a profit if he completes the work
               under cost; 5) that he often works with WFAL under a
               written agreement; 6) that he would invoice WFAL for his
               work and Ohio Fresh Egg would then decide how much of
               that invoice Ohio Fresh Egg would pay; 7) that WFAL would
               only pay Osman Rodriguez what Ohio Fresh Egg paid WFAL.

(Relator's brief, at 17.)

       {¶ 77} In response, the bureau argues:
               WFAL attempts to show an independent contractor
               relationship through the testimony of Osman Rodriguez, but
               that testimony was limited to Mr. Rodriguez's relationship
               with WFAL -- and not any other workers' relationship with
               WFAL -- and the evidence does not indicate that
               arrangement Mr. Rodriguez describes was the arrangement
               in place in 2009. * * * In fact, the payroll records of WFAL do
               not show any payments to Osman Rodriguez in 2009 * * *.
No. 12AP-996                                                                              22

(Respondent's brief, at 10.)

       {¶ 78} The magistrate agrees with the bureau. Even if WFAL proved that it had an
independent contractor relationship with Osman Rodriguez, that alone does not flaw the
committee's finding as to Factor No. 8. Thus, relator's argument must fail.

      Statutory Criteria xix—Corresponding to Committee Factor No. 9
       {¶ 79} R.C. 4123.01(A)(1)(c)(xix) provides:
              [T]he other contracting party has a right to discharge the
              person.

              As to Factor No. 9, the committee held:
              [T]he employer has the right to discharge any of these
              individuals.

       {¶ 80} According to relator:
              Relator's evidence on this criteria was that he had the right
              to discharge people if it was a quality issue or a time frame
              issue. * * * Therefore, Relator agrees with this point.

(Emphasis sic.; Relator's brief, at 18.)

       {¶ 81} Given relator's position here on committee Factor No. 9, the committee's
finding must stand.

      Statutory Criteria xx—Corresponding to Committee Factor No. 10
       {¶ 82} R.C. 4123.01(A)(1)(c)(xx) provides:
              The person has the right to end the relationship with the other
              contracting party without incurring liability pursuant to an
              employment contract or agreement.

       {¶ 83} As to Factor No. 10, the Committee held:
              There is no indication that any of the individuals would incur
              liability if the relationship ended.

       {¶ 84} Relator challenges the committee's finding by pointing to Buyer's testimony
that he had no employment contracts or agreements with the individuals that he hired.
       {¶ 85} According     to   relator,   R.C.   4123.01(A)(1)(c)(xx)   requires   "written
employment contracts or agreements" for that provision to be applicable. The magistrate
No. 12AP-996                                                                               23

disagrees with relator's interpretation of the statutory provision. The statutory provision
does not require a written contract or agreement. Thus, relator's argument must fail.
      {¶ 86} Based upon the above analysis, the magistrate concludes that the bureau
appropriately found that 10 of the statutory criteria support a finding that the workers
hired by WFAL were employees of WFAL.
      {¶ 87} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.


                                          /S/ MAGISTRATE
                                          KENNETH W. MACKE


                               NOTICE TO THE PARTIES

             Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
             as error on appeal the court's adoption of any factual finding
             or legal conclusion, whether or not specifically designated as
             a finding of fact or conclusion of law under Civ.R.
             53(D)(3)(a)(ii), unless the party timely and specifically
             objects to that factual finding or legal conclusion as required
             by Civ.R. 53(D)(3)(b).