Flamingo Motor Inn v. INDUS. COM'N OF ARIZ.

OPINION

CONTRERAS, Judge.

The sole issue is whether evidence supports the administrative law judge’s finding that respondent Tighe was an “employee” within the meaning of our Workmen’s Compensation statutes, of petitioner Flamingo Motor Inn (Flamingo) at the time he was injured. We find that it does, and affirm the award.

BACKGROUND

During 1979 and 1980, respondent Tighe had been hired to work on a part-time, as-needed basis at the motel and restaurant operated by petitioner Flamingo.1 He had performed maintenance work, such as cleaning, painting, moving furniture, moving equipment, and scrubbing kitchen walls. On April 17, 1980, respondent Tighe, although he had not been assigned to work that day, went to the premises of petitioner Flamingo to pick up his wife, who was then working full time at the motel.

While respondent Tighe was sitting in the bar waiting for his wife, he and several others were asked by Jim Wooley, the maintenance man at the motel, to help move a large, heavy Chinese wok stove into the restaurant kitchen. Petitioner Flamingo was at that time in the process of converting the existing restaurant into a Chinese restaurant. The owner of Flamingo had placed Mr. Wooley in charge of converting the restaurant and had authorized him to get additional help when needed. Wooley offered to compensate each helper with several drinks from the bar. While helping to move the stove, respondent Tighe injured his back.

On April 24, 1980, respondent Tighe filed an industrial accident claim, which was denied by petitioner carrier. Respondent Tighe filed a request for hearing. Following the hearing, the administrative law judge issued, and later affirmed on review, a Decision upon Hearing and Findings and Award for Compensable Claim. The decision included the following findings, which petitioners challenge in this special action— Industrial Commission:

9. In the instant case the applicant was requested to perform services of a very limited nature, i.e., assist in moving a stove and in exchange he would receive a round of drinks for his labor. In the instant case the nature of the employment as well as the duration thereof is of little consequence in arriving at a determination that the applicant had been hired and was an employee of the defendant employer herein.
10. The evidence establishes that the applicant sustained a personal injury by accident arising out of and occurring in the course and the scope of his employment with the defendant employer herein on April 17, 1980.
11. The applicant is entitled to medical, surgical, hospital and/or compensation benefits as provided for by law from April 17, 1980 until such time as his condition is determined to be medically stationary.

EMPLOYEE

We start with the principles that (1) the Workmen’s Compensation Act as a whole is remedial in character and is to be construed liberally, S.H. Kress & Co. v. Industrial Commission, 38 Ariz. 330, 299 P. 1034 (1931), and (2) that the definition of “employee” is to be given liberal interpretation in order to properly effectuate the purposes of the Workmen’s Compensation Act. DeVall v. Industrial Commission, 118 Ariz. 591, 578 P.2d 1020 (App. 1978). A.R.S. § 23-901(4)(b)2 defines an “employee”:

*202§ 23-901. Definitions
4. “Employee”, “workmen” and “operative” means:
(b) Every person in the service of any employer subject to the provisions of this chapter, including aliens and minors legally or illegally permitted to work for hire, but not including a person whose employment is casual and not in the usual course of trade, business or occupation of the employer.3

Because of the conjunctive wording of the exclusion, both requirements must be met before a person will be excluded from the term “employee”. Kress, supra; Modern Trailer Sales of Ariz. v. Industrial Commission, 17 Ariz.App. 482, 498 P.2d 556 (1972). Thus, even if his employment was “casual”, respondent would be an “employee” covered by workmen’s compensation if his employment was “in the usual course of trade, business or occupation of the employer.”

USUAL COURSE OF BUSINESS

The issue presented is essentially whether a person, while engaged in installing equipment, as part of the remodeling of business premises, is engaged “in the usual course of trade, business or occupation of the employer” so as to be an “employee” covered by workmen’s compensation. That precise issue has not been addressed previously, but other similar activities have been held to be within the usual course of an employer’s business.

Construction of a building in which to carry on the business is in the usual course of business. Greenway Baptist Church v. Industrial Commission, 130 Ariz. 482, 636 P.2d 1264 (App. 1981), and cases cited therein.4 Repair of a building in which business is carried on is in the usual course of business. Kress, supra. Repair of equipment used in the business is in the usual course of business. Carnes v. Industrial Commission, 73 Ariz. 264, 240 P.2d 536 (1952). Transporting materials to the place of business is in the usual course of business. Employers Mut. Liability Ins. Co. of Wis. v. Industrial Commission, 18 Ariz.App. 403, 502 P.2d 1080 (1972). Servicing inventory at the place of business is in the usual course of business. Modern Trailer Sales, supra.5

In other jurisdictions, the great majority of decisions have held that remodeling and incidental construction are within the usual course of business. 1C A. Larson, Workmen’s Compensation Law, § 51.23 (1980).6

CONCLUSION

In accord with the principle of liberal construction and the authorities cited above, we hold that the moving and installation of kitchen equipment which will be used in the employer’s restaurant business is employment “in the usual course of trade, business or occupation of the employer” and that the administrative law judge properly *203found that respondent Tighe was an “employee” of petitioner covered by workmen’s compensation.

The award is affirmed.

EUBANK, J., concurs.

. Mr. Tsang-Chi-Chen was the owner of the motel and the restaurant. Although the restaurant portion of the operation had been previously leased to and operated by a third party, it is clear from the record that on April 17, 1980, Mr. Chen was operating the restaurant.

. The pertinent statutory reference at the time of the alleged injury and the administrative law *202judge’s decision was A.R.S. § 23-90 l(4)(b). Subsequently the statute was amended, and the identical provision is now set forth in A.R.S. § 23-901(5)(b).

. Petitioners do not contend that respondent Tighe was an independent contractor, i.e., that petitioner Flamingo did not have the right to control the method by which he did his work. Cf. Kress, supra, Greenway, infra.

. The issue in Greenway was not the precise issue posed here, but instead whether the activity was “in the usual trade, business, profession or occupation of an employer” so as to make the employer subject to the workmen’s compensation act. A.R.S. § 23-902(A). We do not believe that distinction is significant.

. The issue in Modem Trailer Sales was not the precise issue posed here, but instead whether the employer had enough “employees” so as to make it subject to the workmen’s compensation act. A.R.S. § 23-902(A). We do not believe that distinction is significant.

It is our opinion that where there is a scheme or plan or periodic need for extra short-term employees in the usual course of the business of the employer, then such extra short-term employees are to be counted in determining the presence of three or more employees regularly employed thus necessitating the securing of workmen’s compensation insurance.

17 Ariz.App. at 486, 498 P.2d at 560.

. Representative of such activities are the construction of additional booths in a restaurant, J.P.O. Sandwich Shop, Inc. v. Papadopoulos, 105 Ind.App. 165, 13 N.E.2d 869 (1938), and the remodeling of a dilapidated building for use as a beer parlor, Colosimo v. Giacomo, 199 Minn. 600, 273 N.W. 632 (1937).