In re Ann Miles Builder, Inc.

Summary

The New Hampshire Supreme Court affirmed a decision of the Compensation Appeals Board holding that Michael Veltsos was an employee of Ann Miles Builder, Inc., rather than an independent contractor, for purposes of workers’ compensation. The court held that under RSA 281-A:2, VI(b)(1), the employer bears the burdens of producing evidence and persuasion on all five criteria required to rebut the presumption of employee status. Because the employer failed to prove that Veltsos controlled the means and manner of his work, the presumption remained and the board’s award of compensation was affirmed.

Holdings

1. An employer bears both the burden of producing evidence and the burden of persuasion on all five statutory criteria required to rebut the presumption that a person who performs services for pay is an employee. The employer must prove all five criteria by a preponderance of the evidence.
2. If the employer proves all five statutory criteria by a preponderance of the evidence, the employee presumption disappears and the employee retains the ultimate burden of persuasion.
3. Any error in the board's description of the burden was harmless because the board reasonably found that AMB failed to prove all five criteria, including control and discretion over the means and manner of the work; therefore, Veltsos was an employee as a matter of law.

Questions Presented

1. Whether RSA 281-A:2, VI (b)(1) places on the employer both the burden of producing evidence and the burden of persuasion to prove all five criteria necessary to rebut the statutory presumption that a person performing services for pay is an employee.
2. Whether the board's alleged misinterpretation of the burden of persuasion was harmless in light of its factual finding that AMB failed to prove that Veltsos controlled and had discretion over the means and manner of his work.

Disposition

affirmed