Friday, April 8, 2011

PA Workers Compensation- Employee or Independent Contractor?

A critical distinction in workers compensation claims is whether the injured worker is an employee or an independent contractor. The former will be covered by the employer's workers compensation insurance the latter will not.

Below are some factors the workers compensation judge will consider in making this determination:

1. Whether the alleged employer had the right to control the claimant’s activities and not the actual exercise of that right. Northern Cent. Bank & Trust Co. v. WCAB, 489 A.2d 274 (Pa.Cmwlth. 1985). Where the right to control a claimant’s activities exists, an employment relationship is found to exist even though the claimant was able to decline work whenever he chose to do so, Baum v. WCAB, 721 A.2d 402 (Pa.Cmwlth. 1998), or where little direct supervision is exerted over the claimant. Sarver Towing v. WCAB, 736 A.2d 61 (Pa.Cmwlth. 1999).

2. A carpenter’s apprentice was an employee of the training school for apprentices when the apprentice/employee was helping to renovate the school’s facility and the school had the right to control work to be done and the manner in which it was performed. Carpenters’ Joint Apprenticeship Committee v. WCAB, 654 A.2d 656 (Pa.Cmwlth. 1995).

3. A high school football official was an independent contractor of a school district, based on the need for a sports official to be neutral and not under the direction of either team in the event. These circumstances established that the school district had neither the right to, nor did it actually, control the manner in which the official conducted the event. Lynch v. WCAB, 554 A.2d 159 (Pa.Cmwlth. 1989). A similar rationale applied to a professional jockey (i.e., the jockey alone controlled the riding of the horse). Davidson v. WCAB , 399 A.2d 1193 (Pa.Cmwlth. 1979).

- This last case has interesting implications when you think of owners/operators of tractor trailers. The horse is analogous to the horse..the distinction, I suppose, is whether the alleged employer has a say on where the truck goes.

4. Johnson v. WCAB, 631 A.2d 693 (Pa.Cmwlth. 1993), a 13-year-old newspaper carrier was held to be an independent contractor.

Additionally, both Johnson and Stillman v. WCAB , 569 A.2d 983 (Pa.Cmwlth. 1990), contain excellent discussions of the various factors that are analyzed in distinguishing an independent contractor/employment relationship. Share this post :
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