Workers' Compensation

Larson’s Spotlight on Recent Cases: Truck Drivers Deemed Employees In Spite of Contractor Agreement

Larson's Spotlight on Independent Contractors, Altercation, Substantial Deviation, and Abandonment of Employment. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

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OR: Truck Drivers Found to Be Employees in Spite of Agreement Characterizing Them as Independent Contractors

Citing Larson's Workers' Compensation Law, the Court of Appeals of Oregon recently affirmed a finding that the subject truck drivers were employees of a frozen meat distributorship in spite of characterization within the contractor agreement's that the drivers were independent contractors. While the characterization carried some weight, there was direct evidence of the purported employer's right to control, and exercise of control over, the methods and details of the drivers' work. The court indicated that here the drivers provided their services; the distributor provided everything else. The drivers needed no specialized skills, offices, bank accounts, records, brochures, or equipment. They provided no cash until they had sold-and, accordingly, received payment for-the distributor's products. They were not permitted to hire assistants without the distributor's permission. In short, despite the assertion that the drivers were independent contractors with their own businesses, the drivers' "businesses" were actually part of petitioner's business.

See RJ Enters. LLC v. Department of Consumer and Bus. Servs., 2013 Ore. App. LEXIS 215 (Feb. 27, 2013) [2013 Ore. App. LEXIS 215 (Feb. 27, 2013)].

See generally Larson's Workers' Compensation Law, § 61.02 [61.02].

IA: Pizza Deliverer's Injuries in Altercation With Panhandler Found Compensable

In a case with rather bizarre facts, an Iowa appellate court recently affirmed an award of workers' compensation benefits to a pizza delivery employee who sustained a punctured lung when, as he returned from a delivery, he became embroiled in a fight with a panhandler who was being chased out of the pizza establishment by several other employees. The employer contended the injuries occurred some distance from the pizza establishment and arose from the employee's desire to get into a fight. The appellate court noted, however, that the commissioner had considered more persuasive the employee's own version of the incident. The evidence supported, therefore, the finding that the injuries arose out of and in the course of the employment and the altercation was not based on personal animosity on the part of the employee.

See Big Tomato Pizza v. Cloud, 2013 Iowa App. LEXIS 256 (Feb. 27, 2013) [2013 Iowa App. LEXIS 256 (Feb. 27, 2013)].

See generally Larson's Workers' Compensation Law, § 8.01 [8.01].

OH: Lunch Break While Waiting for Client's Prescription Was Not Substantial Deviation

A director of nursing for a home health agency was not a fixed-situs employee and accordingly was not subject to the normal going and coming rule, held an Ohio appellate court recently. Injuries sustained in an automobile accident while on an unpaid lunch break, but where the employee was in the general vicinity in order to pick up a patient's prescription could have arisen out of and in the course of the employment. It was error, therefore, for the trial court to grant the employer summary judgment regarding the employee's workers' compensation claim. The employer had continued the injuries occurred due to the "personal frolic" of the employee. The appellate court reasoned that the employment duties required the employee to drive to a pharmacy on behalf of a client; the court could not say that this was "frolic" as a matter of law.

See Jones v. Multicare Health & Educ. Servs., Inc., 2013 Ohio 701, 2013 Ohio App. LEXIS 621 (Feb. 28, 2013) [2013 Ohio 701, 2013 Ohio App. LEXIS 621 (Feb. 28, 2013)].

See generally Larson's Workers' Compensation Law, § 17.04 [17.04].

OH: Claimant Found to Have Abandoned Employment Where She Violated Written Attendance Policy

An Ohio appellate court recently held that a claimant was not entitled to TTD compensation because she had voluntarily abandoned her employment when she was terminated for violating a written attendance work rule. The court reasoned that while claimant's conduct was not altogether willful, it did rise to such a level of indifference or disregard for workplace rules and polices as to support a finding for voluntary abandonment. Evidence showed that the claimant was aware of the attendance policy, which was in writing and applied neutrally to all employees, but that she routinely violated the attendance policy. Her repeated acts of neglect and/or carelessness were sufficient to constitute voluntary abandonment.

See State ex rel. Parraz v. Industrial Comm'n, 2013 Ohio App. LEXIS 695 (Mar. 5, 2013) [2013 Ohio App. LEXIS 695 (Mar. 5, 2013)].

See generally Larson's Workers' Compensation Law, § 84.04 [84.04].

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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