Claimant worked for the employer for 6-8 years driving a truck and then entered an agreement to purchase the truck, pay his own expenses, receive a higher pay rate and reclassify himself as an independent contractor. The employer asserted that this agreement under claimant's "own free will" precluded benefits for permanent and total disability following an 2003 injury when a keg fell on him. The case is Timothy Rader v Werner Enterprises, DOLIR 10-29-10.
Whether a claimant is an employee under the Act depends whether an employer has the right to control the means and manner of service. An employment contract is only one of eight factors to consider, and classification in a contract as an independent contractor is not conclusive. The Commission examined the parties' actual practices and concluded that Werner continued to control claimant's activities after the agreement.
The Commission further rejected the defense under 287.020.1 that claimant was not an employee because he was an "owner operator". The employer failed to establish ownership of the truck because of inconclusive evidence of an attempted conveyance. Werner's counsel testified that a certificate of title proved ownership. Portions of the title transfer remained incomplete such as missing a date or signature of the claimant. The agreement further limited claimant's capacity to use or to convey the trailer.
Werner first asserted the "independent contractor" defense three months before the 2009 hearing, after the employer paid $334,758 in medical and lost time benefits. The administrative law judge further noted that the employer filed the amended answer 6 years after the accident and had previously conceded employee status for years in various "signings."
Claimant underwent five back surgeries from 2003-2006 including a two-level fusion. The claimant had previously received a disability compensation for a prior injury in the Army, but asserted the prior back injury did not require treatment or restrict his work. He had not returned to work after the 2003 accident. The Commission affirmed an award of $33,764 a year for life of the 49-year old claimant.
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