Workers' Comp Severs a Friendship

Is a construction worker who sliced his fingers while working for an acquaintance an employee or an independent contractor?

By Christina Lumbreras

A worker knew a company owner personally before he began working for him, doing plumbing and construction work. One day, the worker was prepared to report to a coffee shop to work on a remodel when the owner called him and told him to go to a personal residence to construct a laundry room instead. The owner provided the tools and purchased the necessary materials to construct the laundry room. The owner provided the worker with company shirts to wear. He also kept track of the worker's hours and paid him accordingly.

While using a saw to cut two-by-fours, the worker cut his hand and fingers when the saw moved unexpectedly. Portions of his left index and middle fingers were severed. The owner wrapped the severed fingers in a clean shirt and took the worker to the hospital.

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On the way to the hospital, the owner asked the worker to tell hospital workers that he was unemployed and had been helping the owner cut boards. Because of their personal relationship, the worker agreed. However, a week later, the worker quit his job and filed a workers' compensation claim. The owner tried to dissuade the worker from pursing the claim.

The Industrial Commission allowed the claim, and the owner appealed. The trial court upheld the commission's decision that the worker was entitled to benefits.

Was the trial court correct in granting benefits to the worker?

A. Yes. The worker was an employee of the company owner.

B. No. The parties were operating under an oral construction contract, and the trial court failed to consider the correct test under state law.

C. No. The worker was an independent contractor.

How the court ruled: A.

The Ohio Court of Appeals ruled that the worker was entitled to benefits because he was an employee and not an independent contractor. Troxel v. Ryan, No. CA2009-12-083 (Ohio Ct. App. 09/27/10).

When deciding whether an injured worker is an employee or independent contractor, the key is to determine who had the right to control the manner or means of doing the work. The court stated that Ohio has two tests for determining whether a worker is an employee: the common law test and a statute for workers employed under a construction contract. The trial court failed to mention which test it applied to the case, but the court found that the worker was an employee under both tests.

B is incorrect. The court noted that the owner's attorney mentioned numerous times that no construction contract existed. If a construction contract existed, the worker had to fulfill 10 out of 20 statutory criteria to be considered an employee. The court found that the worker met 13. The court emphasized the fact that the owner told the worker where to report for work and set the terms for the work he would perform on any given job.

C is incorrect. The court stated that the owner controlled the manner and means because he determined where and when the worker would work. The owner provided the tools and materials for the worker. The worker's work was a part of the owner's regular business.

CHRISTINA DIFONTE is the legal editor of the WorkersComp Forum.

This feature is not intended as instructional material or to replace legal advice.

Read more at the WorkersComp Forum homepage.

November 18, 2010

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