At issue in an appeal before the Massachusetts Department of Industrial Accidents Reviewing Board was whether the judge had applied the proper analysis of employment status in determining that a workers’ compensation claimant was an independent contractor, who was not entitled to workers’ compensation benefits following a work-related injury. The judge had analyzed several factors set forth in the cases of MacTavish v. O’Connor Lumber Co., 6 Mass. Workers’ Comp. Rep. 174 (1992) and Athol Daily News v. Bd. Of Rev. of the Div. of Employ. and Training, 439 Mass. 171 (2003).
The “MacTavish” factors are considered to control the issue of whether a claimant is an independent contractor or an employee for the purposes of workers’ compensation benefits under Chapter 152. The claimant argued that the MacTavish factors and the “so-called independent contractor statute, G.L. c. 149, § 148B,” should have applied, and they would have resulted in a finding that she was an employee, entitled to workers’ compensation benefits.
The claimant in this appeal worked for Publishers Circulation Fulfillment, Inc. (PCF), delivering newspapers. Her position was defined as an independent contractor. The claimant identified herself as a sole proprietor when she filed her income taxes.
To deliver newspapers, the claimant used her own car and paid all of her own expenses. She could hire others to make the deliveries, as long as they were completed in a timely manner.
In September 2010, the claimant suffered injuries while pushing a carriage loaded with newspapers down a ramp. Months later, she suffered a second injury, slipping on ice while delivering a newspaper. She returned to work after a short break for treatment, and then she underwent surgery for her knee and trigger finger releases on her right hand.
The claimant was fired in August 2012 and filed a claim for workers’ compensation. The insurance company argued that there was no employment relationship between the claimant and PCF. Following a conference, the insurer was ordered to pay the claimant section 34 temporary total incapacity benefits. The insurer appealed.
In the hearing decision, the judge dismissed the claimant’s claim for benefits, finding she was an independent contractor, rather than an employee. The factors the judge considered to determine employment status included the fact that the claimant signed a contract indicating she was an independent contractor, she bought and collected work insurance as an independent contractor, and she filed taxes as an independent contractor. In his ruling, the judge allowed recoupment by the insurer for benefits paid according to the order, and he denied and dismissed the insurance company’s claim for penalties.
On appeal, the claimant argued she was an employee of PCF. She contended the judge applied the wrong legal standard in his legal analysis, and specifically, the judge should have applied the “independent contractor statute,” G.L. c. 149 section 148B. She also argued for an analysis of the MacTavish factors.
These MacTavish factors include whether the employer controls the details of the work, whether the employee is engaged in a distinct occupation, whether skill is required in this occupation, and whether this kind of occupation, in this locality, is usually done under the direction of the employer, among other factors.
The court stated the issue was whether c. 149 section 148B applies to the employee/independent contractor determination in workers’ compensation cases. If so, the court stated the next question is whether it is compatible with the MacTavish/Whitman factors.
According to the Board, determining independent contractor status is always a matter of fact, but the standard is set forth as a matter of law. The Board stated that the claimant argued section 148B applies to all of Chapter 152.
The Board stated that subsection (d) of section 148B does not include Chapter 152 in total. In fact, the subsection makes clear that misclassifying a worker in violation of section 148B(d) violates Chapter 152. The Board also noted the different burdens of proof. Section 148B requires an employer to show the elements demonstrating a worker is an independent contractor. Chapter 152, in comparison, requires the worker to prove her employment status. In short, the Board stated that section 148B does not apply to Chapter 152.
The Board ruled that G.K. c. 149, section 148B (a)(1-3) does not apply to determine whether a claimant is an employee or an independent contractor. In this case, the judge found that after applying the MacTavish/Whitman factors, the claimant was free to expand her business and supplied all of the tools of the job. The claimant could also hire substitute delivery workers, and she benefited from her status as an independent contractor when filing taxes and collecting disability insurance for independent contractors.
The Board affirmed the judge’s conclusion that the claimant was an independent contractor.
At Pulgini & Norton, an experienced Boston workers’ compensation attorney can provide legal guidance and advocate on your behalf. You may be entitled to compensation following a work-related injury. Our office provides a free, confidential consultation with a skilled workers’ compensation lawyer. Contact us today to discuss your claim at (781) 843-2200 or complete our online form.
More Blog Posts:
Massachusetts Workers’ Compensation Benefits Upheld for Employee with Policy Goal of Protecting Employee and Self-Insured Employer, Massachusetts Workers’ Compensation Lawyer Blog, August 11, 2016
Massachusetts Reviewing Board Affirms Decision Awarding Injured Employee Workers’ Compensation Benefits, Massachusetts Workers’ Compensation Lawyer Blog, October 13, 2015