by G. Spencer Mynko, Esq.
Here at Transportation Attorneys, we regularly get calls from trucking companies who are being sued in a claim for Worker’s Compensation benefits. The typical scenario is where a current, or more likely, former Driver files a claim at the Worker’s Compensation Appeals Board (WCAB). Of course, we usually deal with situations where the driver was treated as an independent contractor, and therefore no Worker’s Compensation insurance was in place. As is always the case, the Motor Carrier quickly points out that because the driver was an Independent Contractor, they were not obligated to secure Workers’ Compensation insurance. Nonetheless, that didn’t stop the “Independent Contractor” from trying to hold the trucking company liable for his or her work injuries. We regularly advise and defend companies who find themselves in this very situation.
The way we handle this is to promptly set a date for an AOE/COE hearing in front of the Worker’s Compensation Judge. At this hearing, we will make arguments and put on evidence as to why the injured worker is actually an independent contractor, and therefore not entitled to Worker’s Compensation benefits. The way we do this is to analyze the specific facts involving the independent contractor and his relationship with the motor carrier. We then apply the Borello factors (the legal test used to determine if someone is an independent contractor or employee) to the facts of the case in front of us, and hopefully convince the judge that the driver is truly an independent contractor and therefore not entitled to benefits. If we win this argument, the case/claim is automatically dismissed. (Of course, the applicant – the injured worker making the claim – could appeal that decision). However, if the applicant is unsuccessful in the appeal or, does nothing further, the case will be dismissed for good. On the other hand, if the judge decides that the driver was misclassified as an independent contractor, then the motor carrier is on the hook for the driver’s injuries. This includes being responsible for all medical treatment (past and future) and any disability (past and future).
Of course, The battle will be fought over whether the driver was properly classified as an independent contractor. The driver’s lawyers will argue vigorously that the driver was a common-law employee who was misclassified as an independent contractor, and therefore entitled to benefits. We will argue vigorously that the driver truly is an independent contractor and therefore has no rightful claim against the motor carrier. Be advised that Worker’s Compensation judges are extremely experienced in making these determinations. It has been our observation that Worker’s Compensation judges abhor uninsured employers and will look to hold the motor carrier responsible for the drivers injuries. Again, this is why it is so important that you are careful in classifying drivers as independent contractors, because at the Worker’s Compensation Appeals Board, it could make the difference between owing nothing and owing hundreds of thousands of dollars.
And just like EDD, the Workers Compensation Appeals Board Judge will scrutinize the relationship you have with your drivers to determine if they have been misclassified. (Please refer to my prior articles where I discuss that process in-depth).
We hope that once you utilize Transportation Attorneys to help you get your IC agreements and business model set up, you’ll enjoy many miles of trouble-free trucking. Worker misclassification is a big deal in California. Trucking companies who use independent contractors should carefully review their contracts and practices in order to comply with the law. We are one of the few law firms that focuses on trucking, transportation and logistics with the knowledge and experience to competently guide you through these ever present hazards. We are very experienced in dealing with the distinctions between independent contractors and employees.
We here at Transportation Attorneys can help you with your Independent Contractor business model and your ability to withstand the toughest scrutinization of anyone alleging your company is misclassifying its drivers.
Contact Transportationattorneys.net today!