By now, you know that the fundamental requirement for a Workers’ Compensation claim is that the injured worker prove that s/he sustained an injury or contracted an occupational disease in the course of and arising out of employment. And one of the essential elements that must be proved is that the individual was an “employee” of an employer at the time the injury was sustained or the disease was contracted.
With almost alarming frequency, we are seeing a trend whereby employers are attempting to undermine and deny claims and avoid paying premiums by characterizing their workers as independent contractors rather than employees. If the worker is a legitimate independent contractor, then the employer is not required to pay premiums for coverage and claims will be denied if injuries are sustained.
The law is very clear though that simply calling someone an independent contractor or even signing an agreement that specifies the relationship as such does not make it so. Each case is determined based on its own facts and circumstances (Industrial Commission of Ohio v. Laird, 126 Ohio St. 617 (1933)) and, ultimately, the decision will rest on a determination of whether the employer reserved the right to control the manner or means of doing the work (Gillum v. Industrial Commission, 141 Ohio St. 373 (1943)).
In determining the above, the courts will review a variety of factors including who sets the hours, who provides the tools, the method by which the worker is paid, who selects the materials, and whether there is a written agreement, among others. Ohio Revised Code Section 4123.01(A)(1)(c)(i-xx) sets out twenty different criteria that are applied to construction contracts and if at least ten apply, then the individual is considered an employee and thus coverable under a claim.
Recently, the Special Investigations Unit of the Bureau of Workers’ Compensation charged a Northwood, Ohio, roofing contractor with fraud for improperly avoiding premium payments by designating its employees as independent contractors rather than employees. A Wood County, Ohio, jury found them guilty as charged on July 15, 2013. BWC Press release, July 30, 2013.
If you’re injured or diseased as a result of your job and your employer denies coverage asserting that you’re an independent contractor, please remember that you have the right to a hearing to decide whether you are an employee or not. Valuable benefits and protections are at stake. We’re here to help if needed.