DEFENDING YOURSELF AGAINST A WORKER’S COMP CLAIM
Here at the NorthAmerican Transportation Association (NTA), 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 and classified as an independent contractor (IC), so no Worker’s Compensation coverage was in place. As is always the case, the motor carrier quickly points out that because the driver was an IC, they were not obligated to secure Worker’s Compensation insurance.
Nonetheless, that doesn’t ever seem to stop the “Independent Contractor” from trying to hold the trucking company liable for his or her injuries. On the other hand, if the IC has an occupational accident policy, then they may have a hard time proving they were not an IC (and besides, the coverage would pay for their damages).
One of the potent weapons for your legal arsenal is to fight such claims at an AOE/COE hearing. AOE/COE stands for “Arising Out of Employment” and in the “Course Of Employment.” Basically, for an injury to trigger Worker’s Comp benefits, it has to “arise out of employment” and occur in the “course of employment” or it is denied. In other words, the injury must be “proximately caused by employment.”
However, in the case of an IC, there is no employer/employee relationship. “Employment” does not exist between the principal and the IC driver, and therefore if the IC was injured in the course of his or her work, their injuries did not arise out of or occur in the course of employment. Simply put, since the IC was not employed by the motor carrier, his or her Worker’s Compensation claim should be dismissed.
The way to handle this is to promptly set a date for an AOE/COE hearing in front of a Worker’s Compensation judge. At this hearing, you will make arguments and put on evidence as to why the injured worker is actually an IC and therefore not entitled to Worker’s Compensation benefits. The way we do this is to analyze the specific facts involving the IC and his relationship with the motor carrier. Then, apply the applicable factors of your applicable state (the legal test used to determine if someone is an IC or employee) to the facts of the case, and hopefully convince the judge that the driver is truly an IC and therefore not entitled to Worker’s Compensation benefits.
If you want to completely bury this subject of misclassification so that it doesn’t come back and haunt you, then you must put enough “nails in the coffin lid” so that it doesn’t open up again. NTA can assist both the motor carrier and the IC so that they can coexist together in business in their applicable states. If you win the argument, the claim is automatically dismissed. Of course, the applicant (the injured worker making the claim) could appeal that decision, but 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 IC, then the motor carrier is on the hook for the driver’s injuries, and possibly a lot more. 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 IC. The suing driver’s lawyers will argue vigorously that the driver was a common-law employee who was misclassified as an IC, and therefore is entitled to benefits. You will argue vigorously that the driver truly is an IC and therefore has no rightful claim against you, the motor carrier, for benefits.
Be advised that the Worker’s Compensation judges are extremely experienced in making these determinations. It has been our observation that Worker’s Compensation judges really 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 properly classify your drivers and independents, because at the Worker’s Compensation Appeals Board, it could be the difference between owing nothing and owing hundreds of thousands of dollars! And, just like the EDD (Employment Development Dept.), the Worker’s Comp judge will scrutinize the relationship you have with your drivers to see if they have been misclassified.
I hope that you will get your IC agreements and business model set up properly now, so you can enjoy many miles of trouble-free trucking. Worker misclassification is a big deal in California. Trucking companies who use independents should carefully review their contracts and practices in order to comply with the law. We at the NTA can help you with your IC business model and your ability to withstand the toughest scrutiny of anyone alleging that your company is misclassifying its drivers. Let us help you now – call (562) 279-0557 or visit us at www.ntassoc.com today.
WHY YOU SHOULD HAVE OCCUPATIONAL ACCIDENT COVERAGE
Fatal work-related injuries to commercial truck drivers last year reached their highest level in six years, per a summary of preliminary results from the Census of Fatal Occupational Injuries for 2014 just released by the Bureau of Labor Statistics (BLS). BLS said that “transportation and material moving occupations” accounted for the largest share (28%) of fatal occupational injuries of any group of workers last year. Fatal work injuries in this group climbed 3% to 1,289 incidents in 2014, marking the highest total since 2008.
Truck and tractor-trailer drivers incurred their highest total since 2008, with 725 fatalities in 2014. Truck drivers and drivers/sales workers accounted for nearly two out of every three fatal injuries in the overall group (835 of the 1,289 fatal injuries in 2014). Fatal injuries to drivers/sales workers jumped 74% to 54 in 2014. Breaking down the data by incident type, BLS found that in 2014, fatal work injuries related to transportation were up slightly higher, from 1,865 in 2013 to 1,891 in 2014. Overall, transportation incidents accounted for 40% of fatal workplace injuries in 2014. Within the “transportation event” category, BLS said that roadway incidents made up 57% of 2014’s fatal work injury total.
The report also noted that among contracted workers employed outside of construction and oil-and-gas extraction occupations, the largest number of fatal occupational injuries was incurred by heavy truck and tractor-trailer drivers (76 workers). As for the overall national numbers, BLS recorded a preliminary total of 4,679 fatal work injuries last year. That equates to an increase of 2% over the revised count of 4,585 fatal work injuries the agency reported in 2013.
As these numbers and percentages prove, trucking is a very dangerous profession. If you are an owner operator, you need to protect yourself and your livelihood by getting Occupational Accident Coverage now. Don’t wait until it is too late – call NTA today at (562) 279-0557.
